261 P.3d 1000 (2011)
2011 MT 231
Rohnn LAMPI, Plaintiff and Appellant,
v.
Allen SPEED, Defendant and Appellee.
No. DA 10-0169.
Supreme Court of Montana.
Argued and Submitted February 16, 2011.
Decided September 14, 2011.
*1002 For Appellant: L. Randall Bishop (argued), Jarussi & Bishop, Billings, Montana, Alex Rate, Rate Law Office, Bozeman, Montana.
For Appellee: Randall G. Nelson (argued), Nelson & Dahle, P.C., Billings, Montana.
For Amicus: Lawrence A. Anderson (argued), Attorney at Law, Great Falls, Montana (for Montana Trial Lawyers Association).
Justice BRIAN MORRIS delivered the Opinion of the Court.
¶ 1 The Twenty-Second Judicial District Court, Carbon County, denied motions for summary judgment and judgment as a matter of law filed by Appellant Rohnn Lampi (Lampi). Lampi sought an order that restoration damages constituted the appropriate measure of damages for his fire loss claim. The court also denied Lampi's motion in limine to exclude evidence of diminution in market value of Lampi's property caused by the fire and Lampi's objection to a jury instruction. We apply Restatement (Second) of Torts § 929 as adopted by our decision in Sunburst School Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 338 Mont. 259, 165 P.3d 1079. We reverse and remand for a new trial.
¶ 2 We review the following issue on appeal:
¶ 3 Whether the District Court wrongly denied Lampi's motions to establish restoration damages as the appropriate measure of damages in his case.

FACTUAL AND PROCEDURAL HISTORY
¶ 4 Lampi owns forty acres of land near Red Lodge, Montana. Allen Speed (Speed), Lampi's neighbor, admitted liability for negligently dumping ashes that caused a wildfire that burned the trees and vegetation on Lampi's property. Firefighters saved Lampi's house, but the rest of his property suffered extensive damage from the burn.
¶ 5 Lampi grew up in Red Lodge and purchased the land for a vacation and retirement home. He carefully selected his land for its aesthetic beauty and wild setting. Lampi did not buy the land for investment purposes. Lampi intends to hand the land down to his children and grandchildren. Lampi shot his first deer with his father on this property. Lampi also testified that he intends to take every measure that he can to restore his land back to its pre-fire condition. The fire destroyed 481 pine trees and 687 aspens. Lampi felt particularly fond of the aspen grove directly behind his house that provided shade, privacy, and wildlife viewing.
¶ 6 Speed admitted liability for negligently burning Lampi's land. The parties could not agree, however, on what constituted fair compensation for Lampi's loss. Lampi's estimated cost to replace the lost trees on his land exceeded the decline in monetary value to his property from the fire. Lampi argued that he should be allowed to recover damages to replace the trees and restore his land because he had no plans ever to sell his land and that the loss in monetary value of the property should be deemed irrelevant to him. Lampi based his claim on our recent decision in Sunburst School District No. 2, where we approved a jury award for the plaintiffs' restoration cost that exceeded by seven times the diminution in market value of the affected property.
¶ 7 Lampi brought this action in district court and sought a jury trial to determine damages. Speed admitted liability, so the jury's only duty consisted of determining the amount of damages that Speed owed Lampi for the harm caused to Lampi's land by the fire. Lampi filed several motions to establish that restoration damages represented the appropriate measure of damages for his claim. The District Court denied the motions and the case proceeded to trial.
¶ 8 Lampi and Speed presented expert testimony at trial to establish the amount of Lampi's damages. Lampi's expert, Tom Yelvington (Yelvington), testified that it would cost about $1,050,000 to replant all of the trees and restore the property to pre-fire conditions. Speed's restoration expert, Jim *1003 Cancroft (Cancroft), testified that it would cost about $550,000 to replant trees and restore the property to pre-fire conditions. Both Yelvington and Cancroft testified to less expensive restoration options, but the alternative options did not attempt to restore the property to its original condition. Cancroft testified that the vegetation on the property, especially the aspen grove, naturally would restore itself within a reasonable period of time. Speed's property expert, Tom Wicks (Wicks), valued Lampi's property at $646,000 (not including the house). Wicks testified that the property had lost $193,800 in value as a result of the fire.
¶ 9 The District Court presented the jury with the question of whether the usual diminution in market value or restoration damages to restore the trees constituted the appropriate measure of Lampi's damages. The court first instructed the jury that it could award "the difference in the market value of the property immediately before and immediately after the damage occurred." The court instructed in the alternative that, based on the jury's own consideration of the evidence, it could award reasonable restoration costs with the allowance for natural regeneration "if the jury finds that [diminution in market value] fails to fully compensate the plaintiff." The court overruled Lampi's objection to the instruction. The jury awarded Lampi $250,000. The verdict did not specify whether the jury awarded diminution in market value, restoration damages, or some combination. Lampi appeals.

STANDARD OF REVIEW
¶ 10 This Court reviews de novo a district court's ruling on a summary judgment motion applying the same criteria as the district court pursuant to M.R. Civ. P. 56. Plains Grains L.P. v. Bd. of Co. Commrs. Cascade Co., 2010 MT 155, ¶ 21, 357 Mont. 61, 238 P.3d 332. We also review de novo a district court's ruling on a motion for judgment as a matter of law. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727.
¶ 11 A court may grant summary judgment only if the evidence presented to the court establishes that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56. Lampi bears the initial burden of showing that no genuine issues of material fact exist. PPL Mont., LLC v. State, 2010 MT 64, ¶ 84, 355 Mont. 402, 229 P.3d 421. Once Lampi has met this burden, Speed must present substantial evidence essential to an element of the case to raise a genuine issue of fact. Id.

DISCUSSION
¶ 12 Whether the District Court wrongly denied Lampi's motions to establish restoration damages as the appropriate measure of damages in his case.
¶ 13 Lampi filed two separate motions for partial summary judgment, one before discovery and one after discovery, on the matter of restoration damages. He argued that restoration damages constituted the appropriate measure of damages under Sunburst based on the undisputed facts of this case. The District Court determined that disputed facts existed that precluded it from determining whether Lampi's claim justified restoration damages. Lampi also filed a motion for judgment as a matter of law at the close of trial in which he asked the court to establish the cost of restoration as the appropriate measure of damages. The court denied Lampi's motion.
¶ 14 The parties present different interpretations of this Court's restoration damages rule adopted in Sunburst. Lampi argues that the rule pronounced in Sunburst entitled him to restoration damages as a matter of law because he had established (1) that he suffered a temporary injury, (2) that he had "reasons personal" to restore the property, (3) that he genuinely intends to restore the property, and (4) that the cost of restoration is not disproportionate to the pre-tort value of the property.
¶ 15 Speed counters that the restoration damages rule from Sunburst should not extend to Lampi's claim. Speed argues that Lampi's injuryburned vegetationwill naturally restore itself, unlike the toxic contamination in Sunburst. Speed suggests that *1004 Sunburst applies only to cases involving toxic contamination.
¶ 16 This case presents the Court its first opportunity to interpret and apply Sunburst and the restoration damages rule set forth in Restatement (Second) of Torts § 929. The Court rejects both Lampi's and Speed's interpretation of the rule. The following sections discuss the Court's adoption of the restoration damages rule in Sunburst. We then apply the rule to Lampi's claim.

I. Sunburst.
¶ 17 Montana formerly followed the presumption that diminution in market value constituted the appropriate measure of damages for injury to property. Burk Ranches, Inc., v. State, 242 Mont. 300, 790 P.2d 443 (1990). The Court always had recognized, however, that no single measure of damages can serve in every case to compensate adequately an injured party. Burk Ranches, 242 Mont. at 305, 790 P.2d at 445. Our decision in Sunburst officially rejected any one-size-fits-all approach to property damages. A review of the circumstances giving rise to the decision in Sunburst to broaden the available remedies in property damages cases provides helpful guidance in resolving Lampi's claim.
¶ 18 Texaco Inc. (Texaco) operated a gasoline refinery just outside of the town of Sunburst, Montana. The refinery leaked gasoline that contaminated the groundwater and soil in the town of Sunburst. Sunburst, ¶ 10. Sunburst residents sought $30 million in damages to restore the property to its pretort condition. Texaco objected to an award of restoration damages on the grounds that the cost of remediating the contamination greatly exceeded the market value of the property. The contaminated property had an aggregate market value of approximately $2 million. Id. at ¶ 49. The contamination essentially rendered the property valueless.
¶ 19 The district court instructed the jury to award all costs that "reasonably would be necessary to restore the plaintiffs' property to the condition it would have been absent Texaco's contamination." Id. at ¶ 23. The jury awarded $15 million in restoration damages. Id. at ¶ 25. Texaco appealed the award on the grounds that restoration damages never can exceed a property's market value. Id. at ¶ 29.
¶ 20 The Court upheld the jury's award of restoration damages. Little incentive would exist for tortfeasors to prevent or remediate contamination, especially in parts of Montana where property values are relatively low, if restoration damages could not exceed a property's market value. Id. at ¶ 46. The Court reasoned that limiting Texaco's remediation costs to the pre-tort value of the contaminated property essentially would have provided Texaco with a private right of inverse condemnation. Id. We concluded that "statutory and common laws, such as environmental laws" can compel repair or restoration costs in excess of the diminution in market value. Id. at ¶ 31. The Court adopted the restoration damages rule from Restatement (Second) of Torts § 929 (1979). Sunburst, ¶ 36.

II. Restoration Damages.
¶ 21 Section 929 and Sunburst govern the application of restoration damages in Montana. The law of torts works to ensure that an award of damages restores an injured party as near as possible to the party's pre-tort positionno better, no worse. Sunburst, ¶ 31 (citing Restatement (Second) of Torts § 901 cmt. a (1979)). The difference between the value of property before and after an injury, or the diminution in market value, may constitute an appropriate measure of damages in property damage cases. Sunburst, ¶ 30; Burk Ranches, 242 Mont. at 305, 790 P.2d at 445. We recognized in Sunburst, however, that diminution in market value will not always correspond with a plaintiff's damages resulting from injury to real property. Sunburst, ¶ 37. Certain cases warrant an award of restoration damages in excess of the property's diminution in market value. Sunburst, ¶ 29.
¶ 22 We adopted Restatement (Second) of Torts § 929 and comment b in Sunburst for the calculation of damages to real property. Sunburst, ¶ 36. Section 929 provides in pertinent part:
(1) If one is entitled to a judgment for harm to land resulting from a past invasion *1005 and not amounting to a total destruction of value, the damages include compensation for
(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred[.]
¶ 23 Under § 929 the plaintiff may elect in an "appropriate case" to seek either the diminution in market value or the cost of reasonable restoration as the plaintiff's measure of damages. Restatement (Second) of Torts § 929(1)(a). An "appropriate case" for restoration damages involves temporary damage and reasons personal to the plaintiff to restore property to its former condition. Restatement (Second) of Torts § 929 cmt. b.
¶ 24 The cost of restoring property to its pre-injury condition generally constitutes the appropriate measure of damages for temporary injuries. Restatement (Second) of Torts § 929 cmt. b; Felton Oil Co. v. Gee, 357 Ark. 421, 182 S.W.3d 72, 78 (2004). Section 929 imposes a limitation upon this right. The plaintiff must establish reasons personal to restore the property if the cost of replacing the land to its original condition exceeds the diminution in value. Restatement (Second) of Torts § 929 cmt. b; Sunburst, ¶ 35.
¶ 25 Speed points out that Lampi's injuryburned vegetationdiffers from the injuries in Sunbursttoxic contamination. Speed suggests that this distinction allowed the District Court to reject Lampi's motions to establish restoration damages as the appropriate measure of damages in this case. Speed urged the District Court to follow this Court's rule for damages to vegetation established in Kebschull v. Nott, 220 Mont. 64, 714 P.2d 993 (1986), instead of Sunburst and Restatement (Second) of Torts § 929.
¶ 26 We concluded in Kebschull that the diminution in market value constituted the appropriate measure of damages for destroyed vegetation from a negligently started fire. Kebschull, 220 Mont. at 67, 714 P.2d at 994-95. Speed argued in his summary judgment briefs that Lampi's injuryburned vegetationdid not qualify as the type of injury that the Court contemplated in Sunburst. We disagree.
¶ 27 Kebschull relied on the presumption that diminution in market value constituted the appropriate measure of damages in all property cases. Kebschull, 220 Mont. at 65, 714 P.2d at 994. Property experts testified that no diminution in market value had occurred and that the plaintiff had not suffered damages as a result. The Court had not yet adopted Restatement (Second) of Torts § 929. This Court in Kebschull did not consider whether the case involved a temporary injury or whether "reasons personal" existed to support restoration damages. Kebschull does not limit a court's ability to award restoration damages to replace Lampi's burned vegetation in light of our decision in Sunburst and our adoption of § 929.
¶ 28 Lampi asks the Court to expand the restoration damages rule in Montana. The majority of courts that have applied § 929, including this Court, have considered whether a jury may award restoration damages in excess of the diminution in market value. Sunburst, ¶¶ 28-49. We have concluded that diminution in market value cannot serve as a cap on restoration damages. Id. at ¶ 46. Lampi now asks the Court to rule that restoration damages represent the only appropriate measure of damages in certain circumstances.
¶ 29 Lampi argues that he had presented the court with sufficient evidence before trial to establish that his claim represented an appropriate case only for restoration damages. The restoration damages rule requires plaintiffs to prove two separate elements, rather than the four elements Lampi set forth. Lampi must establish (1) temporary injury and (2) reasons personal in order to establish restoration damages as the appropriate measure of damages in his case. Sunburst, ¶¶ 31-39.
¶ 30 The Court in Sunburst also addressed in a separate section whether Sunburst residents would receive a windfall if restoration damages exceeded the diminution in market value. Texaco had complained that nothing required Sunburst residents to use an award of restoration damages actually *1006 to restore the property. The Court concluded that Sunburst residents had demonstrated through testimony at trial that they genuinely intended to restore the property. Id. at ¶¶ 40-44. Lampi thus reasoned that the restoration damages rule requires him additionally to prove a genuine intent to restore his property as a separate element of the restoration damages rule. Lampi correctly identifies that he must genuinely intend to restore his property in order to satisfy the reasons personal rule.
¶ 31 Sunburst did not create a genuine intent to restore property as a separate element of proof. Neither § 929 of the Restatement, nor the courts that have adopted its reasoning, recognize a genuine intent to restore the property as a separate element of proof. The Restatement and the courts that have addressed this issue instead have analyzed it as part of the reasons personal element. Osborne v. Hurst, 947 P.2d 1356, 1359 (Alaska 1997); Restatement (Second) of Torts § 929. The reasons personal rule requires plaintiff to establish that the award actually will be used for restoration, and, therefore, subsumes this analysis. We examine in turn whether Lampi presented sufficient evidence of each element to satisfy his claim for restoration damages.

Temporary Injury.
¶ 32 We first must analyze whether Lampi presented the court with sufficient evidence to establish that the burned vegetation qualifies as a temporary injury. Restatement (Second) of Torts § 929. An injury qualifies as temporary if the tortfeasor could restore the destroyed property to substantially the condition in which it existed before the injury. Sunburst, ¶ 31 (citing Burk Ranches, 242 Mont. at 306, 790 P.2d at 447); Restatement (Second) of Torts § 929(1); U.S. v. Denver & Rio Grande W. R.R., 547 F.2d 1101, 1104-05 (10th Cir.1977). An injury that would cease to exist once remediation or restoration has been completed qualifies as temporary. Felton Oil, 182 S.W.3d at 78.
¶ 33 Courts in other jurisdictions have concluded that property damage in the form of damage to trees or a loss of trees can be restored, and, therefore, the injury qualifies as a temporary injury under § 929. Osborne, 947 P.2d at 1359 (restoration damages proper after defendant negligently burned property); Heninger v. Dunn, 101 Cal. App.3d 858, 162 Cal.Rptr. 104, 108-09 (1980) (restoration damages proper after defendants cleared trees for a road on plaintiffs' property); Huber v. Serpico, 71 N.J.Super. 329, 176 A.2d 805, 813 (N.J.Super.A.D.1962) (restoration damages proper after defendants negligently logged property); Samson Construction Co. v. Brusowankin, 218 Md. 458, 147 A.2d 430, 435-37 (1958) (restoration damages proper after a construction company wrongly cleared trees from plaintiff's property).
¶ 34 The parties appear to agree that the fire caused temporary damage to Lampi's property. Speed argues that Lampi "temporarily lost the naturally occurring vegetation upon his undeveloped wildland." Speed opined that the trees eventually would regenerate over time with minimal restoration efforts. The restoration of Lampi's property to its original condition may take a substantial amount of time, but the parties recognized that the property, nonetheless, eventually could be restored. This apparent agreement on the temporary nature of the damages comports with the reasoning of other courts on this question.
¶ 35 For example, the defendant in Denver & Rio Grande negligently caused a fire that burned 55 acres of remote government property classified as non-commercial forest land. Denver & Rio Grande, 547 F.2d at 1104. The fire burned vegetation in forested terrain and along rocky outcroppings in the steep canyon walls of Price Canyon, Utah. The court classified the damages as temporary even though "restoration of the tract to its original condition by re-establishing destroyed vegetation would be a long process." Id. at 1104-05.
¶ 36 Application of the Restatement leads us to join other courts that have concluded that tree damage generally constitutes a temporary injury because trees can be replanted and restored. Restatement (Second) of Torts § 929(1). Section 929 allows Lampi to elect restoration damages for his temporary injury. Whether Lampi's loss qualifies *1007 as an "appropriate case" to justify restoration damages in excess of the diminution of market value hinges, however, on whether Lampi presented sufficient evidence of reasons personal to him to restore the property. Restatement (Second) of Torts § 929 cmt. (b); Sunburst, ¶ 36.

Reasons Personal.
¶ 37 The reasons personal rule requires Lampi to prove that he possesses a personal reason to restore the damaged property. Sunburst, ¶¶ 32, 43; Osborne, 947 P.2d at 1359; Kelly v. CB & I Constructors, Inc., 179 Cal.App.4th 442, 450-51, 102 Cal. Rptr.3d 32 (Cal.App.2009). Sunburst provided the first opportunity for this Court to apply the reasons personal rule. We also look to other jurisdictions that have adopted § 929 for guidance on the application of the reasons personal rule. See Bd. of Co. Commrs. Weld Co. v. Slovek, 723 P.2d 1309, 1314-15 (Colo.1986); Roman Catholic Church v. La. Gas, 618 So.2d 874, 877 (La. 1993); Osborne, 947 P.2d at 1359.
¶ 38 The plaintiffs in Sunburst sought restoration damages after Texaco had contaminated plaintiffs' personal residences and a community with a well-known carcinogen benzene. Sunburst, ¶ 38. We recognized that a plaintiff's desire to enjoy and live in his home represents a typical personal reason to seek repair of the property. Id. at ¶ 38 (citing Slovek, 723 P.2d at 1314-15). The plaintiffs also had demonstrated that any award would be used to remediate plaintiffs' property. Id. at ¶ 43.
¶ 39 A landowner's motivation for holding property provides guidance as to whether reasons personal exist. Restoration costs generally constitute the most appropriate measure of damages for a plaintiff who demonstrates a desire to continue to use the damaged property instead of selling it. Sunburst, ¶ 34 (citing Roman Catholic Church, 618 So.2d at 877); Osborne, 947 P.2d at 1359. A restoration award, in contrast, may confer a windfall upon a plaintiff whose only purpose for holding the land is to sell it for profit. Osborne, 947 P.2d at 1359 (citing Dan B. Dobbs, Law of Remedies § 5.2(1), 714-15 (2d ed., West 1993)); Sunburst, ¶¶ 40-44.
¶ 40 Texaco argued that Sunburst residents would receive a windfall if the restoration damages exceeded the diminution in market value as nothing required the residents actually to use the award for restoration. Sunburst, ¶¶ 40-44. Several Sunburst residents testified that their primary objective in the case consisted of cleaning up the contaminants in their community. Id. at ¶ 44. Texaco failed to contradict the residents' testimony. The uncontroverted evidence established that plaintiffs genuinely intended to restore their property. Id. The plaintiffs' reasons personal justified a restoration damages award in excess of the diminution in market value. Id. at ¶ 49.
¶ 41 The plaintiff in Roman Catholic Church operated a low-income housing complex that Louisiana Gas negligently had damaged through a fire. Roman Catholic Church, 618 So.2d at 875. In Sunburst we cited with approval the Louisiana court's conclusion that the plaintiff's desire to provide housing to low income families also constituted a valid personal reason to the plaintiff under § 929 to support restoration damages. Sunburst, ¶ 35 (citing Roman Catholic Church, 618 So.2d at 880).
¶ 42 The defendant in Osborne negligently had burned trees on the plaintiffs' property. The plaintiffs testified that their property and the trees on their property had noncommercial value to them. Osborne, 947 P.2d at 1360. The plaintiffs had selected the property especially because of the wooded character of the property as a place for recreation and as a place to retire. They had no intention of ever selling the property. Id.
¶ 43 The trial court granted summary judgment for the defendant in Osborne and ruled that diminution in market value represented the sole measure of damages for the lost trees. Id. The Alaska Supreme Court reversed and applied the reasons personal rule. Id. The court determined that the plaintiffs had demonstrated sufficient evidence of reasons personal to survive a motion for summary judgment. Id. The trial court should have presented the question to the jury of whether the plaintiffs had established a personal reason to justify restoration costs *1008 to replace the trees and whether the plaintiffs genuinely intended to restore the property. Id.
¶ 44 A trial court should grant summary judgment to establish restoration damages as the appropriate measure of damages if reasonable minds could not differ as to whether a temporary injury and reasons personal exist. Hill v. Cox, 110 Wash.App. 394, 41 P.3d 495, 502 (2002). The trial court in Hill determined that the undisputed evidence established that Hill had purchased the property for recreational purposes and that the lost trees provided a visual buffer that enhanced privacy and aesthetic values. Id. The trial court properly granted summary judgment that restoration damages constituted the appropriate measure of damages. Id.
¶ 45 Like the plaintiffs in Osborne and Hill, Lampi argues that he presented sufficient evidence of reasons personal through depositions and affidavits to support his election of restoration damages. Osborne, 947 P.2d at 1360. Lampi testified that his property had noncommercial value to him and that he did not intend ever to sell the property. Lampi testified that he had specifically selected this piece of property because of the vegetation on the property and because of his history hunting the land. Lampi testified that he intended to retire on the property.
¶ 46 Speed did not dispute Lampi's personal desires to restore the property before the District Court. Speed failed to present any evidence to refute Lampi's claim that he had personal reasons to restore his property. Speed conceded to the District Court that he did "not dispute Lampi's stated future plans for the use of his property." Speed placed little import on Lampi's personal reasons to restore the property. Speed's decision to concede this point likely stems from his position that the restoration damages rule should not apply to Lampi's claim for destroyed vegetation. Supra, ¶¶ 27-29.
¶ 47 Speed made a tactical decision to challenge the appropriateness of restoration damages for destroyed vegetation rather than to challenge Lampi's claims regarding the specific elements of restoration damages. This tactical decision left Speed without a response to Lampi's claims. Speed did not present substantial evidence of a material fact to refute whether Lampi had presented sufficient evidence of temporary injuries or reasons personal. Hill v. Cox, 41 P.3d at 502.
¶ 48 We emphasize that these issues normally present factual questions for the jury to resolve. Osborne, 947 P.2d at 1360. In this instance, however, Lampi presented undisputed evidence of the temporary nature of the injury and his "reasons personal" for seeking to restore the property. Speed opted not to challenge Lampi's claims on these points and instead argued unsuccessfully that damage to vegetation should not be susceptible to restoration damages. These unusual circumstances entitled Lampi to judgment as a matter of law on his claim for restoration damages.
¶ 49 The District Court should have concluded that restoration damages constituted the appropriate measure of damages in this case. PPL Mont., ¶ 84. The District Court failed to inform the parties whether it would apply the restoration damages rule established in Restatement (Second) of Torts § 929 to Lampi's case as a result of its indecision regarding the appropriate measure of damages. The court's failure to denote the proper measure of damages shaped the parties' trial strategies and presentations of evidence.
¶ 50 Lampi further argues that the District Court's refusal to adopt the restoration damages rule as the appropriate measure of damages in his case led to the admission of prejudicial evidence of the alleged diminution in the market value of Lampi's property. The District Court denied Lampi's motion in limine in light of its refusal to adopt restoration damages as the only appropriate measure of damages in Lampi's case. The District Court has not considered whether the alleged diminution in market value of Lampi's property qualifies as relevant evidence if restoration damages constitute the appropriate measure of damages. We decline to address this issue in light of the absence of any decision on the matter from the District Court in this context. Crail Creek Assocs., *1009 LLC v. Olson, 2008 MT 209, ¶ 35, 344 Mont. 321, 187 P.3d 667. The parties may address this evidentiary issue as needed on remand. We likewise decline to address Lampi's challenge to the District Court's jury instruction for these same reasons.
¶ 51 We reverse and remand for a new trial to allow the jury to determine what reasonable amount of damages would restore Lampi's property to its pre-fire condition.
We Concur: MIKE McGRATH, C.J., BETH BAKER, PATRICIA COTTER, MICHAEL E. WHEAT, JIM RICE and JAMES C. NELSON, JJ.


960 F.2d 1002
22 Fed.R.Serv.3d 1063
Clarence Eugene BROWN, Plaintiff-Appellee,v.CRAWFORD COUNTY, GA., Defendant,Alfornia Hatcher, Perry Atkinson, Raymond Corbin, FreddieTidwell, and David Moncrief, individually and in theirofficial capacities as members of the Board of Commissionersof Crawford County, Ga., and John Doe and other unknownindividuals, Defendants-Appellants.
No. 91-8344.
United States Court of Appeals,Eleventh Circuit.
May 20, 1992.

W. Warren Plowden, Jr., Jones, Cork & Miller, Gregory C. Morton, Macon, Ga., Thomas M. Green, Mincey & Green, Roberta, Ga., for defendants-appellants.
Charles A. Mathis, Jr., Mathis, Jordan & Adams, Harold S. Lewis, Milledgeville, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before HATCHETT and BIRCH, Circuit Judges, and MORGAN, Senior Circuit Judge.
MORGAN, Senior Circuit Judge:

1
This case concerns the question of whether county commissioners were entitled to absolute immunity when they voted to place a temporary moratorium on issuing permits for mobile homes in order to study residential county development.   The district court denied the commissioners' motion to dismiss.   Because the commissioners should have been accorded absolute legislative immunity, we reverse with instructions to grant the motion to dismiss.

I. FACTUAL BACKGROUND

2
In 1987, Georgia Woodlands, Inc.  (GWI) purchased a 330-acre tract of property in Crawford County, Georgia, and recorded a plat for a residential subdivision on January 20, 1988.   This subdivision, known as Lake Deerwood, is impressed with restrictive covenants prohibiting mobile or manufactured homes and limiting the subdivision to conventional site-built houses.   On March 11, 1989, plaintiff-appellee Clarence Eugene Brown, a land developer, purchased a 195-acre tract of land situated across the street from Lake Deerwood.   Under the existing zoning regulations, Brown's property was zoned as an agricultural-residential district.   The previous owners of Brown's land had received approval from the Crawford County Planning and Zoning Commission (Planning and Zoning Commission) to develop the land as a residential subdivision, allowing manufactured or singlewide and doublewide mobile homes.1

3
Following his purchase of the land, Brown appeared at a regularly scheduled meeting of the Planning and Zoning Commission and presented for approval a plat for a residential subdivision of his property, known as Wildwood Estates.   Brown also advised the Planning and Zoning Commission that he intended to develop the subdivision for mobile homes.   At the time that Brown purchased his property, Lake Deerwood was being developed, and GWI senior vice president William E. Beasley was constructing a residence there.   Beasley openly expressed his concern that potential purchasers of lots in Brown's Wildwood Estates would place mobile homes on those lots and degrade the value of the neighboring property in Lake Deerwood.

4
Beasley and another Crawford County resident sponsored a petition objecting to Brown's proposed subdivision.   The petition, addressed to the Crawford County Board of Commissioners (Board of Commissioners), was signed by more than 100 Crawford County residents.   At the regularly scheduled Board of Commissioners meeting on April 3, 1989, Beasley and a number of county residents presented their petition, and discussed their concerns regarding Brown's proposed mobile home subdivision.

5
Thereafter, the Board of Commissioners instructed the county attorney to draft a resolution placing a temporary moratorium of general application on mobile home permits for the southeastern portion of Crawford County, encompassing approximately one third of Crawford County, consisting of approximately 150 square miles.   The moratorium was to be effective pending the completion and review of a comprehensive development plan being prepared by the Middle Georgia Development Center, which had been requested by the Board of Commissioners in the spring of 1988, to submit a development plan for Crawford County with recommendations for amendments and new zoning regulations.2  The Board of Commissioners decided to call a special meeting on April 5, 1989, to review the proposed resolution.

6
The moratorium resolution was presented at the special meeting.   The proposed moratorium prevented the county from issuing mobile home permits on any included property containing less than twenty-five acres unless the property was part of a subdivision which had received final plat approval prior to the moratorium and in which one or more lots had been deeded to individual purchasers by the developer.   The moratorium also excepted cases in which application for a mobile home permit had been made prior to passage of the moratorium, and the applicant had expended funds or otherwise substantially changed position based upon assurances from zoning officials that mobile homes were a permitted use.   The period of the moratorium was to be ninety days, subject to continuance for an additional ninety-day term if the Board of Commissioners had not acted on the recommendations of the Middle Georgia Development Center by adopting a revised zoning plan.   The Board of Commissioners voted unanimously to enact the proposed moratorium at its special meeting on April 5, 1989.

7
Brown and other land developers affected by the moratorium received a copy of the resolution from the Board of Commissioners with an explanatory letter from the county attorney, both of which are exhibits to his complaint.   In pertinent part, the letter informed the developers as follows regarding the effect of the moratorium:

8
The resolution should be self-explanatory.   It attempts to protect existing lot owners.   It also attempts to protect developers of mobile home subdivisions who have already sold at least one lot in their subdivision.   As you may know, the Middle Georgia APDC is currently revising Crawford County's zoning ordinance and maps.   Those revisions may affect subdivisions that are now in the process of development.   For the protection of all concerned, it was decided by the Board that mobile home developments should be put on hold pending those revisions.

9
Brown's plat received final approval on April 14, 1989, following adoption of the moratorium.   Because Brown did not obtain final approval and sell at least one lot prior to imposition of the moratorium, no mobile home permits could be issued to prospective purchasers in Wildwood Estates.   Brown, however, could sell lots for the construction of any other occupancy.   At least one other developer was affected similarly by the moratorium.

10
Brown initiated this action under 42 U.S.C. §§ 1983 and 1985 against Crawford County and the Board of Commissioners in their official and individual capacities.   His complaint alleges that the defendants conspired to prevent him from developing his property for the intended purpose as a mobile home subdivision, when the Board of Commissioners enacted a temporary moratorium, which prevented issuing mobile home permits in the portion of Crawford County where Brown's property is located.   He contends that the moratorium violated his rights under the Fifth and Fourteenth Amendments by taking his property without just compensation and depriving him of procedural and substantive due process, and equal protection.3  Brown also claims similar violations under the Georgia Constitution.   His complaint seeks compensatory and punitive damages, declaratory and injunctive relief against the defendants as well as attorneys' fees and costs under 42 U.S.C. § 1988.

II. PROCEDURAL PROBLEMS

11
Review of this case is complicated by docket omissions and unusual procedures employed by the district court.   Defendants-appellants represent that three days after the complaint was filed on August 2, 1989, the district court conducted a hearing on Brown's request for temporary injunctive relief.   There is no transcript of this hearing in the record submitted to this court.   Defendants-appellants state that the district court directed that they either lift the moratorium or be subjected to an injunction accomplishing that result.   Defendants-appellants explain that the moratorium was lifted subsequent to the district court's direction and that court was so advised.4

12
The docket shows that Chief Judge Wilbur D. Owens, Jr. sent a "Memorandum to Counsel" on his letterhead stationery on October 10, 1989.   This memorandum, addressed to Brown's counsel with copies to defendants' counsel and the city attorney, directs the counsel to prepare a delineated discovery order.   Chief Judge Owens admonishes the counsel that "[i]f the court does not receive a proposed Rule 16(b) and Rule 26(f) combined order within thirty (30) days, the court will direct all of you to appear in Macon for a conference preparatory to the court['s] fashioning and entering such orders."   The discovery order was entered by Chief Judge Owens on January 2, 1990.

13
Thereafter, full discovery, including depositions of all the individual defendants-appellants comprising the Board of Commissioners, ensued.   The joint pretrial order was filed on November 7, 1990.   Among the issues for trial, defendants-appellants list:  "Whether the individual county commissioners are entitled to absolute immunity in this case."   Defendants-appellants include the following caveat concerning trial in the joint pretrial order:

14
Defendants contend that they are entitled to a judgment as a matter of law as to all of Plaintiff's claims.   Defendants therefore do not agree that there is any issue for determination by the jury in this action.   Defendants only agree that the issues listed below have been framed by the pleadings.   Plaintiff, however, asserts that Defendants' contentions that they are entitled to judgment as a matter of law are erroneous.

15
The next docket entry available to this reviewing court is the individual defendants-appellants' motion to dismiss on the basis of absolute immunity.   Therein, defendants-appellants contend that their unanimous vote passing the moratorium on issuing mobile home permits in a specified area of Crawford County was an exercise of their legislative decisionmaking authority.   They additionally incorporate by reference their legal arguments and citation of authorities contained in their pretrial brief, filed contemporaneously with their motion to dismiss.   Without explanation and stating that it had "carefully considered" the motion, the district court denied defendants-appellants' motion to dismiss.   The individual defendants-appellants appealed that ruling.

16
Because defendants-appellants' motion to dismiss at issue in this case followed extensive discovery and the district court's pretrial order, this court at oral argument inquired into counsel's reason for filing a motion to dismiss at that stage of the proceedings rather than a summary judgment motion, the expected motion following discovery.   Counsel for defendants-appellants informed the court that the district court had not permitted the filing of their requested summary judgment motion, based upon a local procedure in that court.   Consequently and alternatively, the motion to dismiss was filed because defendants-appellants believed that there was a valid legal basis for dismissing the action against them.

17
Baffled by the district court's denial of a right accorded under Federal Rule of Civil Procedure 56 to file a summary judgment motion, the panel requested supplemental briefs providing and explaining the local procedure that prevented defendants-appellants from filing a motion for summary judgment pursuant to Rule 56.   In response, counsel provided to this court "JUDGES FITZPATRICK'S AND OWENS' PROCEDURES AND POLICIES FOR CIVIL CASES,"5 dated January, 1987.   Currently effective, these "Procedures and Policies" include the following "procedure" for filing motions for summary judgment:

18
Motions for Summary Judgment.   As the decisions of the Eleventh Circuit regularly demonstrate, rarely can it be said without fear of contradiction that "there is no genuine issue as to any material fact."   Because of this the filing of motions for summary judgment is frequently a waste of your time, opposing counsel's time, our clerk's time, and the court's time--not to mention the expense of each party and the taxpayers.   To assist you in avoiding the filing of summary judgment motions that have no possible merit, the court requests that before filing such a motion you advise the court and opposing counsel in person (call the judge for an appointment) or by letter if you desire to file such motion and your factual and legal reasons, succinctly stated, for believing you will prevail on the motion.   Opposing counsel can then respond in person or by letter and the court can suggest whether or not the case seems to be appropriate for summary judgment.   This is not intended to prohibit your filing such motions;  it is only intended to facilitate your doing so.

19
In considering the filing of a summary judgment motion, prepare to include proposed findings of undisputed material facts (with reference to source of facts) and conclusions of law in your motion.   This will be required.6

20
Counsel also supplied this court with their letters to Chief Judge Owens concerning filing a summary judgment motion in this case in compliance with the local "procedure."   After reviewing the facts and applicable law, counsel for defendants-appellants asserts that "the individual commissioners are entitled to absolute immunity in this case as they were acting in their legislative capacity in passing the moratorium."   In response, Brown's counsel concludes that "a motion for summary judgment is inappropriate on the issue of absolute immunity."   Following receipt of counsels' letters regarding filing a summary judgment motion, Chief Judge Owens informed counsel in a one-sentence letter that "I do not believe this is a case that should be decided on motion for summary judgment."   Until this court's request, these letters were not part of the record in this case.7

21
Ostensibly, the local "procedure" purports "to facilitate" and not "to prohibit" the filing of summary judgment motions.   It appears, however, that the district judges utilizing this "procedure" in the Middle District of Georgia effectively are precluding parties from filing summary judgment motions, as in this case.   In their supplemental brief, defendants-appellants state that "the clerk's office in the Macon Division of the Middle District of Georgia will not accept a motion for summary judgment for filing unless it has been approved by the judge."

22
Under Rule 83 of the Federal Rules of Civil Procedure, each district court is authorized to "make and amend rules governing its practice not inconsistent with these rules."8  (emphasis added).   See 28 U.S.C. § 2071(a);  Colgrove v. Battin, 413 U.S. 149, 150-51, 93 S.Ct. 2448, 2449, 37 L.Ed.2d 522 (1973).   District courts are not required to adopt local rules, but they must not circumvent the Federal Rules of Civil Procedure by implementing local rules or "procedures" which do not afford parties rights that they are accorded under the Federal Rules.   See Carver v. Bunch, 946 F.2d 451, 453 (6th Cir.1991) ("[L]ocal court rules ... cannot conflict with the Federal Rules of Civil Procedure, Acts of Congress, and rules of practice and procedure prescribed by the Supreme Court.");  Coady v. Aguadilla Terminal Inc., 456 F.2d 677, 678 (1st Cir.1972) ("[A] local rule cannot be applied if it is contrary to a federal statute or rule."  (citing Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965))).

23
Federal Rule of Civil Procedure 56 makes no allowance for a preliminary "procedure" by the district court for reviewing, with the potential of denying, a party's prospective summary judgment motion.   Essentially, the local summary judgment "procedure" that has been used in the Middle District of Georgia constitutes advance screening.   Under Rule 56, a party is entitled to make a summary judgment motion, which the district court then may decide.9  Indeed, a motion to dismiss for failure to state a claim for which relief can be granted may be converted into a summary judgment motion.   Fed.R.Civ.P. 12(b).

24
The opportunity to move for summary judgment is being denied to practitioners in the Middle District of Georgia as a consequence of the local "procedure" utilized by these district judges.   Because the local "procedure" for filing a summary judgment motion in the Middle District of Georgia violates litigating parties' procedural and substantive rights under Rule 56, we find it to be invalid and direct that it cease forthwith.10  See Miranda v. Southern Pac.  Transp. Co., 710 F.2d 516, 521 (9th Cir.1983) (In addition to concluding that the subject local rule was not inconsistent with any federal law or the Federal Rules of Civil Procedure, the court specifically found that no party's substantive rights were changed.);   cf. Jasinski v. Showboat Operating Co., 644 F.2d 1277, 1279-82 (9th Cir.1981) (The court reversed a grant of summary judgment, where the opposing party filed a timely motion for oral argument, and the district court ruled without allowing oral argument in violation of its local rule and Federal Rule of Civil Procedure 56, resulting in prejudice to the opposing party by not affording it the opportunity to present significant constitutional arguments.).   Effective immediately, parties in the Middle District of Georgia may file summary judgment motions in accordance with Rule 56 without submitting to the former, local preliminary review "procedure."

25
This court is greatly disturbed by the district court's pressing this case through discovery and preparing it for trial, when a valid, absolute immunity defense existed.11  By prolonging this case, the district court failed to serve the purported goals of its local "procedure" of saving the parties as well as the court time and expense.   This case should not have been prepared for trial;  moreover, it should not have undergone discovery.12  In the interest of judicial economy and to refrain from further defeating the purpose of the absolute immunity defense in this case, we will address the motion to dismiss before us as if it had been filed at the appropriate time, despite full discovery.13

III. ANALYSIS

26
A motion to dismiss challenging the legal sufficiency of the complaint to state a claim for which relief may be granted preempts the necessity of a defendant's filing an answer until the motion is decided by the district court.   Fed.R.Civ.P. 12(b).   For a motion to dismiss to be granted, plaintiff's complaint, factually accepted as correct, must evidence that there is no set of facts entitling him to relief.  Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1539 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991).   In such a situation, "Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint on the basis of a dispositive issue of law."  Id. (citing Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989)).

27
Defendants-appellants' motion to dismiss based on absolute legislative immunity was denied in this case without commentary by the district court.  "[D]enial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action."  Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985).   In civil cases, therefore, the Supreme Court has held that "the denial of a motion to dismiss based upon a claim of absolute immunity from suit is [an] immediately appealable" interlocutory order.  Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 499, 109 S.Ct. 1976, 1979, 104 L.Ed.2d 548 (1989) (citing Nixon v. Fitzgerald, 457 U.S. 731, 742-43, 102 S.Ct. 2690, 2697-98, 73 L.Ed.2d 349 (1982));  see Crymes v. DeKalb County, 923 F.2d 1482, 1484 (11th Cir.1991) (per curiam) ("It is clear that the district court's refusal to dismiss the complaint on absolute immunity grounds is an immediately appealable 'collateral order' within the exception to 28 U.S.C. § 1291....").  To preserve its purpose, "entitlement to absolute immunity must be determined as early as possible," and appropriately on a motion to dismiss or for judgment on the pleadings.  Marx v. Gumbinner, 855 F.2d 783, 788 (11th Cir.1988);  see Fed.R.Civ.P. 12(b)(6) & 12(c).

28
"[O]fficials seeking absolute immunity must show that such immunity is justified for the governmental function at issue."  Hafer v. Melo, --- U.S. ----, ----, 112 S.Ct. 358, 363, 116 L.Ed.2d 301 (1991) (citing Burns v. Reed, --- U.S. ----, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)).  "The absolute immunity of legislators, in their legislative functions, ... now is well settled."  Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982) (citations omitted);  see Hafer, --- U.S. at ----, 112 S.Ct. at 363-64 (The Supreme Court has restricted absolute immunity to specified officials, including "legislators carrying out their legislative functions....");  Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 2824, 81 L.Ed.2d 758 (1984) ("The Court has recognized absolute § 1983 immunity for legislators acting within their legislative roles...." (citations omitted)).   While the Supreme Court has extended absolute immunity to state legislators, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), and to regional legislators, Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979), the Court has not yet included local legislators.14  Spallone v. United States, 493 U.S. 265, 278, 110 S.Ct. 625, 633-34, 107 L.Ed.2d 644 (1990).   In Spallone, the Court advised that "some of the same considerations on which the immunity doctrine is based must inform the District Court's exercise of its discretion" in cases involving local legislators.  493 U.S. at 278, 110 S.Ct. at 634.

29
The former Fifth Circuit extended absolute immunity under section 1983 to local legislators "for conduct in the furtherance of their duties."  Hernandez v. City of Lafayette, 643 F.2d 1188, 1193 (5th Cir.  Unit A May 1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982);  see Executive 100, 922 F.2d at 1539 ("Local legislators are entitled to legislative immunity in this Circuit.").   Accordingly, this court has decided that "the absolute immunity inquiry" is determining whether the local legislators were engaging in legislative activity in the particular case under consideration.  Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir.1982), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 791 (1983);  accord Healy v. Town of Pembroke Park, 831 F.2d 989, 993 (11th Cir.1987).

30
Absolute legislative immunity "extends only to actions taken within the sphere of legitimate legislative activity."  Finch v. City of Vernon, 877 F.2d 1497, 1505 (11th Cir.1989).   This court has recognized that "voting, debate and reacting to public opinion are manifestly in furtherance of legislative duties."  DeSisto College, Inc. v. Line, 888 F.2d 755, 765 (11th Cir.1989), cert. denied, 495 U.S. 952, 110 S.Ct. 2219, 109 L.Ed.2d 544 (1990);  see Hudgins v. City of Ashburn, 890 F.2d 396, 406 n. 20 (11th Cir.1989) ("Extrapolating from Supreme Court and former Fifth Circuit precedent, the Eleventh Circuit has concluded that 'the vote of a city councilman constitutes an exercise of legislative decision-making,' which entitles such city council member to absolute immunity since voting is a legislative function."  (quoting Espanola Way, 690 F.2d at 829));  see also Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1062 (11th Cir.1992) (distinguishing legislators' conduct requiring legislative immunity from actions that are not protected).   Additionally, a legislative act is characterized by having a policymaking function and general application.  Crymes, 923 F.2d at 1485.

31
"The regulation of land use is traditionally a function performed by local governments."  Lake Country, 440 U.S. at 402, 99 S.Ct. at 1177;   see Grant v. County of Seminole, 817 F.2d 731, 736 (11th Cir.1987) (per curiam) (" 'Zoning provides one of the firmest and most basic of the rights of local control.' "  (quoting  Stansberry v. Holmes, 613 F.2d 1285, 1288 (5th Cir.), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 112 (1980))).   Zoning and land use decisions by local government officials normally are characterized as a legislative function.   Baytree of Inverrary Realty Partners v. City of Lauderhill, 873 F.2d 1407, 1409 (11th Cir.1989);   see Crymes, 923 F.2d at 1485 ("It is clear that if the Commissioners were performing a legislative function in voting to deny ... a development permit, they would be entitled to absolute immunity from suit.");   Hernandez, 643 F.2d at 1193 ("[L]ocal legislators [voting on a zoning ordinance] are entitled to absolute immunity from federal damage claims for conduct while acting in a legislative capacity....").  By enacting the subject resolution placing a temporary moratorium of general application on issuing mobile home permits for a specified area of Crawford County until a revised zoning development plan could be reviewed, the individual county commissioners were performing a traditional legislative function.   Even if Brown could prove conspiracy or bad faith, an unworthy purpose does not preclude absolute immunity to legislators acting in their legislative capacity.15   Tenney, 341 U.S. at 377, 71 S.Ct. at 788;   see Wood v. Strickland, 420 U.S. 308, 317, 95 S.Ct. 992, 998, 43 L.Ed.2d 214 (1975) (Historically, legislative immunity has been "absolute and consequently d[oes] not depend upon the motivations of the legislators.").   Therefore, defendants-appellants are entitled to absolute legislative immunity.16

IV. CONCLUSION

32
Determining absolute immunity is purely a legal decision for the court;  there is no triable issue for a jury with respect to the defendants-appellants in their individual and official capacities.17  See Marx, 855 F.2d at 788-89.  "[I]ndividual defendants have absolute immunity from any federal suit for damages if their challenged conduct furthers legislative duties."  Baytree, 873 F.2d at 1409 (emphasis added).   Accepting the complaint facts as true, no set of circumstances exists under which Brown could recover against defendants-appellants because of their obvious absolute legislative immunity.   Voting to establish the temporary moratorium was prudent to allow time to review the commissioned development plan.   Additionally, performing the commissioners' elected responsibilities included responding to the concerns of the county citizens.   The facts show nothing more than the conscientious effort of the county commissioners to investigate a potential county zoning problem requested by petition of a significant number of Crawford County residents.

33
Because the individual defendants-appellants clearly were entitled to absolute immunity as a matter of law, the district court's denial of their motion to dismiss is REVERSED, and the case is REMANDED with instructions to grant the motion to dismiss as well as to eliminate the local "procedure" of obtaining permission from the district court to file a motion for summary judgment in the Middle District of Georgia.

1
 At oral argument, counsel explained that both preliminary and final approval from the Planning and Zoning Commission must be obtained before a plat could be recorded preceding deed conveyance.   At that stage only could application for a mobile home permit be made

2
 The parties in this case acknowledge that the area targeted by the moratorium has experienced the greatest growth and development in Crawford County

3
 Brown was not affected singularly;  other land developers also were impacted by the moratorium.   As county commissioners, defendants-appellants were concerned about the proliferation of mobile and manufactured homes in the specified area, which was being developed rapidly.   Such residences generate lower tax revenues than site-built homes.   Potentially, these lesser funds would be insufficient to provide necessary county services, including schools, roads and garbage collection.   Clearly, the intent of the Board of Commissioners in requesting the comprehensive development plan was a revision of the zoning of Crawford County.   Under equal protection analysis, unless a suspect class or a fundamental right is implicated, zoning regulations "must only be rationally related to a legitimate government purpose."  Eide v. Sarasota County, 908 F.2d 716, 722 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991);  City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985);  Executive  100, Inc. v. Martin County, 922 F.2d 1536, 1541 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991);   see Grant v. County of Seminole, 817 F.2d 731, 735 (11th Cir.1987) (per curiam) (County zoning laws excluding manufactured and mobile homes in specific areas were determined to have been "legislated to further legitimate public purposes.").   In addition, "[o]rdinarily a zoning regulation comports with due process if 'there was any possible rational basis for legislation.' "   SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1273 (5th Cir.1988) (quoting  Shelton v. City of College Station, 780 F.2d 475, 481 (5th Cir.)  (en banc), cert. denied, 479 U.S. 822, 107 S.Ct. 89, 93 L.Ed.2d 41 (1986)), cert. denied, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989)
Following the Board of Commissioners' approval, the parties recognize that any amendment, supplement or change to the existing zoning regulations must be submitted in writing to the county zoning enforcement officer, noticed to the public, and a public hearing held thereon.   The Board of Commissioners engaged the Middle Georgia Development Center to provide them with specialized and experienced advice for revising the zoning in Crawford County.   Accordingly, the commissioned comprehensive development plan was preliminary to the notice and hearing procedures required for public acceptance and official zoning changes.   Brown's alleged procedural due process violations, therefore, are premature.   Significantly, the Board of Commissioners saw the need for zoning revisions in Crawford County prior to the initiation of this action by Brown in August, 1989, because the comprehensive development plan was commissioned in the spring of 1988.   A draft of the Crawford County development plan was submitted to the county in the summer of 1989, after imposition of the moratorium.   Not only is Brown's procedural due process claim premature, but also his constitutional contentions relating to the moratorium, a temporary measure pending a final decision regarding Crawford County zoning, are not ripe until the new zoning plan has been adopted.   See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 349, 106 S.Ct. 2561, 2567, 91 L.Ed.2d 285 (1986) ("Our cases uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it.");   accord Executive 100, 922 F.2d at 1540-41;  Eide, 908 F.2d at 722-26.

4
 The docket does show that the district court held an in-chambers hearing on the motion for preliminary injunction on August 25, 1989.   The handwritten minute sheet, filed August 29, 1989, states:  "Attorneys will confer with the County Commissioners and clients and report to the court whether hearing will be necessary next week.  (Tuesday 9:30 AM if hearing is necessary).   Attorneys will call Monday."   The docket indicates no ruling on Brown's request for preliminary or permanent injunctive relief

5
 We note that these "Procedures and Policies" state that there is only one local rule in the Middle District of Georgia:  "There shall be no motion day."   Cf. Fed.R.Civ.P. 78 (Motion Day:  "Unless local conditions make it impracticable, each district court shall establish regular times and places, at intervals sufficiently frequent for the prompt dispatch of business, at which motions requiring notice and hearing may be heard and disposed of;  but the judge at any time or place and on such notice, if any, as the judge considers reasonable may make orders for the advancement, conduct, and hearing of actions.")

6
 A similar procedure is stated for motions for partial summary judgment:
Motions for Partial Summary Judgment.   In rare instances a motion for partial summary judgment will resolve a pivotal issue and materially facilitate disposition of a case.   If so, advise the court and counsel of your desire to file such a motion and of your reasons for believing it will dispose of a pivotal issue.   Remember that partial summary judgments do not dispose of entire cases and therefore are not usually entertained;  such issues can normally be aired and decided at pretrial.
We note that the reasoning justifying this partial summary judgment "procedure" demonstrates a misunderstanding of the usefulness of partial summary judgments in expediting trials by narrowing legal issues and establishing facts not in controversy.   See Fed.R.Civ.P. 56(d);  ODC Communications Corp. v. Wenruth Invs., 826 F.2d 509, 512 (7th Cir.1987) (per curiam) ("The partial summary judgment determines the ownership of that system, at least for the purposes of prejudgment possession, and probably also decides that issue for purposes of a later trial pursuant to Rule 56(d).");   see also Fed.R.Civ.P. 56(c) ("A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.").

7
 We are troubled that the district court's local summary judgment "procedure" precluded complete, informed review by this court because letters exchanged among the parties and the court pursuant to this "procedure" were not reflected on the docket and, therefore, were not part of the record heretofore.   Had the panel at oral argument not inquired into the uncommon timing for filing the motion to dismiss before us, the local "procedure" would have evaded this court.   It should not be necessary for this court to read between the lines of the docket and to ascertain at oral argument the procedure followed in a particular case by the district court.   We emphasize to the district court that it is essential that communications between the trial court and the parties to an action as well as all rulings affecting the procedural rights of parties be shown on the docket and contained in the record to afford complete review by this court.   Parties' procedural rights cannot be sacrificed in the interest of moving busy dockets

8
 Rule 83 also provides that local rules result from action by a majority of the judges of the specific district "after giving appropriate public notice and an opportunity to comment...."  Fed.R.Civ.P. 83;  see 28 U.S.C. § 2071(b).   The local "Procedures and Policies" used in the Middle District of Georgia facially appear to be applicable to only two judges in that district, Chief Judge Owens and Judge Duross Fitzpatrick of the Macon Division.   These "procedures" have not been subjected to the public comment procedure established in Rule 83.   Although not called local rules, the local "procedures" instituted by two judges in the Middle District of Georgia govern the civil procedure of practitioners before these judges.   We stress that the name given to local procedures is irrelevant.   If the purpose of such local procedures, practices or policies is to control practice in a district court in this circuit, such procedures effectively are local rules and must be created in accordance with Rule 83

9
 District courts within this circuit have adopted local rules governing the filing of summary judgment motions.   See, e.g., N.D.Ga. Local R. 220.5;  S.D.Ga. Local R. 6.6;  S.D.Fla. Local R. 10.J.   These rules are based upon and effectuate Federal Rule of Civil Procedure 56;  they do not circumvent that rule

10
 We are cognizant that properly adopted local rules are effective "unless modified or abrogated by the judicial council of the relevant circuit."  28 U.S.C. § 2071(c)(1).   We distinguish this case because we address herein local "procedures" which have not been established as local rules in accordance with Rule 83 and 28 U.S.C. § 2071, but nevertheless are governing practice in the Middle District of Georgia and violating rights accorded to parties under Rule 56.   See United States v. Hastings, 695 F.2d 1278, 1284 (11th Cir.)  (This court previously reviewed a district court local rule and determined that it withstood a constitutional challenge.), cert. denied, 461 U.S. 931, 103 S.Ct. 2094, 77 L.Ed.2d 303 (1983).   We, however, do not foreclose the circuit judicial council's reviewing all of the civil "Procedures and Policies" used in the Middle District of Georgia, and its close monitoring of any revisions made in those local civil procedures
We note the commentary of the Local Rules Project, prepared by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, and containing reviews of the local rules governing civil procedure in district courts nationally in comparison with the Federal Rules of Civil Procedure.   Of the ninety-four federal district courts nationwide with approximately 5,000 local rules, the Local Rules Project reports that the Middle District of Georgia is an "extreme" and notable nationally as an aberration with "only one local rule and just one standing order."   Local R. Project at 1 (1989).   Addressing local rules specifically regarding summary judgment procedure, the Local Rules Project advises:  "Fifty-six jurisdictions have local rules concerning the procedure for obtaining a summary judgment.   Thirty of these jurisdictions have local rules that can conflict with Rule 56 of the Federal Rules of Civil Procedure.   These local rules should, therefore, be rescinded."   Id. at 140 (emphasis added).

11
 We particularly are troubled by the misrepresentation in the local summary judgment "procedure" stating that this court "regularly" finds genuine issues of material fact precluding summary judgment.   Following the Supreme Court's clarification of genuine issues of material fact, this court consistently has upheld district courts' properly granting summary judgments.   See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).   Because the material facts are not disputed, this case would have been appropriate for summary judgment disposition on the legal issue of absolute immunity.   Defendants-appellants, however, were denied this opportunity, even after advising the district court that absolute immunity would be the basis of their summary judgment motion.   They not only raised the absolute immunity defense in their motion to dismiss, but also discussed the supporting legal authority in their pretrial brief filed contemporaneously with their motion to dismiss.   Counsel provided the district court with dispositive precedents for making a decision

12
 "[A]bsolute immunity ... is effectively lost if a case is erroneously permitted to go to trial."  Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2808, 86 L.Ed.2d 411 (1985);  see Harris v. Deveaux, 780 F.2d 911, 913 (11th Cir.1986) ("Absolute immunity is meant to protect not only from liability, but from going to trial at all.").   Additionally, absolute immunity protects from "other burdens attendant to litigation, including pretrial discovery."  Marx v. Gumbinner, 855 F.2d 783, 788 (11th Cir.1988)

13
 We recognize that the thrust of Brown's argument is that absolute immunity was not pleaded in defendants-appellants' answer;  they pled official and qualified immunity.   A motion to dismiss generally is filed in response to the complaint and precedes an answer.   Nevertheless, we will treat the subject motion to dismiss, with its assertion of absolute immunity, as if it had been filed at the appropriate time.   To remand this case to allow defendants-appellants to amend their answer would render the same result and contravene judicial efficiency

14
 The Court has recognized that seven Courts of Appeals have held that local legislators are entitled to absolute immunity.  Spallone v. United States, 487 U.S. 1251, 1259, 109 S.Ct. 14, 19, 101 L.Ed.2d 964 (1988)

15
 It is precisely the historical absoluteness of legislative immunity, despite the legislators' motivations, that precludes this action against defendants-appellants in their individual or personal capacities.   See Hafer, --- U.S. at ----, 112 S.Ct. at 363 ("[I]mmunity from suit under § 1983 is 'predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it'...."  (quoting Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.Ct. 984, 990, 47 L.Ed.2d 128 (1976)));  Harlow, 457 U.S. at 810-11, 102 S.Ct. at 2734 ("We have recognized that the judicial, prosecutorial, and legislative functions require absolute immunity."  (emphasis added)).   In contrast to legislators engaging in their legislative responsibilities, the Court has clarified that "our cases do not extend absolute immunity to all officers who engage in necessary official acts."  Hafer, --- U.S. at ----, 112 S.Ct. at 363 (emphasis added).   In Hafer, the Court distinguished "executive officials [,who] are not entitled to absolute immunity for their official actions."  --- U.S. at ----, 112 S.Ct. at 364

16
 Because we have determined that defendants-appellants are entitled to absolute immunity, we need not address Brown's constitutional contentions

17
 Although Crawford County did not participate in this appeal, the district court should dismiss the case against this remaining defendant on remand.   At this time, Brown has no cause of action against Crawford County except through the alleged discriminatory action of defendants-appellants as county commissioners voting to impose the subject temporary moratorium on mobile home permits.   See Spallone, 493 U.S. at 269, 110 S.Ct. at 629 ("The city, for all practical purposes, therefore, acts through the city council when it comes to the enactment of legislation.").   Until a new Crawford County zoning plan has been finalized and adopted, Brown's constitutional arguments are not ripe.   See infra note 3


403 F.2d 565
Paul DE LUCIA, Appellant,v.ATTORNEY GENERAL OF the UNITED STATES, Appellee.
No. 21030.
United States Court of Appeals District of Columbia Circuit.
Argued February 6, 1968.
Decided March 21, 1968.
Certiorari Denied June 10, 1968.

See 88 S.Ct. 2057.
Mr. Jack Wasserman, Washington, D. C., with whom Mr. David Carliner, Washington, D. C., was on the brief, for appellant.
Mr. Charles Gordon, General Counsel, Immigration and Naturalization Service, of the bar of the Supreme Court of the United States, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
Before EDGERTON, Senior Circuit Judge, and TAMM and ROBINSON, Circuit Judges.
EDGERTON, Senior Circuit Judge:

1
This is an appeal from an order entered by the District Court dismissing an action for lack of jurisdiction. Appellant seeks review of statements by the Chicago District Director of the Immigration and Naturalization Service that appellant is an Italian citizen and a declaratory judgment that he is stateless. We agree that the District Court lacks jurisdiction and affirm.

2
Appellant has extensively litigated the matter of the revocation of his citizenship, United States v. De Lucia, 256 F.2d 487 (7th Cir.), cert. denied, 358 U.S. 836, 79 S.Ct. 59, 3 L.Ed.2d 72 (1958); and the deportation order, De Lucia v. Flagg, 297 F.2d 58 (7th Cir. 1961), cert. denied, 369 U.S. 837, 82 S.Ct. 867, 7 L.Ed.2d 843 (1962). While subsequent habeas corpus proceedings were pending, the parties agreed to remand the matter to the administrative authorities solely to enable appellant to seek any discretionary relief to which he thought himself entitled and to have the special inquiry officer designate the country to which he would be deported. The special inquiry officer denied discretionary relief. The Board of Immigration Appeals affirmed. So also did the Seventh Circuit. De Lucia v. Immigration and Naturalization Service, 370 F.2d 305 (7th Cir. 1966). Again the Supreme Court denied certiorari. 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 784 (1967).

3
During these latter proceedings the questions of appellant's alleged statelessness and of the designation of Italy as a country of deportation were considered. Thus, it is clear that his present claim is only colorably directed at the ministerial act of the Chicago District Director in stating that appellant is a citizen of Italy. Appellant's apparent purpose is again to challenge his deportation order.

4
Section 106(a) of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1105a(a) provides for exclusive review in the appropriate circuit court of "final orders of deportation * * * pursuant to administrative proceedings under section 242(b)."

5
The scope of § 106(a) was discussed by the Supreme Court in Foti v. Immigration and Naturalization Service, 375 U.S. 217, at 229, 84 S.Ct. 306, at 314, 11 L.Ed. 2d 281 (1963), in which the Court said: "Also, it seems rather clear that all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals * * * are likewise included within the ambit of the exclusive jurisdiction of the Courts of Appeals under § 106(a)." See also Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L. Ed.2d 90 (1964); Attorney General v. Bufalino, 125 U.S.App.D.C. 273, 371 F.2d 378 (1966).

6
Thus, the act by the Chicago District Director which appellant seeks to review is clearly subject to the limitation on judicial review of § 106(a) and can only be considered by the Court of Appeals for the Seventh Circuit.

7
Affirmed.


799 So.2d 849 (2001)
Susan Mary Van Tiem HOLLAND, Plaintiff-Appellee,
v.
Rickie Dale HOLLAND, Defendant-Appellant.
No. 34,996-CA.
Court of Appeal of Louisiana, Second Circuit.
November 6, 2001.
*850 Michael Nerren, Benton, Counsel for Appellant.
Gary A. Bowers, Shreveport, Counsel for Appellee.
Before WILLIAMS, GASKINS and CARAWAY, JJ.
WILLIAMS, Judge.
The defendant, Rickie Dale Holland, appeals a judgment ordering him to pay a portion of the private school tuition fees for his minor child, pursuant to LSA-R.S. 9:315.6. We affirm.

FACTS
Plaintiff, Susan Mary Van Tiem Holland, filed suit for divorce against defendant, Rickie Dale Holland, on November 26, 1997. During the end of the marriage, the parties resided in Benton, Louisiana. On February 5, 1998, the trial court signed a joint custody implementation plan, which provided that Mrs. Holland would be the domiciliary parent of the minor child, Rachel Mary Holland. The joint custody plan, signed by both parties, provided in part:
C. Education
Each party will consult with each other and select a school best suited to the child, taking into consideration the parties' economic circumstances and the benefits to be derived from sending the child to such school.
At the same time, the trial court ordered Mr. Holland to pay $125 .00 per week to Mrs. Holland for child support. Mr. Holland was also ordered to maintain a policy of major medical health and hospitalization insurance on Rachel through his employment.
In February 1998, Mrs. Holland and Rachel moved to Broken Arrow, Oklahoma. Rachel completed the third and fourth grade at Dewar Elementary School in Broken Arrow. Thereafter, for the 1999-2000 school year, Rachel completed the fifth grade at Arrowhead Elementary School in Broken Arrow. Although no report cards were placed into evidence, the testimony indicated that Rachel's grades were good, but she was having difficulties in math and spelling. On May 17, 2000, Mrs. Holland filed a rule for modification of child support, whereby she sought an increase in child support based on her change in employment. She also wanted Mr. Holland to pay a portion of the tuition for Rachel to attend private school the next school year. On October 5, 2000, Mr. Holland filed a motion to modify the joint custody implementation plan. He sought to be designated the domiciliary parent, and alleged, among other grounds, that "the minor child has struggled both academically and socially," since she moved to Oklahoma.
At the trial of the rule, Mrs. Holland testified that although Rachel was born in the month of December, she was allowed to enroll early in kindergarten when the couple lived in Michigan. However, Rachel *851 would have been too young to enroll in the Bossier Parish School System, which had a September birthday cut-off date. She completed kindergarten in Michigan. When the family moved to Bossier Parish, Rachel was placed in the first grade, and was one of the youngest children in her class. She continued advancing with the same class.
After Mrs. Holland moved to Oklahoma, Rachel maintained the same advancement until the fifth grade. She then began to have some difficulties with her school work, particularly math and spelling. Mrs. Holland testified that Rachel's teachers suggested that Rachel was too young for the class, and recommended that she be held back and allowed to repeat the fifth grade. Instead, Mrs. Holland had Rachel tutored in math. Rachel passed the fifth grade at the public school.
Mrs. Holland testified that she felt the teachers were too involved in unidentified "personal problems" to provide individual attention to the children. She also felt that Rachel's public school classroom was a "zoo." She was concerned that the children in the middle school Rachel would be attending wore gang-type clothing and body piercings in places other than their ears. She testified that she called Mr. Holland to suggest that the child be placed in a private school, but that he refused. She did not tell him the tuition costs or discuss with him letting Rachel repeat the fifth grade. The cost of the school tuition was $210.00 per month and after-school care was $30.00 per month, based on a 12-month payment plan. Mrs. Holland testified that the private school provided for after-school care, while the public school did not. She acknowledged that the public school had basically the same classes, programs and extra-curricular activities as the private school.
In August 2000, Mrs. Holland enrolled Rachel in the fifth grade class at Trinity Christian School, in Broken Arrow, Oklahoma. Rachel did better academically after she was enrolled in the private school. Although she continued to have problems with math, she was getting mostly "A's" and "B's" with an occasional "C."
Mr. Holland testified that he felt Rachel was doing better than average in public school. He further testified that Mrs. Holland told him she wanted to enroll Rachel in a private school, but he disagreed. Mrs. Holland did not provide any of the documentation regarding enrollment or costs of the private school. He testified that he learned through Rachel that Mrs. Holland had actually enrolled her in the private school. He further testified that Mrs. Holland did not send him all of the report cards and school records for Rachel. Mrs. Holland admitted that she sent only the end-of-year and mid-year report cards to Mr. Holland. She agreed that there was a communication problem between them on issues involving Rachel. Both parents agreed that Rachel is a bright, normal child with no behavioral or learning disabilities.
The trial court, applying LSA-R.S. 9:315.6, found that although the evidence was "not real strong about particular educational needs," under the totality of the circumstances, including the added after-school care for Rachel if she were to continue in the public school system, private school costs would be a reasonable expense to add to the basic child support obligation. Mr. Holland's child support obligation was increased to $221.32 per week and was made retroactive to the date Mrs. Holland's rule was filed.
Mr. Holland appealed, asserting one assignment of error:
Whether the trial judge abused his discretion in ordering an obligor parent *852 to pay a pro-rata share of private school expenses to which he never agreed, which were incurred in large part upon the personal preferences and unsubstantiated fears of the domiciliary parent, and which were awarded as a substitute for an award of child care costs.

DISCUSSION
This issue came before the trial court on a rule to modify the original child support award.[1] The sole issue for this court is whether the trial court abused its discretion in including private school tuition and after-school costs in the basic child-care costs.
LSA-R.S. 9:315.6 provides, in pertinent part:
By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation:
(1) Any expenses for attending a special or private elementary or secondary school to meet the particular educational needs of the child.
To meet the "particular educational needs" of children, private school tuition "may be added" in the calculation of child support. Whether to include such tuition in the basic child support obligation is a factual determination by the trial court which will not be disturbed absent an abuse of discretion. Sobers v. Sobers, 98-0006 (La.App. 1st Cir.12/28/98), 724 So.2d 278; Valure v. Valure, 96-1684 (La.App. 1st Cir.6/20/97), 696 So.2d 685, 687. In addition, LSA-R.S. 9:335(B)(3) provides:
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
This court has held that on judicial review, "it is presumed that all major decisions made by the domiciliary parent are in the best interest of the child and the burden of proving they are in fact not in the best interest of the child is placed on the non-domiciliary parent who opposes the decision." Shaw v. Shaw, 30,613 (La. App.2d Cir.6/24/98), 714 So.2d 906, 910. The language in the original joint custody implementation plan directs that the parties "will consult with each other" regarding Rachel's school. It is unfortunate that there was very little communication between the parents in determining their child's school, but the "communication" requirement does not abrogate the provisions of LSA-R.S. 9:335(B)(3), which give authority to Mrs. Holland to determine the best school for Rachel, subject to judicial review.
Although the trial court found that the "evidence is not real strong about particular educational needs," when one considers, as did the trial court, the totality of the evidence, the record does not support a finding that the trial court abused its discretion in adding the private school tuition and after-school expenses to the basic child support obligation. It is apparent from the parties' pleadings,[2] and their testimony, *853 that the primary issue before the trial court resulted from the fact that Rachel was a bright young lady who was having difficulty adjusting to her classroom environment because she was younger than most of the other children. Mrs. Holland testified that the public school teachers had recommended that she hold Rachel back, beginning with the fourth grade. Yet, Rachel benefitted from individual tutoring sessions.
We conclude that under the facts and circumstances of this case, the trial court did not err in finding that a sufficient particularized educational need existed to justify the addition of private school expenses to the basic child support obligation pursuant to LSA-R.S. 9:315.6.

CONCLUSION
For the foregoing reasons, the trial court's judgment adding the private school tuition and after-school costs as part of the basic child support obligation is affirmed. Costs of this appeal are assessed to the appellant, Rickie Dale Holland.
AFFIRMED.
NOTES
[1]  It appears from the record that Mr. Holland's rule for a change of custody was not pursued.
[2]  Mr. Holland, in his own rule, asserted that Rachel was having a difficult time adjusting to her public school.