author: HUGHES, J.

text:
    REPUBLIC FIRE AND CASUALTY INSURANCE COMPANY v. STATE of Louisiana DIVISION OF ADMINISTRATION, OFFICE OF STATE PURCHASING, and the Louisiana Citizens Property Insurance Corporation.
    No. 2005 CA 2001.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Murphy J. Foster, III, Michael D. Lowe, Baton Rouge, Counsel for Plaintiff/Appellant Republic Fire & Casualty Ins. Co.
    Pamela Perkins, Gregory A. Toney, Baton Rouge, Counsel for Defendant/Appel-lee State of Louisiana Division of Administration.
    John W. Waters, Jr., Christopher M. G’Sell, New Orleans, Counsel for Defendant/Appellee Louisiana Citizens Property Ins. Corp.
    V. Thomas Clark, Jr., Mary G. Erling-son, John M. Delgado, Baton Rouge, Counsel for Intervenor/Appellee The MacNeill Group, Inc.
    Thomas M. Richard, Metairie, Counsel for Intervenor/Appellee Bankers Ins. Co.
    Allen D. Darden, P. Ragan Richard, Betty C. Burke, Baton Rouge, Counsel for Intervenor/Appellee First Premium Insurance Group, Inc.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

1 sThis is an appeal by an unsuccessful respondent from the denial of injunctive relief in a suit contesting an action by the Office of State Purchasing on a “Request for Proposal” (RFP). For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

The Louisiana Citizens Property Insurance Corporation (LCPIC) is a nonprofit corporation created by the legislature to operate insurance plans “which shall function exclusively as residual market mechanisms to provide essential property insurance for residential and commercial property, solely for applicants who are in good faith entitled, but are unable, to procure insurance through the voluntary market.” LSA-R.S. 22:1430. LCPIC performs its functions under a plan of operation in accordance with LSA-R.S. 22:1430.2 and LSA-R.S. 22:1430.7, and exercises its powers through a board of directors established under LSA-R.S. 22:1430.3. To accomplish its purpose, LCPIC is authorized to “cause to be issued policies of insurance to eligible applicants,” and may purchase “reinsurance” on risks insured by the corporation. LSA-R.S. 22:1430.6.

On October 25, 2004, the Office of State Purchasing issued an RFP, on behalf of LCPIC “and its programs of the FAIR and Coastal Plans,” to obtain ^competitive proposals by December 1, 2004 for the purpose of prequalifying respondents who were “interested in providing underwriting, policy issuance and administration, and claims processing services for the LCPIC FAIR and Coastal Plans.” The forty-page RFP detailed administrative and general information, the scope of work/services, the evaluation criteria, and performance requirements. The RFP stated that LCPIC “desire[d] to engage a minimum of two and maximum of four service providers to provide complete policy administration services for the approximately 135,000 policies in force in the [LCPIC] FAIR and Coastal Plans for a term beginning April 1, 2005 and ending March 31, 2008.” RFP respondents were to be evaluated based on a possible 100-point maximum score, awarded in the following categories: insurance industry experience (maximum of 20 points), operational location (maximum of 20 points), general management experience (maximum of 15 points), technical environment (maximum of 15 points), financial stability (maximum of 15 points), corporate liabilities (maximum of 5 points), residual market management experience (maximum of 5 points), and business continuation plan (maximum of 5 points). A minimum score of 66 points was required for prequalification.

Following evaluation of the proposals submitted in response to the RFP, the Office of State Purchasing selected three insurance companies to prequalify: The MacNeill Group, Inc. (MacNeill), Bankers Insurance Company (Bankers), and First Premium Insurance Group, Inc. (First Premium). These three insurance companies received scores of 85.00, 73.75, and 67.50, respectively, in the evaluation process. Republic Fire and Casualty Insurance Company (Republic) and five other proposing insurance companies were not prequalified. Republic received a score of 61.25, and the other five insurers received scores of 62.50, 61.25, 57.50, 52.50, and 28.75.

|¡¿Thereafter, Republic contested the results of the procurement process by filing a protest with the Chief Procurement Officer, which was denied. Republic then appealed to the Commissioner of Administration, who remanded the matter for res-eoring. Rescoring of the proposals by the Office of State Purchasing produced the same outcome. Republic’s subsequent protest filed with the Chief Procurement Officer and appeal to the Commissioner of Administration were denied.

Republic then filed the instant suit in the Nineteenth Judicial District Court seeking injunctive relief and contending the State’s actions in prequalifying only MacNeill, Bankers, and First Premium, and not Republic, violated Louisiana’s laws governing requests for proposals and the procurement process. MacNeill, Bankers, and First Premium filed interventions in the suit asserting that the State did not err in their prequalification. Following a hearing held July 14, 2005, the district court rejected Republic’s demands and dismissed its suit.

Republic then filed an appeal to this court, asserting the district court erred: in failing to find the State was arbitrary and capricious in the evaluation and scoring of the proposals; in holding that the requirement in the RFP directing proposers not holding a certificate of authority from the Louisiana Department of Insurance to submit audited financial statements with their proposals was not a mandatory provision; in its conclusion that the State was not arbitrary and capricious in accepting and evaluating the proposals submitted on behalf of MacNeill and First Premium without audited financial statements; in its conclusion that the State was not arbitrary and capricious in prequalifying First Premium and MacNeill under the RFP based on submitted proposals that did not include audited financial statements; and in not granting Republic’s request for injunc-tive relief.

Ron appeal, LCPIC, MacNeill, Bankers, and First Premium filed motions to dismiss Republic’s appeal on the basis that this court is without subject matter jurisdiction to consider this appeal.

LAW AND ANALYSIS

Any person who is aggrieved in connection with the solicitation or award of a contract shall protest to the chief procurement officer. LSA-R.S. 39:1671(A). A party dissatisfied with the decision of the chief procurement officer may appeal to the commissioner of administration in accordance with LSA-R.S. 39:1681-1683.

Thereafter a party adversely affected by the decision of the commissioner of administration may appeal to the Nineteenth Judicial District Court in accordance with LSA-R.S. 39:1683(E) and 39:1691(A). Review before the Nineteenth Judicial District Court extends to “all kinds of actions, whether for monetary damages or for declaratory, injunctive, or other equitable relief.” LSA-R.S. 39:1691.

Republic has received the review authorized by LSA-R.S. 39:1671, LSA-R.S. 39:1681-1683, and LSA-R.S. 39:1691. Ap-pellees now contend that Republic is not entitled to further review before this court, citing LSA-R.S. 39:1678.1. The pertinent statutes provide:

§ 1678.1. Damages
A. Damages recoverable by any aggrieved person in any action brought pursuant to the provisions of R.S. 39:1671 or otherwise asserted at law, shall be limited exclusively to reasonable costs incurred in connection with the solicitation including bid preparation costs other than attorney’s fees.
B. Except as provided in Subsection E of this Section and R.S. 39:1678(1), damages recoverable by any contractor under any contract entered into pursuant to the provisions of this Chapter, shall be limited exclusively to the actual expenses reasonably incurred in performance of the contract.
|7C. The provisions of R.S. 49:965 shall not apply to actions instituted pursuant to the provisions of this Chapter.
D. Any administrative determination of costs or expenses recoverable by a contractor or aggrieved person under Subsections A and B of this Section shall be subject to the written concurrence of the attorney general.
E. In no event shall damages awarded by the chief procurement officer, his designee, any hearing officer or any court include attorney’s fees or any incidental, indirect, special, or consequential damages, including but not limited to loss of use, revenue or profit whether reasonably certain or not. [Emphasis added.]
§ 1683. Protest of solicitations or awards
A. Scope. This Section applies to an appeal addressed to the commissioner of a decision under R.S. 39:1671(C).
B. Time limitation on filing an appeal. The aggrieved person shall file an appeal within seven days of receipt of a decision under R.S. 39:1671(C).
C. Decision. On any appeal under Subsection A of this Section, the commissioner shall decide within fourteen days whether the solicitation or award was in accordance with the constitution, statutes, regulations, and the terms and conditions of the solicitation. Any prior determinations by the director or his designee shall not be final or conclusive.
D. Notice of decision. A copy of the decision under Subsection C of this Section shall be mailed or otherwise furnished immediately to the protestant or any other party intervening.
E. Finality of decision. A decision under Subsection C of this Section shall be final and conclusive unless:
(1) The decision is fraudulent; or
(2) The person adversely affected by the decision has timely appealed to the court in accordance with R.S. 39:1691 (A). [Emphasis added.]
|s§ 1691. Actions by or against the state in connection with contracts
A. Solicitation and award of contracts. The Nineteenth Judicial District Court shall have exclusive venue over an action between the state and a bidder, offeror, or contractor, prospective or actual, to determine whether a solicitation or award of a contract is in accordance with the constitution, statutes, regulations, and the terms and conditions of the- solicitation. Such actions shall extend to all kinds of actions, whether for monetary damages or for declaratory, injunctive, or other equitable relief.
B. Debarment or suspension. The Nineteenth Judicial District Court shall have exclusive venue over an action between the state and a person who is subject to a suspension or debarment proceeding, to determine whether the debarment or suspension is in accordance with the constitution, statutes, and regulations. Such actions shall extend to actions for declaratory, injunc-tive, or other equitable relief.
C. Actions under contracts or for breach of contract. The Nineteenth Judicial District Court shall have exclusive venue over an action between the state and a contractor who contracts with the state, for any cause of action which arises under or by virtue of the contract, whether the action is on the contract or for a breach of the contract or whether the action is for declaratory, injunctive, or other equitable relief.
D. Limited finality for administrative determinations. In any judicial action under this Section, factual or legal determination by employees, agents, or other persons appointed by the state shall have no finality and shall not be conclusive, notwithstanding any contract provision, regulation, or rule of law to the contrary, except to the extent provided in: R.S. 39:1625, R.S. 39:1671(E), R.S. 39:1672(F), R.S. -39:1673(E), R.S. 39:1683(E), R.S. 39:1684(E), and R.S. 39:1685(E).

These provisions allow review of decisions of the Commissioner of Administration by the district court. No further review is authorized to the courts of appeal. This is in accord with the law relative to appeals in administrative proceedings, and no other provision in the Procurement Code authorizes an additional level of appeal' beyond district court review.

Appellant asserts that the inclusion of the reference to LSA-R.S. 49:965 in LSA-R.S. 39:1678.1(0 was essentially a typographical error, and that the reference should have been to LSA-R.S. 49:965.1 instead. We note that LSA-R.S. |939:1678.1(C) has been amended by 2006 La. Acts, No. 96, effective July 1, 2006, to provide, “The provisions of R.S. 49:965.1 shall not apply to actions instituted pursuant to the provisions of this Chapter.” (LSA-R.S. 49:965.1 allows a “small business” to include a claim for litigation expenses if the court determines that “the agency acted without substantial justification.”) In changing the reference in LSA-R.S. 39:1678.1(0 from LSA-R.S. 49:965 to LSA-R.S. 49:965.1, the Procurement Code is thereby left with only LSA-R.S. 39:1683 and LSA-R.S. 39:1691 to provide authority for judicial review; these statutes provide for review only by the district court.

The Louisiana Administrative Procedure Act (LAPA) applies to all agencies unless excepted by either the LAPA itself or the constitutional provisions and statutes governing each individual agency. The general rule regarding applicability |inof laws is that the more specific governs over the more general. With regard to administrative agencies, the more specific laws are those which govern the agency; these specific laws govern over the more general laws of the LAPA. The provisions of the LAPA were not intended to super-cede specific provisions of other administrative acts, or to supercede the rights and remedies created under those acts. Rather, the LAPA was intended to create pro-eedures in those instances where none exist. Where agency laws are silent, it is the function of the LAPA to fill in the gaps and to provide rules of procedure. When the agency statute upon which a litigant relies establishes a specific procedure for judicial review of the agency’s action, a litigant may invoke the reviewing court’s jurisdiction only by following the statutorily prescribed procedure, unless there can be found within the act a genuine legislative intent to authorize judicial review by other means. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 99-0863, pp. 4-5 (LaApp. 1 Cir. 12/20/00), 774 So.2d 1193, 1197-98, affirmed in part, vacated in part on other grounds, 20010185 (La.10/16/01), 797 So.2d 656.

The LAPA provides that judicial review is available in actions by state administrative agencies, boards, and other entities (as defined by LSA-R.S. 49:951(2)) only when there is a “final decision or order in an adjudication proceeding” as set forth in LSA-R.S. 49:964(A)(1). For purposes of the LAPA, “adjudication” means “an agency proceeding that results in a disposition that is required to be made (by constitution or statute) after notice is given and a hearing is held. Unless some statute or the constitution require[s] a hearing and notice, an agency action is not an adjudication for purposes of the act.” Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 2001-0185, p. 9 n. 7 (La.10/16/01), 797 So.2d 656, 662 n:7.

I^Applying these precepts to the instant procurement action, since there has been no showing that a hearing was required to be held either by constitutional provision or statute, no judicial review by the courts of appeal is authorized under the LAPA. Nevertheless, since the Louisiana Procurement Code is the more specific statutory scheme, the appeal provisions set forth therein apply in the instant case. The Procurement Code grants a right of appeal to the district court to a party aggrieved by an adverse decision of the Commissioner of Administration, but does not authorize another level of review by the courts of appeal. Therefore we must conclude that this court is without jurisdiction to consider Republic’s appeal under the circumstances of this case.

We find no merit in Republic’s argument that this court has entertained appeals of other cases involving the Procurement Code. We have reviewed the cases cited by appellant as well as other cases previously before this court involving the Procurement Code, and find those cases to be distinguishable from the circumstances presented in the instant case. No prior reported case of this court has addressed the effect of LSA-R.S. 39:1678.1(0 on review of procurement disputes by courts of appeal. In most of the published cases, the issue(s) before this court involved matters of procedure. Even in instances where an appellate court is without appellate jurisdiction to review the merits of an administrative proceeding, supervisory jurisdiction may be exercised in cases in which there is a procedural defect in the proceeding. See Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 2001-0185 at p. 11, 797 So.2d at 663.

Other cases involved administrative proceedings in which a hearing was required to be held by the agency because of statutory or constitutional mandate. hi>We note that the jurisprudence has recognized a constitutionally protected property interest in the lowest or highest, as the case may be, responsible bidder in a procurement proceeding to contest the failure of the agency to award a contract in its favor, but no such interest is vested in an unsuccessful bidder. See Airline Construction Company v. Ascension Parish School Board, 568 So.2d 1029, 1032 (La.1990); Haughton Elevator Division v. State, Through Division of Administration, 367 So.2d 1161, 1165 (La.1979); Government Computer Sales, Inc. v. State, Through Division of Administration, 980224, p. 7 (La.App. 1 Cir. 9/25/98), 720 So.2d 53, 57, citing Triad Resources and Systems Holdings, Inc. v. Parish of Lafourche, 577 So.2d 86, 89 (La.App. 1 Cir.1990), writ denied, 578 So.2d 914 (La.1991). Nor does an allegation of irresponsibility made by an unsuccessful bidder entitle that bidder to a hearing to attempt to prove that the low bidder was irresponsible. Government Computer Sales, Inc. v. State, Through Division of Administration, 98-0224 at p. 8 n. 4, 720 So.2d at 57 n. 4. Thus, in the instant case, since Republic did not qualify as the lowest responsible bidder it has no constitutionally protected property interest warranting a hearing and subsequent review to this court. And while both LSA-R.S. 39:1601 and 1672 specifically grant the right to a hearing respectively to bidders disqualified for lack of responsibility and those debarred or suspended from consideration from award of a contract, the protest of an' award was not included in the statutory framework as a situation warranting a hearing. See Government Computer Sales, Inc. v. State, Through Division of Administration, 980224 at p. 9, 720 So.2d at 58.

As discussed above, because an unsuccessful bidder on a state contract does not have a protected interest in being awarded the contract, procedural due process does not require that the bidder be afforded a hearing on its protest of the contract award, and since the relevant provisions of the Procurement Code do not afford a hearing to an “aggrieved person” protesting the award of a contract, the disposition |1sof such a protest does not constitute an “adjudication” within the meaning of the LAPA. See Government Computer Sales, Inc. v. State, Through Division of Administration, 98-0224 at p. 10, 720 So.2d at 58. We conclude that under the particular facts and circumstances of this case, there is no subject matter jurisdiction in this court to review the merits of the propriety of this procurement action.

Furthermore, we find no merit in Republic’s contention that since an injunction was sought in the district court, the matter was thereby transformed into an ordinary proceeding invoking the district court’s original jurisdiction, and thus review by this court is authorized by LSA-C.C.P. art. 3612. Because injunctive relief is specifically enumerated in LSA-R.S. 39:1691 as being encompassed within the district court review authorized under the Procurement Code, these specific review provisions and the limitations contained therein prevail over the general law set forth in LSA-C.C.P. art. 3612. Republic’s claim for injunctive relief is entirely dependant on its prevailing on the merits of appellate review; consequently, seeking review of the denial of injunctive relief is merely a back-door attempt to gain appellate review of the procurement ruling, to which Republic is not otherwise entitled.

Accordingly, we find merit in the motions to dismiss this appeal.

CONCLUSION

For the reasons assigned, we dismiss this appeal. All costs are to be borne by appellant herein, Republic Fire and Casualty Insurance Company.

APPEAL DISMISSED.

      . The board of directors is comprised of: (1) the commissioner of the Department of Insurance or an employee of the Department of Insurance as his designee; (2) the state treasurer or an employee of the Department of the Treasury as his designee; (3) the chairman of the House Committee on Insurance or a member of that committee designated by the chairman; (4) the chairman of the Senate Committee on Insurance or a member of that committee designated by the chairman; (5) five representatives appointed by the governor (one is selected from a list of two nominees from the domestic insurer with the largest direct written premium in the state of the subject lines of business, one is selected from a list of two nominees from an insurer with at least one percent of the aggregate statewide direct written premium of the subject lines of business, and the remaining three representatives are appointed at large); (6) one member appointed by the commissioner from a list of three nominees from the Professional Insurance Agents of Louisiana or its successor; (7) one member appointed by the commissioner from a list of three nominees from the Independent Insurance Agents of Louisiana or its successor; (8) one member appointed by the governor from a list of three nominees from the National Association of Independent Insurers or its successor; (9) one member appointed by the governor from a list of three nominees from the American Insurance Association or its successor; (10) one member appointed by the governor from a list of three nominees from the Alliance of American Insurers or its successor; and (11) one member appointed by the governor from a list of two nominees from the insurer with the largest direct written premium in the state of the subject lines of business. LSA-R.S. 22:1430.3.

      . Louisiana Revised Statute 49:965 provides as follows:
      An aggrieved party may obtain a review of any final judgment of the district court by
      appeal to the appropriate circuit court of appeal. The appeal shall be taken as in other civil cases.

      . Although we agree with appellant that the 2006 amendment to LSA-R.S. 39:1678.1 seems to have been for the purpose of correcting a typographical error, we do not believe the amendment, whether retroactive or not, affects the right to appeal in this case. We note that LSA-R.S. 39:1678.1 is entitled "Damages.” Further, the legislative digest for 2006 La. Acts, No. 96 stated:

        Present law, relative to damages, provides that R.S. 49:965 shall not apply to actions instituted pursuant to the La. Procurement Code. R.S. 49:965 of the Administrative Procedure Act, relative to judicial review, authorizes any aggrieved party to obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal.

        Proposed law changes the reference from R.S. 49:965 to R.S. 49:965.1. R.S. 49:965.1 of the Administrative Procedure Act provides for the right of a small business to recover expenses incurred for administrative hearings when the small business prevails.
      The abstract of the digest for Act 96 states, "Changes reference to provisions of the Administrative Procedure Act that shall not apply to actions instituted pursuant to the La. Procurement Code.” Further, original Senate Bill No. 479, which became Act 96, indicated the change of reference in LSA-R.S. 39:1678.1(0 from LSA-R.S. 49:965 to LSA-R.S. 49:965.1 was "to correct a citation error.” While not controlling, the digest and statements of the legislature as to the purpose of an act are instructive. See Louisiana Associated General Contractors, Inc. v. Louisiana Dept, of Agriculture and Forestry, 2005-0131, p. 14 n. 10 (La.2/22/06), 924 So.2d 90, 99 n. 10. Thus we conclude that LSA-R.S.
      39:1978.1(C) was not amended to substantively remove a provision precluding application of LSA-R.S. 49:965, but rather to correct an error of citation with respect to expenses recoverable in an administrative proceeding. To conclude that removal, from the Procurement Code, of the prior prohibition against the applicability of LSA-R.S. 49:965 means that review by courts of appeal is thereby authorized would be fallacious. The elimination of an exclusion cannot be considered a positive statement of new substantive law. Moreover, regardless of the applicability of LSA-R.S. 39:1678.1(C), as it currently reads, or as amended by 2006 La. Acts, No. 96, the entitlement to review by courts of appeal must be evaluated and determined by reference to the affirmative appellate provisions of the Procurement Code, and where not addressed therein, by application of the laws and interpreting jurisprudence of the Louisiana Administrative Procedure Act. As stated hereinafter, neither of these sources of law provide for review by courts of appeal under the circumstances presented in this case. Whether applied retroactively or not, the 2006 amendment cannot act to create positive law, providing for a right to appeal, not otherwise stated in the law.

      . See also LSA-R.S. 39:1553(A) of the Procurement Code, stating, "To the extent not inconsistent with the particular provisions of this Chapter, the principles of Louisiana law shall supplement its provisions.”

      . Although several cases previously decided by this court may have touched on the merits of a procurement matter, the issue of the subject matter jurisdiction of this court to do so does not appear to have been raised in those cases and was not addressed by the court. Nevertheless, we note that it is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. McGehee v. City/Parish of East Baton Rouge, 2000-1058, p. 3 (La.App. 1 Cir. 9/12/01), 809 So.2d 258, 260.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Peter SCHUYTEN v. SUPERIOR SYSTEMS, INC.
    No. 2005 CA 2358.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.
    Rehearing Denied March 28, 2007.

      G. Steven Duplechain, Mark D. Plai-sance, Baton Rouge, Counsel for Plaintiff/Appellee Peter Schuyten.
    Lesia H. Batiste, Baton Rouge, Counsel for Defendant/Appellant Superior Systems, Inc.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

Lin this suit for unpaid wages, defendant appeals a judgment awarding plaintiff unpaid wages, penalty wages, and attorney fees. For the reasons assigned, we affirm the trial court judgment, as amended.

FACTS AND PROCEDURAL HISTORY

In October 2003, Peter Schuyten (Schu-yten), was hired by David Thomas (Thomas) to work at Superior Systems, Inc. (SSI) as a technician earning $12 per hour. SSI is in the business of selling and leasing cash registers and surveillance cameras to businesses. Approximately two months later, Schuyten was promoted to a position overseeing the camera department and working in camera sales. According to Schuyten, Thomas allowed him the choice of being paid a thirty percent commission on his personal sales or $500 per week plus ten percent commission on the net profit of all camera department sales. He chose the latter option.

On or about March 28, 2004, Schuyten was terminated for cause. On April 13, 2004, he sent a demand letter to SSI requesting payment of a ten percent commission on five specific sales that allegedly occurred prior to his termination. After SSI failed to respond, Schuyten filed suit on July 20, 2004, seeking payment of unpaid commissions on the five sales, penalty wages, reasonable attorney fees, and costs. He also sought an additional commission on another sale for which he claimed he was not paid his full commission. In its answer, SSI denied Schuyten was entitled to any of the claimed commissions. Following trial, the trial court rendered judgment awarding Schuyten $6,720 for unpaid wages, $15,978 for penalty wages, and $3,000 for attorney fees, as well as legal interest and all court costs. SSI has now appealed.

| .ASSIGNMENTS OF ERROR
1.The trial court erred in finding Schuyten proved by a preponderance of the evidence he was entitled to a commission on the Blue Harbor sale, since that sale was not included in his demand letter.
2. The trial court erred in finding Schuyten proved by a preponderance of the evidence he was entitled to commissions on the five sales included in his demand letter.
3. The trial court erred in relying on inadmissible evidence to prove the net profit and commission due on the five sales at issue.
4. The trial court erred in assessing penalty wages and attorney fees; in the alternative, the trial court erred in calculating the penalty wages.

APPLICABLE LAW

Louisiana Revised Statute 23:631 imposes a duty on an employer, upon discharge of an employee, to pay the employee the amount then due under the terms of the employment, whether the employment is by the hour, day, week, or month, on. or before the next regular payday or no later than fifteen days following the date of discharge. An employer who fails or refuses to comply with the requirements of La. R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer either pays or tenders the amount of unpaid wages owed the employee, whichever amount is less. La. R.S. 23:632. However, where there is a good faith question of whether the employer actually owes wages to the discharged employee, the employer’s resistance to payment of wages does not warrant the imposition of penalty wages. Loup v. State School for the Deaf, 98-0329, p. 5 (La.App. 1st Cir.2/19/99), 729 So.2d 689, 692. To recover penalties under La. R.S. 23:632, the employee must 14prove: (1) wages were due and owing; (2) demand for payment was made at the place where the employee was usually paid; and (3) the employer failed to pay upon demand. Cleary v. LEC Unwired, L.L.C., 2000-2532, p. 9 (La.App. 1st Cir.12/28/01), 804 So.2d 916, 923. La. R.S. 23:632 is penal in nature and must be strictly construed. Cleary, 2000-2532 at p. 9, 804 So.2d at 923.

Further, an award of reasonable attorney fees is mandatory in the event an employee brings a well-founded suit for unpaid wages, even if penalty wages are not due. Suits in which the recovery of back wages is granted are considered well-founded. See La. R.S. 23:632; Cleary, 2000-2532 at pp. 9-10, 804 So.2d at 923; Loup, 98-0329 at p. 5, 729 So.2d at 692-93.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

SSI contends the trial court erred in finding Schuyten was entitled to unpaid wages consisting of a ten percent commission on the five sales included in his demand letter. It argues Schuyten failed to sufficiently prove he had earned these commissions at the time of his termination. The sales in question were made to Beene Health Mart Drugs (Beene), Galliano Food Store (Galliano), Don’s Carwash (Don’s), Feliciana Super Valu (Feliciana), and St. Francisville Market (St. Francisville).

There was no evidence that SSI had a written commissions policy. Nor did Schuyten have a written employment contract with SSL At trial, conflicting evidence was presented regarding the amount of sale commission Schuyten was to be paid, as well as whether he earned these commissions only on his personal sales or on all camera department sales. Schuyten testified that when he was promoted Thomas allowed him to choose whether his compensation would be a thirty percent commission on his personal sales or $500 per week plus ten percent commission on the net profit earned on all camera department sales. He testified |fihe chose the latter option. In direct opposition, Thomas testified the agreement was for Schu-yten to be paid a five percent commission on his personal sales only.

After hearing the conflicting evidence, the trial court specifically found Thomas was not a credible witness and concluded Schuyten was entitled to a ten percent commission on the net profit of all sales that originated or emanated from the camera department. For an appellate court to reverse a trial court’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Cleary, 2000-2532 at p. 4, 804 So.2d at 919. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given great deference by the appellate court. Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Cleary, 2000-2532 at p. 4, 804 So.2d at 919. Based on our thorough review of the record, we cannot say the trial court committed manifest error or was clearly wrong in concluding Schuyten was entitled to a ten percent commission on all camera department sales. This finding was based entirely on the trial court’s credibility determinations, which are entitled to great deference.

SSI further argues the trial court erred in accepting Schuyten’s testimony that the sales at issue were completed and his commission earned at the time of his termination. Under La. C.C. art. 2456, a sale is complete “between the parties as soon as there is an agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid.” Patterson v. Alexander & Hamilton, Inc., 2002-1230, p. 6 (La.App. 1st Cir.4/2/03), 844 So.2d 412, 416. Generally, when sale commissions are at issue, the inquiry of whether a wage was actually earned focuses on what work associated with the sale remained at the time of the employee’s discharge. See Graves v. Automated Commercial Fueling Corporation, 2005-2561 (La.App. 1st Cir.11/3/06), 950 So.2d 759; Patterson, 2002-1230 at p. 7, 844 So.2d at 416; Becht, 2001-1091 at p. 5, 822 So.2d at 59. Where only collection of the fee is outstanding and collection is beyond the control of the employee, the employee has earned his commission pursuant to La. R.S. 23:634. However, if a substantial amount of time and effort are needed to complete a sale, then the right to a commission may not have been earned. See Patterson, 2002-1230 at p. 7, 844 So.2d at 416-17.

In Nolfo v. Landeche, 339 So.2d 1331 (La.App. 1st Cir.1976), a salesman made several sales prior to his termination. Nevertheless, his former employer argued he was not entitled to full commissions on the sales because obtaining a signature on an order form was only part of the work necessary to complete the sale, and the salesman never completed the post-sale work. However, the salesman testified he was not required under the verbal employment contract to do any more than he had done to complete a sale. The trial court awarded the salesman full commissions on the sales, and this court affirmed (after amending to correct an error in the amount of the award).

In the instant case, Schuyten initially testified his commissions were earned when the sale occurred and a deposit was collected from the customer. He later indicated it was his understanding that his commissions were earned at the point of sale, which he explained was when the customer agreed to purchase the equipment at a certain price.

Schuyten testified the point of sale for each of the five sales at issue occurred prior to his termination. Further, he indicated his responsibilities |7basically were fulfilled once these sales occurred, and he knew of no other duties he had other than scheduling training and installation dates and completing a sheet listing the equipment needed for the installation. According to Schuyten, other departments handled customer training, equipment installation, customer billing, and collection of the purchase price once a sale occurred.

Additionally, Schuyten introduced documentary evidence that invoices were sent or deposits made in the Beene, Feliciana, and St. Francisville sales prior to his March 24, 2004 termination. The original invoice for the Galliano sale was also dated before Schuyten’s termination, although a revised invoice for that sale was dated the day after his termination. Finally, although the invoice for the Doris sale was dated July 6, 2004, there was evidence that a deposit was made for this sale by check dated January 9, 2004. Moreover, it was undisputed that salesmen at SSI had no control over when invoices were prepared, that being a task performed by the accounting department.

To support its contention that the trial court erred in accepting Schuyten’s testimony, SSI relies on the testimony of Thomas and Kent Willis (Willis), a salesman employed by SSI. They both testified it was SSI’s policy that commissions were not earned on sales until delivery, installation, and final payment of the purchase price had occurred. Thus, SSI contends Schuyten had not earned commissions on the sales at the time of his termination because each of these events had not occurred. Further, Thomas testified it was generally the salesman’s responsibility to order equipment and coordinate installation, to make certain the customer was properly trained, and to be available to reassure the customer and answer questions. SSI asserts Schuyten failed to fulfill these post-sale duties with respect to the sales at issue. Thomas also testified it was the salesman’s responsibility to collect deposits on sales. However, Willis indicated | she received a commission once the customer made final payment, even if he did not collect a deposit on the sale.

According to Willis, he was usually present during equipment installation to make certain everything went smoothly and his customers were happy. However, he admitted it was the responsibility of the service department to handle any equipment problems. With respect to the Galliano sale, he testified he and another salesman were the ones who convinced the customer to agree to a final price. He further stated he had to visit Galliano on three occasions following Schuyten’s termination to reinstall cameras for the customer, who kept changing his mind about their location. He admitted he was not required as a salesman to do installations, and indicated he did so in this instance because SSI’s service technicians were busy.

In concluding Schuyten proved he had earned a commission on each of the five sales at the time of his termination, the trial court obviously credited Schu-yten’s testimony regarding his post-sale duties and the point at which sale commissions were earned over the conflicting testimony of SSI’s witnesses. We have thoroughly reviewed the entire record in this matter and find that a reasonable basis exists for the trial court’s findings. According to Schuyten’s testimony, each of the sales at issue occurred prior to his termination, and his responsibilities with respect to these sales were substantially complete at that time. His testimony indicated only a few minor tasks, such as scheduling installation and completing an install equipment sheet, remained to be done at the time of his termination, since it was the responsibility of the service department to install the equipment and of the accounting department to bill the customers. Considering the evidence in its entirety, we cannot say the trial court committed manifest error in concluding Schuyten had earned commissions on the disputed sales at the time of his termination. The trial court’s conclusions were based largely on its credibility |afindings and are entitled to great deference. See Cleary, 2000-2532 at p. 4, 804 So.2d at 919.

SSI also contends the trial court committed manifest error in awarding Schu-yten an additional commission on a sale made to Blue Harbor Point Carwash (Blue Harbor). The record reveals Schuyten and another salesman were each paid a five percent commission on this sale. Thomas explained the commission was split between the two' men because the other salesman initially opened the account and worked on it almost a year before Schuyten became involved.

Schuyten testified he immediately protested to Thomas about receiving only a five percent commission, but did not demand additional payment because he wanted to keep his job. At trial, he asserted he was owed an additional five percent commission on the sale since his agreement with SSI was that he would receive a ten percent sale commission. As previously noted, the trial court accepted Schuyten’s testimony that he was entitled to a ten percent commission. Nevertheless, SSI argues Schuyten could not recover any additional commission on the sale because he did not make a demand for it as required by La. R.S. 23:632.

SSI’s assertion that a demand for payment is one of the requirements for recovery of penalty wages under La. R.S. 23:632 is correct. See Cleary, 2000-2532 at p. 9, 804 So.2d at 923. However, that fact has no bearing on the issue of an employer’s liability for the actual amount of wages due to a discharged | inemployee under his employment contract. Upon the discharge of an employee, La. R.S. 23:631 imposes a mandatory duty on employers to pay any amount then owed to the employee. The duty to pay the actual wages due is not dependent on the employee making a demand for payment. See La. R.S. 23:631; compare Otwell v. Howard Lumber & Supply Company, Inc., 283 So.2d 826, 829-30 (La.App. 2nd Cir.), writ denied, 286 So.2d 364 (La.1973). Thus, the trial court properly awarded Schuyten an additional five percent commission on the Blue Harbor sale.

ASSIGNMENT OF ERROR NUMBER THREE

SSI contends the trial court erred in relying on inadmissible evidence to establish the net profit for the five sales at issue. It was undisputed that the amount of the commission due was based on SSI’s net profit for a sale.

To establish net profits, Schuyten introduced the invoices for each of the five sales, which listed the equipment the customers were billed for and the cost paid by the customers, as well as a cost list showing SSI’s wholesale costs for the equipment sold. SSI objected to the introduction of the cost list on the grounds that “no foundation [was] laid as to where these documents came from” and they “looked like something he [Schuyten] created himself.” However, contrary to these assertions, . Schuyten testified Thomas emailed the list to him while he was still employed at SSI so that he could use it in preparing customer proposals.

All relevant evidence is admissible, except as otherwise provided by law. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more Inor less probable than it would be without the evidence. La. C.E. art. 401. The trial court is granted broad discretion in its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Smith v. Smith, 2004-2168, p. 14 (La.App. 1st Cir.9/28/05), 923 So.2d 732, 742. Under the circumstances, we find no abuse of the trial court’s broad discretion in the admission of the cost list that Schuyten testified was provided to him by his boss in the course of his employment with SSL

We also find no merit in SSI’s contention that, in order to determine SSI’s net profit, the trial court relied on uncertain and speculative evidence as to the equipment installed for each customer and the retail cost of that equipment. While Schu-yten may not have had firsthand knowledge of the specific equipment installed, since he was no longer working for SSI at the time of installation, he introduced invoices establishing the equipment purchased by each customer, as well as evidence of the payment of those invoices. Further, to establish SSI wholesale costs for the equipment, he presented the cost list that he was provided and used for that same purpose during his employment with SSL

Although we find no merit in SSI’s contention that the trial court relied on speculative evidence, our review indicates the trial court did err in determining the net profit on the Galliano sale. It appears the trial court calculated the commission for this sale on a retail figure of $32,000, based on the original invoice sent to Galliano on March 15, 2004. However, the evidence reflects that Galliano was sent a revised invoice for $30,000 on March 24, 2004, which was then further reduced to $29,400. The $29,400 figure should have been utilized in calculating the net profit on this sale, since that was the amount actually paid to SSI. Thus, the award for unpaid wages must be reduced by $260 (ten percent of the $2,600 discrepancy between the figure used by the trial court and the actual amount paid by Galli-ano), resulting in an award for unpaid wages in the amount of $6,460.

I ^ASSIGNMENT OF ERROR NUMBER FOUR

SSI argues the trial court erred in awarding penalty wages and attorney fees because Schuyten failed to prove by a preponderance of the evidence that he had earned any commissions that were unpaid at the time of his termination. This contention is a reiteration of arguments we have already rejected in connection with assignment of error number two. It presents nothing new for our consideration.

To recover penalties under La. R.S. 23:632, the employee must prove: (1) wages were due and owing; (2) a demand for payment must have been made at the place where the employee was usually paid; and (3) the employer failed to pay upon demand. See Cleary, 2000-2532 at p. 9, 804 So.2d at 923. Generally, when there is a good faith question of whether the employer actually owes past due wages, resistance to payment will not trigger penalty wages. Loup, 98-0329 at p. 5, 729 So.2d at 692. However, when the employer is arbitrary, sets out procedural pitfalls for the employee, or is merely negligent in failing to pay past due wages, penalty wages will be assessed. A trial court’s findings of fact with regard to whether the plaintiff is entitled to penalty wages cannot be reversed on appeal in the absence of manifest error. Loup, 98-0329 at p. 6, 729 So.2d at 693. Further, an award of reasonable attorney fees is mandatory in the event an employee brings a well-founded suit for unpaid wages. A suit in which the recovery of back wages is granted is considered well-founded. See La. R.S. 23:632; Cleary, 2000-2532 at pp. 9-10, 804 So.2d at 923; Loup, 98-0329 at p. 5, 729 So.2d at 693.

The evidence in this case established Schuyten was owed unpaid commissions at the time of his termination, he made written demand for most of those commissions, and SSI refused to pay. Further, there was no evidence of a good faith defense justifying SSI’s refusal to pay the commissions Schuyten demanded. Therefore, an award of penalty wages was warranted under La. R.S. |1?,23:632. Further, in suits such as this one where the recovery of unpaid wages is granted, an award of reasonable attorney fees is mandatory. See Cleary, 2000-2532 at p. 10, 804 So.2d at 923.

Finally, SSI argues in the alternative that the trial court erred in computing Schuyten’s average daily wage, which con-, sequently resulted in an incorrect award to him of $15,978 for penalty wages. It argues penalty wages should have been calculated based on the evidence that Schu-yten was paid $12.50 per hour and earned $500 per week for the two weeks preceding his termination. Based on those earnings, SSI contends the maximum award for penalty wages should have been $6,428.57.

SSI’s calculation of penalty wages is incorrect because it is based on what Schuyten allegedly would have earned during a ninety-day period, rather than on “ninety days wages.” Under .La. R.S. 23:632, penalty wages shall be the lesser of (1) ninety days wages, at the employee’s daily rate of pay, or (2) full wages from the time of the employee’s demand for payment until the time the employer shall pay or tender the amount of unpaid wages due. In this case, the lesser amount is ninety days wages because SSI failed to pay or tender the unpaid wages for a period well in excess of ninety days. Therefore, Schuyten was entitled to ninety days wages at his daily rate of pay. See La. R.S. 23:632; Jones v. LeBlanc, 263 So.2d 119, 122 (La. App. 1st Cir.1972).

Nevertheless, there is merit in SSI’s contention that the $15,978 award for penalty wages was excessive. Although it is unclear how the trial court calculated this award, it appears it may have erroneously included Schuyten’s commissions in computing his daily rate of pay. While commissions clearly aré considered “wages” for purposes of La. R.S. 23:631, the jurisprudence indicates they generally |14are not utilized in determining an employee’s “daily rate of pay” for purposes of calculating penalty wages under La. R.S. 23:632. See Potvin v. Wright’s Sound Gallery, Inc., 568 So.2d 623, 628 (La.App. 2nd Cir.1990) (penalty wages calculated on employee’s base salary, without commissions); Howser v. Carruth Mortgage Corporation, 476 So.2d 830, 836 (La.App. 5th Cir.1985) (commissions not utilized in calculation of penalty wages); Hess v. Pembo, 422 So.2d 503, 508 (La.App. 4th Cir.1982) (penalty wages calculated on employee’s minimum salary or draw since her commissions fluctuated). This conclusion is in accord with the fact that La. R.S. 23:632 is penal in nature and must be strictly construed. See Cleary, 2000-2532 at p. 9, 804 So.2d at 923.

In the instant case, the record reveals that Schuyten was paid $500 per week and worked eighty hours in a two-week period. Inferring from this evidence that he worked eight hours a day, five days a week, his daily rate of pay would be $100. Therefore, he was entitled to an award for penalty wages in the amount of $9,000 (ninety days wages at the daily rate of pay of $100). Accordingly, the award for penalty wages in this case must be reduced to that amount.

CONCLUSION

For the reasons assigned, the judgment of the trial court is amended to reduce the award for unpaid wages to $6,460 and to reduce the award for penalty wages to $9,000. The judgment of the trial court is affirmed in all other respects. The costs of this appeal are to be shared equally by the parties.

AFFIRMED, AS AMENDED.

      . Although Thomas was not the owner of SSI at the time he hired Schuyten, Thomas purchased the company at some point during Schuyten's employment.

      . For purposes of La. R.S. 23:631 and 632, wages include sale commissions. See Graves v. Automated Commercial Fueling Corporation, 2006-2561, p. 4 (La.App. 1st Cir. 11/3/06), 950 So.2d 759; Patterson v. Alexander & Hamilton, Inc., 2002-1230 (La.App. 1st Cir.4/2/03), 844 So.2d 412, 416-417; Becht v. Morgan Buildings & Spas, Inc., 20011091 (La.App. 1st Cir.6/21/02), 822 So.2d 56, 58, affirmed, 2002-2047 (La.4/23/03), 843 So.2d 1109, cert. denied, 540 U.S. 878, 124 5.Ct. 289, 157 L.Ed.2d 142 (2003).

      . Louisiana Revised Statute 23:632 provides that:
      Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee's daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

      . We are aware of, but need not consider based on the facts presented in this case, the jurisprudence indicating that the filing of a suit for unpaid wages and the denial of liability by the employer is a sufficient basis for the imposition of statutory penalties and/or attorney fees under La. R.S. 23:632, even when no demand for payment was made prior to the suit. See Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555, 557 (La. 1978); M & D Simon Company v. Blanchard, 389 So.2d 401, 402-403 (La.App. 4th Cir.1980) (on rehearing); Ruffin v. Klein, 209 So.2d 45, 46-47 (La.App. 4th Cir.1968). But see Mitchell v. Fein, 281 So.2d 463, 464 (La.App. 4th Cir.1973).

      . SSI did not appeal the amount awarded for attorney fees.

      . SSI reached this figure by calculating that 12.86 weeks was the equivalent of ninety days, then multiplying that number by $500 (i.e., 12.86 x $500).


author: WHIPPLE, J.

text:
    Hermann MOYSE, III and Janet D. Moyse v. The CITY OF BATON ROUGE, Parish of East Baton Rouge.
    No. 2006 CA 0556.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.
    See also 938 So.2d 1013.
    Floyd J. Falcon, Jr., Baton Rouge, Counsel for Plaintiffs/Appellees Hermann Moyse, III and Janet D. Moyse.
    E. Wade Shows, Lea Anne Batson, Gwendolyn K. Brown, Baton Rouge, Counsel for Defendants/Appellants City of Baton Rouge/Parish of East Baton Rouge and Dale Spillman.

      Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

| ¡>The issue before us on appeal is whether the district court erred in holding that LSA-R.S. 33:4727, which vests a district court with appellate jurisdiction to review a decision by a Board of Adjustment, provides the exclusive means for appealing a decision of a Board of Adjustment. Another panel of this court recently addressed this issue in the context of a prescription objection in a companion case, Moyse v. City of Baton Rouge, 2005-1353 (La.App. 1st Cir.6/9/06), 938 So.2d 1013, 1018, hereafter referred to. as “Moyse Therein, this court held that LSA-R.S. 33:4727 provided the exclusive method of appealing the decision of a Board of Adjustment, and therefore, the local governing body lacked authority to vest appellate jurisdiction over such decisions in a Planning Commission. In accordance with this court’s ruling in the companion case, wé affirm the declaratory judgment appealed from and deny defendant’s peremptory exception raising the objection of prescription.

DISCUSSION

The facts forming the basis for this appeal have been largely stipulated by the parties and also appear in the companion appeal. On April 30, 2004, Hermann Moyse, III and his wife, Janet, purchased Lot 4-B in University Acres Subdivision in Baton Rouge, Louisiana. Prior to commencing construction of a residence on the lot, on November 3, 2004, the Moyses submitted a Request for Waiver of Section 11.3 of the Baton Rouge City-Parish Unified Development Code (UDC) to the Metropolitan Board of Adjustment. Section 11.3 of the UDC requires a 25-foot front yard and a 25-foot rear yard for single-family residences. The Moyses requested a waiver to reduce the front yard to 20 feet and a waiver to reduce the back yard to 8 feet.

|aOn December 20, 2004, the Board of Adjustment granted the Moyses three waivers to allow construction of a single family residence with a 20-foot front yard, an 8-foot rear yard, and a 3-foot side yard. On December 27, 2004, a neighboring property owner, Adam Bourgoyne, filed a written request appealing the Board of Adjustment’s decision to the Metropolitan Planning Commission (Planning Commission) in accordance with Section 3.3 of the UDC. Section 3.3 states that any person aggrieved by a decision of the Board of Adjustment may appeal the decision to the Planning Commission within ten days of the notice of the decision. It further provides that a decision of the Planning Commission may be appealed to the Metropolitan Council within ten days of the receipt of the Planning Commission’s decision.

On February 21, 2005, the Planning Commission reversed the Board of Adjustment’s waivers. The City/Parish did not issue a permit to the Moyses, and the Moyses did not appeal the decision of the Planning Commission to the Metropolitan Council. Instead, on March 24, 2005, the Moyses filed a petition for a writ of mandamus in the Nineteenth Judicial District Court, requesting that the City of Baton Rouge/Parish of East Baton Rouge (City/Parish) be ordered to grant'them a permit to begin construction of their residence in accordance ■ with the waivers granted by the Board of Adjustment. They contended that LSA-R.S. 33:4727 provides the exclusive method for challenging a Board of Adjustment’s ruling. Pursuant to LSA-R.S. 33:4727(E), a person aggrieved by a decision of a board of adjustment created by a local legislative body may challenge the. decision in the district court of the parish or city in which the affected property is located by filing a petition within thirty days after the filing of the decision of the board of adjustment. The Moyses insisted that because no appeal of the Board of ^Adjustment’s decision granting their waiver requests was taken to a district court, the decision of the Board of Adjustment became a final one, and they were entitled to mandamus relief ordering the City/Parish to issue their permit in accordance with the Board of Adjustment’s ruling.

The petition for writ of mandamus was heard on April 22, 2005. The district court denied the petition, finding that the issuance of a building permit was a discretionary act and under LSA-R.S. 33:4773, a writ of mandamus would not lie. , The Moyses filed an appeal challenging the denial of their writ of mandamus. In connection with the appeal of Moyse I, the City/Parish filed for the first time in this court a peremptory exception urging the objection of prescription, arguing that the decision of the Planning Commission became final because the Moyses failed to appeal that ruling to the Metropolitan Council as provided for in Section 3.3 of the UDC.

The Moyses also filed the instant action for declaratory judgment in the Nineteenth Judicial District Court against the City/Parish, seeking a judicial declaration that LSA-R.S. 33:4727 provides the exclusive method of appealing an adverse decision of the Board of Adjustment. They also asked for a judgment decreeing that the Board of Adjustment’s decision granting their waiver requests is a final one and that the Planning Commission lacked jurisdiction to review or reverse the Board of Adjustment’s decision. The City/Parish, however, insisted that the Metropolitan Council, the governing body of a political subdivision operating under a Home Rule Charter, had the authority to provide by ordinance for an appeal to the Planning Commission of a decision of the Board of Adjustment, an agency created by the Metropolitan Council.

| sin December of 2005, the district court rendered a judgment decreeing that: (1) LSÁ-R.S. 33:4727 provides the exclusive method of appealing a decision of the Board of Adjustment; (2) the December 20, 2004 decision of the Board of Adjustment is a final one; and (3) the Planning Commission lacked legal authority or jurisdiction to review and/or reverse the Board of Adjustment’s ruling. This appeal, taken by the City/Parish, followed. In connection with the instant appeal, the City/Parish again filed an exception of prescription, urging that the Moyses’ failure to timely appeal the ruling of the Planning Commission caused their claim to prescribe.

While the instant appeal was pending, on June 9, 2006, another panel of this court handed down, its decision in the companion case, Moyse I. Therein, this court denied the City/Parish’s prescription exception. Moyse, 2005-1353 at p. 9, 938 So.2d at 1018. In that appeal, the City/Parish argued that the Moyses’ cause of action for the issuance of a permit prescribed because they did not appeal the decision of the Planning Commission to the Metropolitan Council as provided for in Section 3.3 of the UDC, but instead filed a petition for a writ of mandamus in the district court. Moyse, 2005-1353 at p. 6, 938 So.2d at 1017. The issue at the heart of the prescription exception was whether the local governing body had the authority to provide that a Board of Adjustment ruling was subject to review by its Planning Commission in light of LSA-R.S. 33:4727’s provision for an appeal of the Board of Adjustment’s decision to a district court.

In Moyse I, this court analyzed the language in the UDC establishing the Board of Adjustment and the Planning Commission, which directly refuted and contradicted the City Parish’s argument that these agencies were established pursuant to the provisions of its Home Rule Charter. Moyse, 2005-1353 at pp. 5-6, 938 So.2d at 1017. Rather, this court concluded that | ¿those agencies were set up in accordance with the statutory provisions of the state. This court stressed that section 3.101 of the UDC, which created the Board of Adjustment, specifically stated that the rights and duties of the Board shall be as provided in LSA-R.S. 33:4727. Moreover, this court observed, Section 3.03 of the UDC vested the Planning Commission with all of the powers and duties conferred .or imposed on Parish Planning Commissions by the general laws of this state. However, this court observed, nothing in the law creating the powers and duties of a Planning Commission, contained in LSA-R.S. 33:101 et. seq., purported to grant appellate jurisdiction of any kind to a Planning Commission. This court reasoned the authors of the UDC were not free to grant the Planning Commission appellate jurisdiction over decisions of the Board of Adjustment in light of Article V, Section 16 of the Louisiana Constitution, which provides that a district court shall have appellate jurisdiction as provided by law, and LSA-R.S. 33:4727, which vested appellate jurisdiction over appeals of decisions of the Board of Adjustment in the district court. Moyse, 2005-1353 at pp. 7-9, 938 So.2d at 1017-1018.

Ultimately, this court held that the UDC’s grant of appellate jurisdiction to the Planning Commission over Board of Adjustment rulings was contrary to state law, and therefore, the decision of the Planning Commission overruling the Board of Adjustment’s decision to grant waivers to the Moyses was void and of no legal effect. Therefore, this court concluded, the Moyses were not required to appeal the Planning Commission’s decision to the Metropolitan. Council, and thus, there was no |7merit to the City/Parish’s prescription exception. Moyse, 2005-1353 at p. 9, 938 So.2d at 1018.

In the instant appeal, the City/Parish challenges the district court’s declaration that LSA-R.S. 33:4727 provides the exclusive means to challenge a decision of the Board of Adjustment, asserting that the local governing authority possessed the power to restrict the authority of the Board of Adjustment by providing that its rulings are subject to review by the Planning Commission. It submits that the district court further erred by declaring the decision of the Board of Adjustment final, because a timely appeal was perfected in accordance with the provisions of Section 3.3 of the UDC to the Planning Commission, a body with legal authority to review and reverse the decision of the Board of Adjustment. Lastly, it urges that the Moyses’ claims have prescribed because they failed to appeal the decision of the Planning Commission to the Metropolitan Council.

As set forth above, all of these arguments have .been thoroughly addressed, and rejected, in the companion case. In accordance with the reasoning of this court in Moyse I, we deny the peremptory exception raising the objection of prescription and affirm the declaratory judgment. All costs of this appeal, in the amount of $273.86, are assessed to appellant, City of Baton Rouge/Parish of East Baton Rouge.

PEREMPTORY EXCEPTION OF PRESCRIPTION DENIED; JUDGMENT AFFIRMED.

      . On the merits of the appeal, this court remanded the case to the district court to reconsider whether the Moyses were entitled to mandamus relief in light of a legislative amendment to a provision relied on by the district court in denying that relief. Moyse, 2005-1353 at pp. 4-6, 938 So.2d at 1016.