author: EDWIN A. LOMBARD, Judge.

text:
    Deborrah MUNCH v. Nicholas BACKER and United Services Automobile Association.
    No. 2010-CA-1544.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 23, 2011.

      Terry B. Loup, Morris Bart, P.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Timothy G. Schafer, Schafer & Schafer, New Orleans, LA, for Defendants/Appel-lees.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

LThis is a personal injury action arising out of a rear-end motor vehicle accident. Deborrah Munch, plaintiff, brought this action against the rear-ending motorist, Nicholas Backer, and his insurer, United Services Automobile Association. Liability was stipulated, and a jury trial commenced solely as to damages. For the following reasons, we affirm the jury verdict judgment.

Facts and Procedural History

On April 20, 2000 at approximately 5:30 p.m., Mr. Backer was driving towards parking lot at the Contemporary Arts Center on Magazine Street in New Orleans when he struck Ms. Munch’s vehicle in the rear, causing it to hit the car in front of her. Ms. Munch filed the current suit on June 15, 2000, alleging injuries to her head, eyes, neck, and spine, claiming that injuries sustained from this accident required her to undergo four surgical procedures; an anterior cervical disc fusion, a lumbar procedure with annuloplasty, a carpal tunnel release of her right wrist, and a carpal tunnel release of her left wrist.

This case first went to trial in March 2004, and this Court affirmed the jury verdict awarding Ms. Munch $7,431.33 in total damages. Munch v. Backer, 2004-1136 (La.App. 4 Cir. 5/31/06), 932 So.2d 759 (Table). The Louisiana Supreme |2Court then remanded the matter to this Court for re-consideration of Ms. Munch’s claim of improper jury selection. Munch v. Backer, 2006-1634 (La.5/18/07), 957 So.2d 141. We then vacated our prior decision and remanded the matter to the district court for a new trial. Munch v. Backer, 2004-1136 (La.App. 4 Cir. 12/5/07), 972 So.2d 1249, writ denied, 2007-2477 (La.3/7/08), 977 So.2d 909.

This second jury trial occurred in May 2010. Liability was stipulated by defendants, and the trial was held solely on the issue of damages. At the conclusion of the trial, the jury entered a verdict awarding damages to Ms. Munch as follows:

General Damages: $12,000.00
Loss of Enjoyment of Life: $3,000.00
Medical Expenses: $6,343.00
Past Lost Wages: $8,960.00
Future Loss of Earning Capacity: $0
TOTAL DAMAGES: $30,303.00

The trial court entered judgment on the jury’s verdict on May 24, 2010, and Ms. Munch timely appealed to this Court.

Assignments of Error

Ms. Munch first asserts that the trial court erred in denying various motions in limine, allowing the admission of certain evidence attacking her credibility as a witness. Ms. Munch next asserts that the trial court committed legal error in failing to properly instruct the jury as to causation. Lastly, Ms. Munch contends that the jury verdict award is abusively low, arguing that the jury committed manifest error in its awarding of damages and in not affording her a presumption of causation.

| ¡¡Evidentiary Rulings

Ms. Munch argues that the trial court erred in denying her motions in limine, thus allowing evidence and testimony concerning the following: 1) a curriculum vitae prepared by Ms. Munch in January 2000 and submitted as part of an employment application in which she falsified her educational background and prior work experience; 2) her employment by Stewart Enterprises in 1999, a year before the accident; and 3) a July 2001 slip-and-fall accident in which Ms. Munch filed suit.

“With regard to admission of evidence at trial, a trial court is allowed great discretion, and determinations to admit or exclude evidence will not be reversed on appeal absent an abuse of that wide discretion.” Jemison v. Timpton, 2009-1166, p. 8 (La.App. 4 Cir. 5/6/10), 38 So.3d 1021, 1027, quoting Miller v. Southern Baptist Hospital, 2000-1352, p. 5 (La.App. 4 Cir. 11/21/01), 806 So.2d 10, 15.

The ability to attack the credibility of a witness is determined by La.Code Evid. art. 607. In this matter, Ms. Munch made false representations in her |4curriculum vitae, claiming that she obtained two degrees from the University of New Orleans although she had none, and had never attended the university. Ms. Munch testified at trial the she put these college degrees on her resume because that is what job applications often required. Ms. Munch’s resume also stated that she had worked for an entity called Marine Equipment Corporation from 1992 to 1996, but Ms. Munch testified that this was not true. She testified that she had worked for two different employers from 1993 through 1995, but they had ended under unfavorable circumstances.

As to the second evidentiary issue, Ms. Munch argues that the court erred in allowing testimony concerning her departure from an employer. In 1999 Ms. Munch worked for Stewart Enterprises, a national provider of funeral home services, where she performed clerical and bookkeeping work. Testimony and evidence from her employment at Stewart Enterprises also revealed complaints concerning her ability to write, and defendants’ trial exhibits included x-rays performed on her right wrist before the subject accident. An employee of Stewart Enterprises testified that Ms. Munch had not worked since October 1999 until her termination on December 23, 1999, and that she was terminated because of an inability to explain her absence from work.

These first two evidentiary errors alleged by plaintiff have no merit, we find that the trial court did not abuse its discretion in allowing trial testimony and evidence concerning Ms. Munch’s curriculum vitae and discharge from Stewart Enterprises. Testimony concerning Ms. Munch’s educational background and inability to hold steady employment was certainly made relevant by her own claim for damages for lost wages and future earning capacity. Not only did Ms. Munch misrepresent her education history on her resume, this misrepresentation was I,.¡included as part of her answers to interrogatories. See La. Civ.Code. art. 1853. Such evidence that questions the character for truthfulness or untruthfulness of a witness is admissible. La.Code Evid. art. 608(A)(1). We agree with the trial judge’s assertion from the pre-trial hearing on the motions in limine, contained in the record, that the credibility of a witness is essential to the outcome of personal injury actions.

Finally, Ms. Munch argues that the trial court should not have admitted any evidence or testimony concerning her lawsuit from a slip-and-fall down a set of stairs that occurred in July 2001. Ms. Munch argues that she “never saw or verified the petition.” This argument is without merit. A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. La. Civ.Code. art. 1853; see also C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003, p. 5 (La.12/3/03), 861 So.2d 156, 159. Evidence of Ms. Munch’s fall down the stairs, and any injuries derived therefrom, is clearly relevant to compare with the damages alleged by plaintiff in the subject accident. Therefore, we find no abuse of discretion in the trial courts decision to allow evidence and testimony concerning Ms. Munchs lawsuit stemming from her July 2001 slip-and-fall.

Jury Instructions on Causation

Ms. Munch next raises assignments of error regarding the trial court’s instructions to the jury concerning causation. Plaintiff first argues that the trial court erred in placing the burden of proof of possible “intervening cause” on the plaintiff. Plaintiff objects to the following language provided to the jury:

The defendant is only responsible for damages caused by his negligent act. He is not responsible for damages caused by separate, independent, or intervening causes of damage. The |Bplaintiff has the burden of proving that her injuries were not the result of separate, independent and intervening causes.

Plaintiff admits that this language concerning intervening causes is the rule consistently held by this Court pertaining to intervening causes, but asks this Court to adopt a different rule in a line of cases from the Third Circuit. However, we see no error in our analysis of the law. See Laurent v. Jolly-Wright, 2005-1499, p. 5 (La.App. 4 Cir. 1/10/07), 950 So.2d 47, 49-50. In this matter, defendant raised the issue of possible separate intervening causes to her injuries by presenting evidence concerning a subsequent motor vehicle accident in May 2001 and a fall down the stairs in July 2001. We find no legal error in the trial court’s jury instructions as to intervening causes.

Plaintiff also argues that the trial court erred in its jury instructions as to causation by providing instructions concerning “substantial factor” causation and not “but-for” causation. In this matter, the jury instructions as to causation read as follows:

In this matter, you must determine if plaintiff has proved by a preponderance of the evidence that she suffered injury and the injury she suffered was caused by the fault of the defendant. The legal term used to express this idea is “proximate cause.” This does not mean that the law recognizes only one cause of any injury, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things may operate at the same time, either independently or together, to cause injury or damage. A defendant’s conduct is a cause if it is a substantial factor in bringing about plaintiffs harm. Causation may be proved by circumstantial evidence, and that evidence need not negate all possible other causes, but it must exclude other reasonable hypotheses with a fair amount of certainty.

Plaintiff has presented no ease law stating that the words “but-for” must be included in jury instructions as to causation. In this matter, within eighteen months of the subject accident, Ms. Munch had two other incidents that required medical |7attention: a May 18, 2001 car accident, and a July 18, 2001 slip and fall down the stairs. In the event of concurrent causes of an accident, the Louisiana Supreme Court has found the appropriate inquiry to be whether the conduct complained of was a “substantial factor” in bringing about the accident. Perkins v. Entergy Corp., 2000-1372, p. 8 (La.3/23/01), 782 So.2d 606, 611. While the trial court is required to correctly advise the jury of the correct legal principles, it is not required to use the specific wording preferred by the parties. Scott v. Dauterive Hosp. Corp., 2002-1364, p. 14 (La.App. 3 Cir. 4/23/03), 851 So.2d 1152, 1163. We find no legal error in the jury instructions pertaining to causation.

Jury’s Application of Housley and Verdict Award

Under Housley v. Cerise, 579 So.2d 973 (La.1991), a plaintiff is entitled to a presumption of causation if three elements are met: 1) the person was in good health prior to the accident; 2) commencing with the accident, the symptoms of the disabling condition appeared and continuously manifested themselves afterwards; and 3) there is a reasonable possibility of a causal connection between the accident and the disabling condition. Housley, 579 So.2d at 980. The jury instructions in this matter listed these Housley factors and further stated; “[t]o rebut this presumption, defendant must show some other particular incident could have caused the injury in question.”

Plaintiff argues that the jury committed manifest error in not affording her the Housley presumption of causation. It is clear that the trial court issued proper instructions to the jury as to the Housley presumption of causation. Whether the jury granted this presumption or whether the jury determined the defendants rebutted the presumption cannot be truly known. The trial testimony, however, shows that Ms. Munch was not able to prove that she had good health prior to the 1 asubject motor vehicle accident of April 20, 2000. See Miller v. Tulane University Hospital, 2009-1740, pp. 7-9 (La.App. 4 Cir. 5/12/10), 38 So.3d 1142, 1146-47 (plaintiff not afforded Housley presumption when unable to prove first element of good health prior to subject accident). We can only take plaintiffs assignment of error on Housley to be identical with her general claim that the jury committed manifest error in its awarding of damages.

General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. Duncan v. Kansas City So. Ry. Co., 2000-0066, p. 13 (La.10/30/00), 773 So.2d 670, 682. The standard of review applicable to a general damages award is the abuse of discretion standard. Bouquet v. Wal-Mart Stores, Inc., 2008-0309, pp. 4-5 (La.4/4/08), 979 So.2d 456, 459. The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Id.

“The discretion vested in the trier of fact is ‘great’, and even vast, so that an appellate court should rarely disturb an award of general damages.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Although reasonable persons may disagree regarding an award of general damages in a particular case, “[i]t is only when an award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Id. Only if an abuse of discretion is found will the reviewing court refer to prior awards, and then only for the purpose of determining the highest or lowest point within the court’s discretion. Guillot v. DaimlerChrysler Corp., 2008-1485, p. 30 (La.App. 4 Cir. 9/24/10), 50 So.3d 173, 196.

A jury’s determination of the amount, if any, of lost earning capacity is an issue of fact subject to the manifest error standard of review. Ryan v. Zurich American Ins. Co., 2007-2312, p. 13 (La.7/1/08), 988 So.2d 214, 222-23. Medical expenses are a component of special damages. Cormier v. Colston, 2005-0507, p. 9 (La.App. 3 Cir. 12/30/05), 918 So.2d 541, 547. When a trier of fact assesses special damages, the discretion is more limited or narrower than the discretion to assess general damages. Dufrene v. Gautreau Family, L.L.C., 07-467 p. 22 (La.App. 5 Cir. 2/22/08), 980 So.2d 68, 83. The standard of review, however, is still that of abuse of discretion. Id.

This is not a case that turns on causation, especially given that liability was stipulated. This is a simple personal injury and resulting damages case that hinges primarily upon credibility. Our review of the trial testimony and evidence reveal no abuse of discretion by the jury. The total damage award of $30,303.00 is not an abuse of the jury’s vast discretion. Ms. Munch herself proved to be an untruthful witness. The trial testimony revealed that from 1992 through 2000, she had only worked for a full year once, in 1994. According to Nathaniel Fentress, plaintiffs own testifying vocational rehabilitation expert, Ms. Munch was a bookkeeper and clerical worker, and not an accountant, and not a C.P.A. The trial testimony of numerous witnesses, including Ms. Munch herself, revealed a clear inability to hold consistent employment and to appear for work throughout the decade preceding the subject accident. The jury did not abuse its discretion in awarding $8,960.00 in past lost wages and zero dollars for loss of earning capacity. See Ryan, 2007-2312, pp. 13-14, 988 So.2d at 223.

ImThe jury also did not abuse its discretion as to damages for medical expenses. Ms. Munch had an x-ray performed on her wrist prior to the subject accident. Following the subject accident, she did not go to the emergency room, while she did after her May 18, 2001 car accident. While at the emergency room following this second accident, Ms. Munch did not tell her treating physician that she was having neck surgery within five days. She did not attend most of her physical therapy sessions. Her physical therapist, Chesson Clement, testified that she was engaged in clear “symptom magnification.” While she claimed to have poor rotation of her neck in therapy, Mr. Clement witnessed her backing out of his clinic’s parking lot with her head moving freely. Testimony from the various physicians also revealed that she felt pain in her wrists following her July 2001 fall down the stairs, not after the subject accident. The award of general damages, loss of enjoyment of life, and medical expenses given by the jury cannot be said to constitute an abuse of discretion. The jury did not have sufficient evidence or testimony to connect plaintiffs surgeries with the subject accident, and awarded an appropriate total damage award for soft-tissue injuries to a plaintiff it found not completely credible. In essence, trial testimony does not reveal an abuse of discretion by the jury in its total damages award.

Conclusion

This Court finds no abuse of discretion in the trial court’s evidentiary rulings. We find no legal error in the trial court’s jury instructions pertaining to causation. We find no abuse of the jury’s vast discretion in its award of damages. The judgment of the trial court is affirmed.

AFFIRMED

      . Art. 607. Attacking and supporting credibility generally
      A. Who may attack credibility. The credibility of a witness may be attacked by any party, including the party calling him.
      B. Time for attacking and supporting credibility. The credibility of a witness may not be attacked until the witness has been sworn, and the credibility of a witness may not be supported unless it has been attacked. However, a party may question any witness as to his relationship to the parties, interest in the lawsuit, or capacity to perceive or to recollect.
      C. Attacking credibility intrinsically. Except as otherwise provided by legislation, a party, to attack the credibility of a witness, may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony.

      D.Attacking credibility extrinsically. Except as otherwise provided by legislation: (1) Extrinsic evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.

        (2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice, (emphasis added).


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    GRIESHABER FAMILY PROPERTIES, LLC, RJ and AG Schoen Family Properties, LLC & Josephine Wagner Properties, LLC v. IMPATIENS, INC.
    No. 2010-CA-1216.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 23, 2011.

      Robert A. Barnett, Guste Barnett Schlesinger Henderson & Alpaugh L.L.P., New Orleans, LA, for Plaintiffs/Appellees.
    Gilbert R. Buras, Jr., New Orleans, LA, for Superior Seafood, L.L.C.
    Charles L. Stern, Jr., Jaclyn C. Hill, Danielle C. Babashoff, The Steeg Law Firm, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

|,Defendant-Appellant, Impatiens, Inc., appeals the trial court’s dismissal of Impatiens’ reconventional demand and judgment in favor of Plaintiff-Appellee, Loving Mother, L.L.C., with regard to a petitory action. For the reasons that follow, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Plaintiff-Appellee, Loving Mother, L.L.C., is a successor entity to the original Plaintiffs, Grieshaber Family Properties, L.L.C., and RJ and AG Schoen Family Properties, L.L.C., and Josephine Wagner Properties, L.L.C. Loving Mother owns two contiguous properties which bear the municipal addresses of 4330 and 4338 St. Charles Avenue, New Orleans, Louisiana. The property located at 4338 St. Charles Avenue, hereinafter referenced as the “Copeland’s Property,” is located at the corner of St. Charles and Napoleon Avenues, and measures 55 feet front on St. Charles Avenue by 120 feet front on Napoleon Avenue. The property located at 4330 St. Charles Avenue, hereinafter referenced as the “Fat Harry’s Property”, is contiguous with 4338 St. Charles Avenue, and is 55' from the corner |2of St. Charles Avenue and Napoleon Avenue, and 60' front on St. Charles Avenue by a depth of 120'.

Loving Mother filed a petitory action on March 29, 2007, asserting ownership of a strip of land located along the rear and side of the Fat Harry’s Property and Copeland’s Property. Loving Mother also asserted that a Servitude of View originally granted on July 14, 1931 had been abandoned, and that the fence’s location deprived Loving Mother of its use and enjoyment of the property.

The Servitude of View was originally established between William Bisso, who then owned the Fat Harry’s Property and Copeland’s Property, and Louis Alba, who then owned 1507 Napoleon Avenue. Defendant-Appellant, Impatiens Inc., now owns 1507 Napoleon Avenue. The servitude consisted of a 20' strip of land along the Napoleon Avenue side of the Copeland’s Property and a 24' strip of land along the rear side of the Fat Harry’s Property and Copeland’s Property. The servitude was amended on July 22, 1940; the amendment provided that the size of the area affected by the servitude would be reduced to 12' deep along the Napoleon Avenue side of the Copeland’s Property and would be reduced to the rear 20' of the Fat Harry’s and Copeland’s Property. It also prohibited the construction of any structures in any area affected by the servitude.

Louis Alba subsequently sold 1507 Napoleon Avenue to his own company, Alba Company; Alba Company then sold the property to Victor Schiro. Jozsef Toth, the owner of Impatiens, purchased the property from Victor Schiro in 1979. Impatiens purchased the property on March 4,1993, from Jozsef Toth.

| Jmpatiens, Inc., answered the petition and filed a reconventional demand, asserting that it and its predecessors have been in possession of the strip of land and had acquired ownership of same through thirty years of acquisitive prescription. Impatiens also denied abandonment of the Servitude of View.

The parties stipulated that, at some point more than thirty years prior to March 29, 2007, a fence was placed at the l-ear of the Fat Harry’s Property and Copeland’s Property. The parties further stipulated that the fence was in the same location from at least September 20, 1979 until 1983, when the section of the fence that was closest to Napoleon Avenue was moved, as evidenced by a March 4, 1993 survey. At trial, the parties stipulated that Loving Mother has paid all of the real estate taxes assessed on the disputed property. The area of land in question is included in Loving Mother’s title and has never been within the boundaries of Impatiens’ title.

Superior Seafood, L.L.C., the tenant of Copeland’s property, intervened as a cross-appellant to protect its interest in the property.

A bench trial was held on October 7, 2009. At trial, Jozsef Toth, the owner of Impatiens, and Richard Schoen, the manager of Loving Mother, testified, and testimony from Robert Schoen was introduced by deposition. Three surveys and numerous other exhibits were introduced into evidence. After taking the matter under advisement, on March 30, 2010, the trial court ruled in favor of Loving LMother as the owner of the subject property, and rejected Impatiens’ acquisitive prescription claim. The trial court also found, however, that the 20' strip of land along the rear of Loving Mother’s property was still burdened with the Servitude of View in favor of Impatiens’ property. With regard to the Servitude of View burdening the 12' parcel along the Napoleon Avenue side of the property, the trial court determined that it had been abandoned.

In detailed written Reasons for Judgment, the trial court recognized that Mr. Toth purchased 1507 Napoleon Avenue from Victor Schiro in 1979, and that Impatiens was therefore unable to establish thirty years acquisitive prescription without tacking its possession to that of Mr. Toth’s ancestor in title, Mr. Schiro. Because the disputed strip of land was included in Loving Mother’s title, pursuant to La. Civ.Code art. 3486, in order for Impatiens to acquire the fenced strip of land by acquisitive prescription, Impatiens must have demonstrated corporeal possession for thirty years with the intent to possess as owner.

Although Mr. Toth argued that the fence, which had no gates or access areas, was evidence of both Mr. Toth’s and Mr. Schiro’s intent to possess as owner, the trial court concluded that neither Impatiens’ nor Mr. Schiro’s intent to possess as owner could be presumed by the existence of a fence. The trial court further found that, consistent with the originally stated purpose of the servitude, the fence was an accommodation to Impatiens’ ancestor in title, Louis R. Alba, for Mr. Alba’s agreement not to oppose William A. Bisso’s proposal to convert the zoning Rof Mr. Bisso’s property from residential to commercial. The trial court also acknowledged that because the surveys did not clearly set out the fence location, Impatiens had also failed to meet the burden of proving the “limits of its possession” through testimony at trial.

Turning to the issue of the servitude of view, the trial court determined that the servitude of view created a non-apparent negative servitude in favor of Impatiens pursuant to La. Civ.Code arts. 706 and 707. Citing La. Civ.Code arts. 753 and 754, the trial court found that the servitude affected two portions of ground, and that although the servitude had prescribed on the portion of ground | ^measuring 120' front on Napoleon Avenue, it had not prescribed as to the rear of the property.

Impatiens appealed the trial court’s judgment. Loving Mother answered the appeal, joining with Superior Grill, L.L.C., in its cross-appeal, assigning as error and seeking reversal of the trial court’s determination that the servitude of view continued to exist on the twenty-foot portion of ground between the properties, asserting that the entire servitude of "view had been abandoned by ten years of non-use.

STANDARD OF REVIEW

A trial court’s determination with regard to whether a party has possessed property sufficient to establish acquisitive prescription is subject to the manifest error standard of review. St. John Baptist Church of Phoenix v. Thomas, 08-0687, p. 7 (La.App. 4 Cir. 12/3/08), 1 So.3d 618, 623. Likewise, a lower court’s findings with regard to whether a servitude has been abandoned are governed by the manifest error-clearly wrong standard of review. See Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. P’ship, 01-2812 (La.App. 1 Cir. 12/30/02), 839 So.2d 82, 89, writ denied, 03-0306 (La.4/4/03), 840 So.2d 1219 When the trial court’s factual findings are based on the credibility of witnesses, the court’s decision to credit the testimony of certain witnesses must be afforded deference by the reviewing court. Id. (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)).

DISCUSSION

Assignment of Error # 1

In the first assignment of error, Impatiens asserts that the trial court failed to find that a presumption existed pursuant to La. Civ.Code art. 3427, which provides | Tthat “[o]ne is presumed to intend to possess as owner unless he began to possess in the name of and for another.”

Ownership of immovable property may be acquired through a ten- or thirty-year prescriptive period. La. Civ. Code arts. 3473 et seq. A possessor of immovable property without just title is considered a bad-faith possessor and is therefore subject to the thirty-year prescriptive period. La. Civ.Code art. 3486. To establish acquisitive prescription, the bad-faith possessor must demonstrate continuous, uninterrupted, peaceable, public and unequivocal corporeal possession for thirty years. La. Civ.Code art. 3476 (emphasis added). Additionally, it is well-settled in Louisiana that the party claiming title to a tract of land by acquisitive prescription bears the burden of proof. McKoin v. Harper, 36,533, p. 3 (La.App. 2 Cir.1/31/03), 836 So.2d 1260, 1263 (citing Bowman v. Blankenship, 34,558, p. 4 (La.App. 2 Cir.4/4/01), 785 So.2d 134, 138, unit denied, 01-1354 (La.6/22/01), 794 So.2d 794).

In this case, Impatiens’ argument lacks merit simply because neither Mr. Toth nor Impatiens established at trial uninterrupted possession for the necessary time period. We agree with the trial court’s conclusion that, even if Impatiens could establish continuous, uninterrupted, peaceable, pub-lie and unequivocal corporeal possession of the area of land in dispute, Impatiens did not demonstrate such possession for thirty years; Mr. Toth purchased the property in 1979, and this action was filed in March of 2007, leaving a void of two years for acquisitive prescription. Thus, assuming arguendo that Impatiens had actually established ^possession from 1979 through 2007, Impatiens did not set forth any evidence that Mr. Schiro intended to possess the area of land in dispute. See La. Civ. Code art. 3442.

Furthermore, Impatiens did not demonstrate at trial continuous, uninterrupted, peaceable, public and unequivocal corporeal possession for any period of time. Richard Schoen, the manager and custodian of the records for Loving Mother, L.L.C., testified that his ancestors in title maintained and reconstructed a portion of the fence within the last thirty years, and actually moved a portion of the fence towards the 1507 Napoleon property. Additionally, |nRichard Schoen testified that he and other family members used the strip of land over the last thirty years to trim the trees to prevent fire hazards, and also used the area in question to socialize with friends during Mardi Gras and other times during the late 1970s and early 1980s. He further testified that Loving Mother did not abandon the subject property.

Additionally, as the trial court recognized, the existence of the servitude (which was explicitly included in the Act of Sale from Mr. Schiro to Mr. Toth) deemed Mr. Schiro, Mr. Toth, and Impatiens precarious possessors pursuant to La. hnCiv.Code arts. 3437 and 3438. Accordingly, acquisitive prescription could not run. La. Civ.Code art. 3477; see also Delacroix Corp. v. Perez, 98-2447, p. 5 (La.App. 4 Cir.11/8/00), 794 So.2d 862, 866, writ denied, 00-3245 (La.1/26/01), 782 So.2d 635. “Acquisitive prescription does not run in favor of a precarious possessor or his universal successor, who is presumed to possess for another although he may intend to possess for himself.” Id.

Furthermore, there is no evidence that the possession changed from precarious or that the nature of the possession changed by acts sufficient to put Loving Mother on notice of such a change. See Delacroix, p. 9, 794 So.2d at 868; La. Civ.Code arts. 3439 and 3478. Richard Schoen testified at trial that at no time was anyone told to leave the property, nor did he or any other family member receive notice from Mr. Toth or Impatiens that Mr. Toth intended to take possession of the strip of land.

Servitude of View — Cross Appeal

With regard to the trial court’s findings regarding the servitude of view, although the language in the 1931 document purports to make the servitude irrevocable, the servitude can nevertheless be abandoned from ten years of nonjuse.11 La. Civ.Code art. 753; see also Roba, Inc. v. Courtney, 09-0509, p. 8 (LaApp. 1 Cir.8/10/10), 47 So.3d 509, 515 (“If a predial servitude is not used for ten years, it is extinguished”); Vincent v. Meaux, 325 So.2d 346, 348 (La.App. 3 Cir.1975) (finding that “[i]n order to have kept the servitude viable, it was necessary for the plaintiff to have used it at least once every ten years since its creation”).

We find that the trial court erred in concluding that although the servitude had plainly prescribed on the portion of ground facing Napoleon Avenue, it had not prescribed as to the rear of the property. Although the servitude of view affects two portions of ground, only one servitude exists. Furthermore, with respect to affirmative servitudes, a partial use of the servitude constitutes the use of the whole for prescription purposes. Dupont v. Hebert, 06-2384, p. 7 (La.App. 1 Cir. 2/20/08), 984 So.2d 800, 806. Similarly, in this case, the partial adverse use of the negative servitude constituted adverse use of the servitude in its entirety. Accordingly, the trial court erred in finding that the servitude of view had prescribed only in part.

Assignment of Error # 2

In the second and final assignment of error, Impatiens asserts that the trial court erred by concluding that the surveys in evidence did not clearly set out the fence location.

Upon reviewing the surveys introduced into evidence, we do not find that the surveys definitively establish a clear location of the fence over a thirty year period. Furthermore, as discussed previously herein, Mr. Schiro did not testify, and his intent to possess as owner is not evidenced simply by the existence of the fence.

| ^CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed with respect to the petitory action in favor of Loving Mother, L.L.C., and dismissing Impatiens’ reconventional demand. The judgment is also affirmed with regard to the finding that the Servitude of View on the portion of ground measuring 120' front on Napoleon Avenue by 12' in the direction of General Pershing Street had prescribed by nonuse.

The portion of the trial court’s judgment in favor of Impatiens and finding that Loving Mother’s property is burdened with a Servitude of View on the portion of property measuring 20' from the rear line of the property is hereby reversed.

AFFIRMED IN PART; REVERSED IN PART

      . The record evidences that by act of cash sale dated December 14, 1944, Morris W. Newman sold Jennie Carra Grieshaber property bearing the municipal address of 4330-34 St. Charles Avenue. It is on this land that the building that is Fat Harry’s today was constructed. The title to the Fat Harry’s property was passed to Ms. Grieshaber's descendants upon her death, and Ms. Griesha-ber's children acquired the Copeland's property in 1981.

      . As noted in the joint stipulation at trial, the Fat Harry’s Property has been conveyed in an unbroken chain of title by the ancestor-in-title, Jennie Carra Grieshaber, to Loving Mother, L.L.C. Loving Mother acquired its interest in the property in an act of exchange dated November 19, 2007.

      . The record evidences that a sale of 1507 Napoleon Avenue property on October 1, 1979 from Mr. and Mrs. Victor H. Schiro to Jackson Homestead Association; a sale of the property dated October 1, 1979 by Jackson Homestead Association to Jozsef Toth; a dation en paiement dated March 4, 1993, by Jozsef Toth to Impatiens, Inc.; and a quitclaim executed by Jozsef Toth in favor of Impatiens, Inc., on March 31, 1993.

      . Prior to Loving Mother’s procurement of the Copeland’s property, a fence was placed on the rear of the property which joined with the fence behind the Fat Harry’s property.

      . In 1983, Mr. Toth made an agreement with Copeland’s restaurant to relocate a portion of the western end of the fence. The fence was moved a few feet toward the apartment building, allowing space for restaurant equipment. This relocation of the fence is reflected in the March 4, 1993 survey.

      . Superior Seafood asserts in its brief that it appeared as Intervenor on the basis of its five-year lease of land and improvements at 4330 and 4338 St. Charles Avenue, and acknowledges that its interests are aligned with those of Loving Mother.

      . Robert Schoen is Agatha Grieshaber's husband. Agatha Grieshaber is the sister of Judge Dom Grieshaber and Josephine Wagner.

      . See La. Civ.Code art. 3442 ("The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.”).

      . "Ownership and other real rights in immov-ables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.” La. Civ.Code art. 3486.

      . Mr. Schiro did not testify.

      . The Servitude of View was granted by Mr. Bisso in the 1931 document as follows:
      Appearer further declared that for and in consideration of and upon the terms and conditions hereinafter set forth, he does by these presents irrevo[c]ably grant and establish a servitude of view in favor of the property belonging to LOUIS R. ALBA, which property adjoins appearer’s above said property and which measures fifty feet front on Napoleon Avenue by One hundred and twenty feet in depth, on which stands the Jefferson Apartments, known by the Municipal No. 1507 Napoleon Avenue, which servitude the said Louis R. Alba does by these presents accept.
      The servitude of view herein granted and established by appearer being on that portion of his ground measuring one hundred and twenty feet front on Napoleon Avenue by a width or depth of twenty feet in the direction of General Pershing street; and a portion forming the rear of appearer's said ground measuring twenty-four feet from the rear line of appearer’s said ground and extending in the direction of St. Charles Avenue, being twenty percent of the depth of appearer's said property.
      The 1931 document further provided that "[f]or the purpose of maintaining said servitude of view, the appearer herein binds and obligates himself, his heirs and assigns not to construct any building or obstruction of any character whatsoever on the said set back of twenty feet on Napoleon Avenue and the twenty-four feet on the rear of said property as hereinabove described.” The servitude was granted and established for the consideration of $300.00, "and in further consideration and compromise of the said Louis R. [Ajlba abandoning any of his rights whatsoever which he has or may have to oppose the proposed change in the zoning of the ap-pearer’s property from residential to ‘G’ commercial ... which change however is not in anywise to effect the servitude herein established.”

      . La. Civ.Code art. 706 provides, in pertinent part:
      Negative servitudes are those that impose on the owner of the servient estate the duty to abstain from doing something on his estate. Such are the servitudes of prohibition of building and of the use of an estate as a commercial or industrial establishment.

      . La. Civ.Code art. 707 provides, in pertinent part:
      Nonapparent servitudes are those that have no exterior sign of their existence; such as the prohibition of building on an estate or of building above a particular height.

      . “A predial servitude is extinguished by nonuse for ten years.” La. Civ.Code art. 753

      . La. Civ.Code art. 754 provides as follows:
      Prescription of nonuse begins to run for affirmative servitudes from the date of their last use, and for negative servitudes from the date of the occurrence of an event contrary to the servitude. An event contrary to the servitude is such as the destruction of works necessary for its exercise or the construction of works that prevent its exercise.

      . "Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing." La. Civ.Code art. 3425.

      . The time period for acquisitive prescription was interrupted by the petitory action filed by Loving Mother. See La. Civ.Code art. 3462 ("[prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue”).

      . Richard Schoen testified at trial that his father preceded him as the manager of the properties.

      . Richard Schoen testified that he first became involved in the property in the 1970s, and testified with regard to his personal knowledge of the purpose and maintenance of the fence in the late 1970s:
      Q. Well, let's fast-forward to the '70s, when you were a major; you were over the age of 18. What did you do around the property in the 70s?
      A. It was, it was an Uptown gathering spot for all of our friends; went through — saw a number of different managers go through the building, the business; was involved in the major renovations of the building when we put the archway doors on the front, redid the bar. I've been very involved with this building since I was a teenager, if that answers your question.
      Q. Let’s talk about the rear of the building and specifically the alleyway and fence. Did you have occasion to work on or in this area?
      ⅜ ⅝ * ⅜
      A. During the renovations of the building in the late '70s, the back exit door where the kitchen was — ‘cause we were renovating the kitchen at that time, Your Honor. I don't know if you remember that. But we poured a slab out the back. A lot of the boards were missing off the fence back there. The fence was always there to have some place to put the trash until we could take it to Napoleon.
      Q. We're talking about the Fat Harry’s rear portion?

        A. Yes, sir.
      ⅜ ⅛ ⅜ ⅝
      A. Of my own personal knowledge, that fence was there to have some place to throw the trash where it wasn’t in plain view of the adjoining property. We had to put it somewhere until you could haul it out to the curb for collection once or twice a week.
      Q. You said you replaced fence boards. Describe the fence back in the late '70s behind Fat Harry's and Copeland’s, what we — soon became known as "Copeland’s”?
      A. The fence was always very rickety, was built between the trees. The trees were almost the poles. A lot of the fence sections were down. What we decided to do when we renovated the place — We bought these very heavy rubber mats, if I could elaborate. You know, they go on the floor behind the bar, Judge. And they would take these mats out, and they’d have to wash them out 'cause all the alcohol and the beer spillage on them. So we had to reinforce the fence so we could hang those heavy mats on there and hose them off. So I know that we rebuilt that section of the fence at that time because it was boards missing on it and we had to restructure the braces on it.
      Q. And this is the late '70s?
      A. This is the very late '70s.

      Q. Did the guy next door, whoever he was, Vic Schiro, whoever owned the apartment building, come out and object to the fence going up?
      A. No.

      Q. Okay. Behind Fat Harry's, you actually drilled new holes, right, for the fence posts?
      A. The four-by-fours.
      Q. Right. Okay. So you sunk four-by-fours in. Did you pour concrete?
      A. Yeah, of course. You've got to hold the pole.
      Q. And you set new fence posts?
      A. Right.
      Q. That was just the part behind Fat Harry's?
      A. That’s correct.
      Q. Okay. That’s an entirely new fence?
      A. Okay.
      Q. Moved closer to the building, to the apartment building?
      A. Yes, further away from our building, yes.

      . Richard Schoen testified with regard to the family’s maintenance of the trees of the strip of land during the 1980s and 1990s:
      Q. What did you do on that strip of land in the late '70s?
      A. For lack of a better word, we used to party on it. I mean, we had access to it.
      Q. What about, shall we say, after you may have matured? What did you do in the '80s and '90s, if anything at all, on that strip of land?

      A. Occasionally. We were trying to prevent a fire hazard. And the fire hazard was they had several trees that were in the back of the building that Carl had the exhaust— Carl was the manager of Fat Harry's — the exhaust vents from his kitchen area that ran up the back side of the building. And the tree limbs would come over on those exhaust fans and hoods. And we were always afraid that those were gonna catch fire because of the way it was. And we'd have to go back over there and trim the trees, whether we did it from the roof or we did it from the fence on the other side. But we had to cut those trees back to keep them away from the heated exhaust vents, if that's okay to say that.

      . Richard Schoen testified that family members and friends would use the area of land in question during the late 1970s and early 1980s:
      Q. What other use were you personally involved in?
      A. I used to go back there sometimes around Mardi Gras times with friends. It wasn’t that unusual on a — I don’t know. It was late '70s, early '80s. Just to get out of Fat Harry’s for a while, we used to go back there on the patio furniture, kind of a disco thing where you'd be dancing all night long. You just wanted to get away, you know. And we would take our drinks back there, and that was normally a Friday, Saturday night kind of a thing.

      . Richard Schoen testified that the rear of the properties was considered to be a "buffer zone” that was not ever abandoned by Loving Mother:
      So let me digress. We didn't have a problem with the rear property the way it was. It was designed as a buffer zone between the properties. We tried to protect the buffer zone by putting up a fence. We put the garbage out in the back; that’s what it was designed — been doing that for 50 years. We didn't have a problem with the neighbors using the property; we used the property. We maintained the property; they maintained the property. This has never been in question. We never, ever decided to abandon this property. It was always ours.

      . "The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious possession.” La. Civ.Code art. 3437.

      . "A precarious possessor, such as a lessee or a depositary, is presumed to possess for another although he may intend to possess for himself.” La. Civ.Code art. 3438.

      . "Acquisitive prescription does not run in favor of a precarious possessor or his universal successor.” La. Civ.Code art. 3477.

      . La. Civ.Code art. 3439 provides that "[a]ny other precarious possessor, or his universal successor, commences to possess for himself when he gives actual notice of this intent to the person on whose behalf he is possessing.”

      . La. Civ.Code art. 3478 provides as follows:
      A co-owner, or his universal successor, may commence to prescribe when he demonstrates by overt and unambiguous acts sufficient to give notice to his co-owner that he intends to possess the property for himself. The acquisition and recordation of a title from a person other than a co-owner thus may mark the commencement of prescription.
      Any other precarious possessor, or his universal successor, may commence to prescribe when he gives actual notice to the person on whose behalf he is possessing that he intends to possess for himself.


author: GAIDRY, J. CARTER, C.J.,

text:
    Joseph F. TOOMY v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 2010 CA 1072.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.
    Rehearing Denied April 28, 2011.

      Dawn N. Guillot, Baton Rouge, LA, for Plaintiff/Appellee Joseph F. Toomy.
    Tina Vicari Grant, Baton Rouge, LA, for Defendant/Appellant Louisiana State Employees’ Retirement System.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

| j,The Louisiana State Employees’ Retirement System (LASERS) appeals a combined judgment granting the motion for summary judgment of the plaintiff employee, declaring him entitled to receive service credits as a member of LASERS from 1993 to 2000, and denying its cross-motion on the same issue. For the following reasons, we reverse the judgment of the trial court and render summary judgment in favor of LASERS, dismissing the plaintiff employee’s claim.

FACTS AND PROCEDURAL HISTORY

The relevant facts forming the basis of this action are not in dispute. The plaintiff, Joseph F. Toomy, was employed as a teacher at Delgado Community College from January 6, 1981, until his retirement on March 21, 2000. During that employment, he was a member of the Teachers’ Retirement System of Louisiana (TRSLA) and had 24.9 years of service. Mr. Toomy also served in the Louisiana legislature as a state representative from March 12, 1984, until January 13, 2008.

Prior to September 6, 1991, La. R.S. 42:701 prohibited employees who were concurrently employed by more than one public agency from dual membership in more than one public retirement system. Concurrent employees of two or more public agencies were thus required to make a choice as to the one public retirement system in which they would maintain their membership. Effective June 25, 1991, La. R.S. 42:701 was redesignated as La. R.S. 11:191, and it was amended effective September 6, 1991, to remove the previous prohibition and to require that eligible concurrent employees of more than one public agency be contributing | .¡members of the public retirement system applicable to each agency’s employees. Acts 1991, No. 74, § 3 and No. 413, § l.

Mr. Toomy executed a registration form to become a contributing member of LASERS on or about December 16, 1993, based upon his status as an elected official. He remained a contributing member of LASERS until he left the legislature on January 13, 2008.

On November 30, 2007, Mr. Toomy applied for retirement benefits from LASERS and was informed that he did not have enough years of service credit to do so. In doing so, LASERS took the position that Mr. Toomy was not allowed by law to earn service credits in LASERS during the period of November 1, 1993 to March 21, 2000, in which he was also a contributing member of TRSLA.

Mr. Toomy filed the present civil action on August 5, 2008, naming LASERS as defendant and seeking a declaratory judgment that he is entitled under the provisions of La. R.S. 11:191(A) to service credits in LASERS from November 1, 1993 to March 21, 2000. LASERS answered the petition, generally denying its allegations.

On July 17, 2009, Mr. Toomy filed a motion for summary judgment, supported by his affidavit verifying the facts asserted in his petition and those relating to his employment, retirement, and membership status in TRSLA and LASERS. On the same date, LASERS filed a cross-motion for summary judgment, confirming that there were no genuine issues of material fact and seeking summary judgment dismissing Mr. Toomy’s cause of action. The motions and supporting memoranda of both parties relied upon |4their respective interpretations of the language of La. R.S. 11:191(A) limiting an employee of multiple public agencies to “one year of service credit in any one year.”

The motions for summary judgment were fixed for hearing on September 21, 2009, and were submitted to the trial court for decision on the supporting memoranda, without oral argument. On the same date, the trial court issued its oral reasons for judgment, rendering summary judgment in favor of Mr. Toomy and denying LASERS’s motion for summary judgment.

On April 15, 2010, the trial court signed its combined judgment on the motions, simply granting Mr. Toomy’s motion for summary judgment and denying that of LASERS. On May 4, 2010, LASERS moved to suspensively appeal the judgment. On June 24, 2010, this court ordered the parties to show cause why the appeal should not be dismissed, based on the lack of appropriate decretal language in the trial court’s judgment.

On October 12, 2010, the trial court signed an appropriate combined judgment on the motions, granting Mr. Toomy’s motion, declaring him entitled to receive service credits in LASERS for the years 1993 to 2000, and denying LASERS’s motion.

In this appeal, LASERS seeks the reversal of the summary judgment in favor of Mr. Toomy, reversal of the judgment denying its cross-motion, and rendition of summary judgment in its favor, dismissing Mr. Toomy’s cause of action.

| .STANDARD OF REVIEW

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court’s determination of the issues. Peak Performance Physical Therapy & Fitness, LLC v. Hibernia Corp., 072206, p. 5 (La.App. 1st Cir.6/6/08), 992 So.2d 527, 530, writ denied, 081478 (La.10/3/08), 992 So.2d 1018. The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Similarly, in a ease involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the trial court’s legal conclusions are not entitled to deference. Kevin Associates, L.L.C. v. Crawford, 03-0211, p. 15 (La.1/30/04), 865 So.2d 34, 43.

DISCUSSION

Principles of Statutory Interpretation

Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the statute. State v. Campbell, 03-3035, p. 7 (La.7/6/04), 877 So.2d 112, 117. It is presumed that the legislature enacts each statute with deliberation and with full knowledge of all existing laws on the same subject. Id., 03-3035 at p. 8, 877 So.2d at 117. Thus, legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting lfithose statutes. It is further presumed that the legislature intends to achieve a consistent body of law. Id.

The starting point in the interpretation of any statute is the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. In re Clegg, 10-0323, pp. 20-21 (La.7/6/10), 41 So.3d 1141, 1154. The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. Id., 100323 at p. 21, 41 So.3d at 1154. It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter, the statute specifically directed to the matter at issue must prevail as an exception to the more general statute. Fontenot v. Reddell Vidrine Water Dist., 02-0439, 02-0442, 02-0478, p. 20 (La.1/14/03), 836 So.2d 14, 28.

Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. Pumphrey v. City of New Orleans, 05-979, p. 11 (La.4/4/06), 925 So.2d 1202, 1210. It is presumed that every word, sentence, or provision in the law was intended to serve some useful purpose, that some effect is to be given each such provision, and that no unnecessary words or provisions were used. Lasyone v. Phares, 01-1785, p. 4 (La.App. 1st Cir.5/22/02), 818 So.2d 1068, 1071, writ denied, 02-1711 (La.10/14/02), 827 So.2d 423.

In interpreting the Revised Statutes, “[w]ords and phrases shall be read with their context and shall be construed according to the common and | approved usage of the language.” La. R.S. 1:3. When the wording of a section of the Revised Statutes is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. La. R.S. 1:4.

Finally, with regard to the particular type of statute at issue here, Louisiana courts have consistently held that legislation establishing pension systems is remedial in nature, and therefore must be liberally construed in favor of the intended beneficiaries. Swift v. State, 342 So.2d 191, 196 (La.1977); Maillet v. Bd. of Trustees, Teacher’s Ret. Sys. of La., 248 La. 964, 978, 183 So.2d 321, 326 (La.1966); and Harrison v. Trustees of La. State Employees’ Ret. Sys., 95-0048, p. 7 (La.App. 1st Cir.10/6/95), 671 So.2d 385, 390. Accordingly, any ambiguity in such a statute must be resolved in favor of the persons intended to be benefited thereby. Groves v. Bd. of Trustees of Teachers’ Ret. Sys. of La., 324 So.2d 587, 594 (La.App. 1st Cir.1975), writs denied, 326 So.2d 378, 380 (La.1976).

The Law Applicable to the Plaintiff’s Claim

Louisiana Revised Statutes 11:1, et seq., comprise the Louisiana Public Retirement Law. Its stated purpose is “to consolidate public retirement law in order to effectively comply with the [constitutional] mandate ... to maintain public retirement systems on a sound actuarial basis.” La. R.S. 11:2. Public retirement systems are broadly classified into “state retirement systems” and “statewide retirement systems.” La. R.S. 11:4. TRSLA and LASERS are classified as “state retirement systems.” La. R.S. 11:4(A).

Louisiana Revised Statutes 11:191(A) is contained in Subtitle I, “General and Preliminary Provisions,” Chapter 4, setting forth provisions affecting more than one public retirement system. It generally allows dual membership in public retirement systems, with certain exceptions. Roby v. Bd. of Trustees of Employees’ Ret. Sys. of City of New Orleans, 94-0671, p. 2 (La.App. 4th Cir.1/31/95), 650 So.2d 811, 812. It provides:

Any person who is employed in more than one public employment within this state, and who, by reason of such employment is eligible, as a condition of such employment, to be a member of the public retirement system or fund applicable to employees in each of such public employments, shall be a contributing member of each such retirement system or fund during the term of his employment. In no event shall such person be allowed to earn more than one year of service credit in any one year. Service credit earned in more than one retirement system or fund in any one year shall not be transferred or recognized reciprocally to attain more than one year of service credit in any one system in any one year.

(Emphasis added.)

LASERS contends that Mr. Too-my was prohibited by La. R.S. 11:191(A) from earning one year of service credit concurrently in both TRSLA and LASERS by the sentence, “In no event shall such person be allowed to earn more than one year of service credit in any one year.” Mr. Toomy, on the other hand, contends that the sentence must be read together with the following sentence, prohibiting “more than one year of service credit in any one system in any one year.” Mr. Toomy urges that the statute does not prohibit an employee from earning one year of service credit in each public retirement system of which he is a member in any one year, but rather only prohibits such an employee from earning more than one year of service credit per year in any one public retirement system.

Both Mr. Toomy and LASERS frame the central legal issue solely in terms of the interpretation of the language of La. R.S. 11:191(A). Mr. Toomy argues that he was required by the mandatory language of La. R.S. 11:191(A) to be a contributing member of LASERS and that it would be both “illogical” and “absurd” to prohibit him from receiving service credits in LASERS while at the same time receiving service credits from TRSLA. |3While we agree in dictum with Mr. Toomy’s position on the meaning of the particular sentence relied upon by LASERS, we disagree with its relevance and applicability to his particular situation.

Louisiana Revised Statutes 11:191(A) enunciates a general rule applicable to public employees concurrently employed by more than one public agency. See Roby, 94-0671 at p. 5, 650 So.2d at 813-14. In order for La. R.S. 11:191(A) to apply to Mr. Toomy as a legislator, he must have been “eligible, as a condition of such employment,” to be a member of LASERS. Title 11, Subtitle “State Systems,” Chapter 1 deals specifically with LASERS. Louisiana Revised Statutes 11:411, at the times relevant herein, contained the following pertinent provisions relating to Mr. Too-my’s eligibility:

The membership of this system [LASERS] shall be as follows:
(1) Each person who becomes an employee in the state service, except those specifically excluded or as to whom an option or election is provided in this Section, shall become a member of the system as a condition of employment.
(4) Membership shall be optional for elected officials ...

(Emphasis added.)

Because of his status as an elected official, Mr. Toomy’s membership in LASERS was optional, and he was not required “as a condition of [his] employment” as a legislator to be a contributing member of LASERS. Thus, La. R.S. 11:191(A) by its terms has no application to his situation. Rather, Mr. Toomy’s situation is governed by La. R.S. 11:413(1), which provides, in pertinent part:

The following classes of employees and officers shall not be or become members of this system [LASERS]:
lio(l) Elected or appointed officials or employees of this state who are contributing members of any other state retirement system, ... unless by transfer in accordance with the provisions of the optional reciprocal transfer agreement provided for by this Chapter....

(Emphasis added.)

The specific rule of La. R.S. 11:413(1) must be held to prevail over the more general rule of La. R.S. 11:191(A). See Roby, 94-0671 at p. 5, 650 So.2d at 813-14. According to the mandatory and unambiguous language of La. R.S. 11:413(1), Mr. Toomy was ineligible to join LASERS due to his status as a contributing member of TRSLA, another “state retirement system,” unless he transferred that membership to LASERS. According to his petition and affidavit, he retained his membership in TRSLA from the time he applied for membership in LASERS through his retirement as a teacher in 2000. Thus, it is undisputed that no transfer of service credits from TRSLA to LASERS occurred. He was therefore ineligible to become a member of LASERS in 1993, and he was not entitled to earn service credits in LASERS during the period at issue. This result is mandated not only by the mandatory prohibitive language of La. R.S. 11:413(1), but by the terms of La. R.S. 11:191(A), read in light of the former statute and La. R.S. 11:411.

Based on the foregoing, Mr. Toomy was not entitled to declaratory judgment in his favor as a matter of law, and the judgment of the trial court was legally incorrect. In reversing the trial court’s summary judgment in his favor and rendering summary judgment in favor of LASERS, we emphasize that our decision is limited to the particular cause of action and legal issue presented by Mr. Toomy’s petition for declaratory judgment, and our decision is without prejudice to other legal recourse available to him regarding his contributions made to LASERS.

InDECREE

The summary judgment of the trial court in favor of the plaintiff-appellee, Joseph Toomy, declaring him entitled to receive service credits in the Louisiana State Employees’ Retirement System for the period of November 1, 1993, to March 21, 2000, is reversed. The judgment of the trial court denying the motion for summary judgment of the defendant-appellant, the Louisiana State Employees’ Retirement System, is reversed, and summary judgment is rendered in favor of the defendant-appellant, dismissing the plaintiff-appellee’s cause of action for declaratory judgment with prejudice. All costs of this appeal are assessed to the plaintiff-appel-lee.

REVERSED AND RENDERED.

CARTER, C.J., concurs with reason.

CARTER, C.J.,

concurring.

hi agree that the result reached by the majority is legally correct and required by La. R.S. 11:1, et seq. However, it is unfair that Mr. Toomy paid into a retirement system (LASERS) for many years and, upon retirement, is informed that he is not entitled to retirement benefits for those years.

I respectfully submit that the legislature could remedy this unfairness by amending La. R.S. 11:413. A determination of ineligibility under La. R.S. 11:413 should not come years after a party has made contributions to a system.

      . The statute was later amended by Acts 1992, No. 250, § 1, effective July 1, 1992, and by Acts 1995, No. 753, § 1, effective August 15, 1995. Those later amendments did not change the relevant substance of the 1991 amendment as it pertains to this action.

      . Elected officials are eligible for membership in LASERS, but their membership is optional. La. R.S. 11:411(4).

      . When an unrestricted appeal is taken of a final judgment determinative of the merits, the appellant is generally entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. See Judson v. Davis, 04-1699, p. 8 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1112, writ denied, 05-1998 (La.2/10/06), 924 So.2d 167.


author: KUHN, J.

text:
    VICKSBURG HEALTHCARE, LLC d/b/a River Region Health System v. STATE of Louisiana through the DEPARTMENT OF HEALTH AND HOSPITALS, and Alan Levine in his capacity as Secretary of the Louisiana Department of Health and Hospitals.
    No. 2010 CA 1248.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.

      Claude F. Reynaud, Jr., Gregory D. Frost, Emily Black Grey, Traci S. Thompson, Baton Rouge, LA, for Plaintiff-Appel-lee Vicksburg Healthcare, LLC d/b/a River Region Health System.
    Stephen R. Russo, Charles E. Daspit, Michael J. Coleman, Baton Rouge, LA, for Defendants-Appellants, Louisiana Department of Health and Hospitals and Alan Levine.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   KUHN, J.

1 gDefendants-appellants, State of Louisiana through the Department of Health and Hospitals and its secretary Alan Levine (DHH or the department), appeal the trial court’s judgment, granting summary judgment and declaring a reimbursement methodology promulgated by DHH (which appears as rules in various publications of the Louisiana Register) unconstitutional, as well as finding that all DHH’s actions taken pursuant to that reimbursement methodology discriminated in the Medicaid reimbursement payments made to plaintiff-appellee, Vicksburg Healthcare, LLC d/b/a River Region Healthcare System (River Region). Finding the record supports a violation of the Commerce Clause of the U.S. Constitution and, as such, a violation of La. R.S. 40:1300.144(A)(S)(b), we amend the judgment and, as amended, affirm.

BACKGROUND

River Region, who operates a hospital in Vicksburg, Mississippi, and is organized under the laws of the State of Mississippi, filed a petition seeking declaratory relief and damages against DHH, averring that the reimbursement rate DHH was paying to River Region for inpatient healthcare services it administered to Louisiana Medicaid patients was significantly less than the amount DHH reimburses to like instate providers. River Region filed a motion for partial summary judgment on the issue of the legality of the reimbursement methodology. After a hearing, the trial court granted River Region’s motion, declaring the I..¡reimbursement methodology unconstitutional and finding that DHH’s actions applying the methodology discriminated against River Region. DHH appealed the trial court’s judgment, signed in conformity with its ruling.

SUMMARY JUDGMENT

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 932512, p. 26 (La.7/5/94), 639 So.2d 730, 750. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

In light of the undisputed facts, on appeal, the questions presented for our determination are purely legal ones, rather than factual ones, and therefore particularly appropriate for determination by summary judgment “as a matter of law.” See La. C.C.P. art. 966(C)(1); Hays v. Louisiana State Bd. of Elementary and Secondary Educ., 2009-1386, p. 4 (La.App. 1st Cir.6/11/10), 39 So.3d 818, 820, writ denied, 2010-1640 (La.10/8/10), 46 So.3d 1272.

DISCUSSION

Medicaid is a joint federal-state program, which furnishes medical assistance on behalf of families with dependent children and other qualifying | individuals, see 42 U.S.C.A. § 1396, in which Louisiana participates. According to La. R.S. 40:1300.144(A)(3)(a), which is part of the Louisiana Rural Hospital Preservation Act (RHPA):

With respect to reimbursement for services furnished in another state, the department shall insure that reimbursement for such services shall be the lesser of the payment for such services by the state wherein such hospital is located or the department’s payment made to like in-state providers. The department shall provide coverage for such services to the same extent that it would pay for semces furnished within the boundaries of this state, only if any of the following conditions is met:
(i) Medical services are needed because of a medical emergency.
(ii) Medical services are needed and the recipient’s health would be endangered if he were required to travel to his state or residence.
(iii) The state determines, on the basis of medical advice, that the needed medical services are necessary supplementary resources, and more readily available in the other state.
(iv) It is general practice for recipients in a particular locality to use medical resources in another state. (Emphasis added.)

Cf 42 C.F.R. § 431.52(b).

By La. Acts 1999, No. 1068, § 1, the Louisiana legislature, among other things, amended and reenacted La. R.S. 40:1300.144(A)(3)(b). These relevant provisions state:

The department shall adopt rules and regulations in accordance with the Administrative Procedure Act that provide the following ...
In the event federal requirements for the state plan for medical assistance permit the department to impose further restrictions on payment for and coverage of medical services to Louisiana Medicaid patients rendered by out-of-state providers, the department shall promulgate regulations restricting payment for and coverage of such | ¿services to the fullest extent pemiitted by law. Such restrictions shall include lowering the rate of reimbursement provided for services rendered to out-of-state hospitals to the payment for such semces by the state wherein such hospital is located, the department’s payment made to like in-state providers, or the average rate paid to Louisiana rural hospitals located in the state, whichever is the least. (Emphasis added.)

In an attempt to conform to the directive stated in La. R.S. 40:1300.144(A)(3)(b), DHH adopted a rule (the DHH Rule), which created a classification of out-of-state, “border” hospitals. As it appears in its final enactment, the DHH Rule states:

Out-of-state hospitals that provided at least 500 inpatient hospital days in State Fiscal Year 1999 and are located in border cities (cities located within a 50 mile trade area of the Louisiana state border) will continue to be reimbursed at the lesser of each hospital’s actual cost per day (based on the 1998 filed cost report) or the Medicaid per diem rate of the state wherein the services are provided. This reimbursement methodology is applicable for all Louisiana Medicaid recipients who receive inpatient services in an out-of-state hospital located in a border city, including those recipients up to the age of 21.

The following facts are undisputed. River Region was enrolled in the Louisiana Medicaid program from March 8, 2000 until November 30, 2008, when it withdrew its participation in the voluntary administration of healthcare services to Louisiana Medicaid patients. From March 8, 2000 through September 1, 2008, River Region provided a total of 13,284 inpatient hospital healthcare services to | (Louisiana Medicaid patients. Under the DHH Rule, border hospitals are reimbursed differently than Louisiana hospitals that provide inpatient hospital services to Louisiana Medicaid patients. River Region is classified as a border hospital. Under its tiered system, DHH’s classification of “Peer Group 5” refers to a category of hospitals, which have more than 138 beds and are neither rural hospitals nor teaching hospitals. River Region is an out-of-state hospital where Louisiana Medicaid patients customarily obtain medical services. It has more than 138 beds and is neither a rural hospital nor a teaching hospital. At all times since March 8, 2000, DHH has reimbursed River Region a lower per diem rate for inpatient hospital healthcare services it administered to Louisiana Medicaid Lpatients than the amount in-state Peer Group 5 hospitals have been reimbursed for their administration of inpatient hospital healthcare services.

River Region asserts, among other things, that DHH’s reimbursement methodology for inpatient hospital healthcare services administered to Louisiana Medicaid patients by border hospitals violates the Commerce Clause of the U.S. Constitution. Specifically, it asserts that the DHH Rule directly discriminates against and places excessive burdens on interstate commerce without serving any valid state interest other than protectionism toward its in-state hospitals, particularly rural hospitals. As such, River Region maintains, the DHH rule is not in conformity with La. R.S. 40:1300.144(A)(8)(b) in that it does not restrict payment for and coverage of such services to the fullest extent permitted by law.

The Commerce Clause provides that “Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States....” U.S. Const, art. 1, § 8. On its face, the Commerce Clause simply empowers Congress to regulate interstate commerce. This clause, however, historically has been construed as not only empowering Congress, but also limiting the states. Crescent Towing & Salvage Co., Inc. v. Ormet Corp., 1997-1531, p. 5 (La.9/9/98) 720 So.2d 628, 631, cert. denied, 525 U.S. 1142, 119 S.Ct. 1035, 143 L.Ed.2d 43 (1999) (citing Cooley v. Bd. of Wardens, 53 U.S. 299, 12 How. 299, 13 L.Ed. 996 (1852); see generally Laurence H. Tribe, American Constitutional Law §§ 6.3-6.4 (2d Red.1988)). The latter limiting aspect is referred to as the dormant Commerce Clause. Crescent Towing & Salvage Co., Inc., 1997-1531 at p. 5, 720 So.2d at 631.

Under the dormant Commerce Clause, there is a “virtually per se rule of invalidity” applicable to state regulations that directly discriminate against interstate commerce — i.e., favor in-state over out-of-state economic interests. Id., 1997-1531 at pp. 5-6, 720 So.2d at 631 (citing City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978), and noting a New Jersey law that barred local landfills from importing out-of-state wastes was struck down by the court). The dormant Commerce Clause also invalidates state regulations that indirectly discriminate if the regulation imposes an undue burden on interstate commerce. Crescent Towing & Salvage Co., Inc., 1997-1531 at p. 6, 720 So.2d at 631 (citing Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979)).

DHH initially urges that it is a market participant and, as such, the dormant Commerce Clause is inapplicable to its promulgation of the DHH Rule. In support of this contention, DHH suggests that when a state participating in the federal Medicaid program decides the amount it is willing to reimburse a healthcare provider for administering healthcare services to the state’s Medicaid patients, and then makes payments accordingly, that state is entering into the healthcare services market and participating in it as a purchaser.

Our Louisiana Supreme Court, examining the jurisprudence of the U.S. Supreme Court and other scholarly sources, stated in Crescent Towing & Salvage Co., Inc., 1997-1531 at pp. 6-7, 720 So.2d at 631-32:

^Historically, the Commerce Clause has been utilized principally in cases involving state taxes and regulatory measures “impeding free private trade in the national market place.” Reeves, Inc. v. Stake, 447 U.S. 429, 437, 100 S.Ct. 2271, 65 L.Ed.2d 244 (1980); Tribe, supra, [§§ ] 6-11, p. 431. The Court, in focusing on cases of Commerce Clause violations by state or municipal action in enacting statutes or ordinances, developed an exception when the action by the government is as a market participant, akin to a private party, as opposed to a market regulator. See Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 822 n. 4, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976)(Brennan, J., dissenting). Explaining this exception, the Court has stated:
There is no indication [in the Commerce Clause] of a constitutional plan to limit the ability of the States themselves to operate freely in the free market.... Restraint in this area is also counseled by considerations of state sovereignty ... and “the long recognized right of trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” Moreover, state proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants. Evenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the Commerce Clause.
Reeves, 447 U.S. at 436-38, 100 S.Ct. 2271, 65 L.Ed.2d 244. Stated otherwise, “[w]hen a state government regulates or taxes, it turns over nothing that belongs to it; rather, it compels private action through the exercise of raw governmental power. In contrast, when a state government buys or sells, it is controlling and distributing its own resources.” Dan T. Coenen, Untangling the Market-Participant Exemption to the Dormant Commerce Clause, 88 Mich. L.Rev. 395, 422 (1989).

DHH’s role in its participation in the federal Medicaid program can only be described as a hybrid one. See Smith v. Dep’t of Agric. of the State of Georgia, 630 F.2d 1081, 1083 (5th Cir.1980), cert. denied, 452 U.S. 910, 101 S.Ct. 3040, 69 L.Ed.2d 412 (1981). The market is a result of the decision of the State of Louisiana to participate in the federal Medicaid program. It is operated and Impartially financed by the State of Louisiana. But it is significant that DHH neither operates the small rural hospitals it seeks to protect and that provide the healthcare services to Louisiana Medicaid patients nor engages in the actual buying and selling of those healthcare services. The record clearly establishes that the Louisiana Medicaid patient is permitted to request healthcare at any facility that is a qualified Medicare provider of his choosing. Regardless of the facility the Louisiana Medicaid patient chooses, the patient pays nothing. Therefore, the calculation of the flat fee rate that River Region is reimbursed by DHH is not dependent on any contribution from the patient, the actual recipient of the healthcare services administered by River Region. In essence, the State of Louisiana has simply provided a suitable marketplace for the administration of healthcare services to Louisiana Medicare patients. Thus, the State of Louisiana cannot be deemed an actual market participant by its participation in the federal Medicaid program. Id. The State of Louisiana’s essential role is that of market regulator, and the DHH Rule as applied to River Region is subject to scrutiny under the Commerce Clause. Id.

Having determined that this case involves the kind of activity to which the Commerce Clause applies, it is necessary to determine whether the regulation at issue imposes an impermissible burden on interstate commerce. Id., 630 F.2d at 1084. Therefore, we must inquire (1) whether the challenged statute regulates evenhandedly with only “incidental” effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether | n alternative means could promote this local purpose as well without discriminating against interstate commerce. Id.; Crescent Towing & Salvage Co., Inc., 1997-1531 at p. 6, 720 So.2d at 631 (citing Hughes, 441 U.S. at 336, 99 S.Ct. 1727, 60 L.Ed.2d 250).

It is undisputed that River Region’s reimbursement rate for its administration of inpatient healthcare services to Louisiana Medicaid recipients is lower than the reimbursement rate than in-state hospitals DHH classifies as “Peer Group 5” hospitals. The evidence also established that aside from its administration of healthcare in the State of Mississippi, River Region possessed the same characteristics as a “Peer Group 5” hospital, i.e., it has more than 138 beds and is neither a rural hospital nor a teaching hospital. As such, River Region has established that the DHH reimbursement methodology as applied to River Region favors in-state over out-of-state economic interests. Thus, DHH must demonstrate the DHH Rule serves a legitimate purpose and that this purpose could not be served as well by available nondiscriminatory means.

DHH contends that the purpose of the DHH Rule setting forth the reimbursement methodology as directed by the legislature in its enactment of La. R.S. 40:1300.144(A)(3)(b) is that expressed in § 1300.142(B) of the RHPA:

The legislature hereby declares that, absent the enactment of the following provisions, the very existence of Louisiana’s small rural hospital [system] is imperiled. The legislature hereby declares that the purpose of this Part is to assure the continued viability of rural hospitals.

DHH maintains this purpose is legitimate because it optimizes the allocation of Louisiana’s limited Medicaid budget in such a way as to enhance the viability of the State’s small rural hospitals and, thus, enhance the health of the residents | i2they serve. As such, DHH asserts, Louisiana has a legitimate interest in ensuring the adequate funding of the network of healthcare providers that serves its residents. The deposition testimony seemingly supports this assertion. DHH representative, Jerry Phillips, who is the Director of the Bureau of Health Services Financing, indicated that reimbursing River Region at a higher rate did not mean that the reimbursement rate for rural hospitals would be less, but pointed out that the volume of business could be affected. DHH representative, Sandra Victor, also indicated that the promulgation of the DHH Rule, in accordance with the legislative directive of La. R.S. 40:1300.144(A)(3)(b), was to make sure that rural hospitals were not adversely impacted by border hospitals. Thus, DHH suggests that “only the most important hospitals — that is, the hospitals located in Louisiana, and particularly the endangered small rural hospitals which the RHPA seeks to help and protect — can be prioritized for funding purposes.” But the record is devoid of any measures taken by DHH to determine that “the most important” hospitals for all Louisiana Medicaid patients are those located in Louisiana and particularly the small rural hospitals. Likewise, DHH has offered nothing to show that its objective of preserving small rural hospitals cannot be accomplished by nondiseriminatory alternatives.

Despite the suggestion that the application of the DHH Rule to River Region’s reimbursement rate for inpatient healthcare services it administered to Louisiana Medicaid patients is for the purpose of assuring continued viability of rural hospitals, it is basically a protectionist measure. See City of Philadelphia, 437 U.S. at 623-24, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475. Indeed, there is obviously no reason to differentiate between in-state Peer Group 5 hospitals and River Region on any | i.gbasis other than the physical location of the hospitals. This is particularly egregious when the Louisiana Medicaid patient has chosen to avail himself of River Region’s services, which may be more extensive, or more convenient, than anything locally available to him. See Smith, 630 F.2d at 1084-85.

We note, however, that the trial court’s declaration was that the DHH Rule was unconstitutional, without any restrictions, i.e., ostensibly unconstitutional on its face. But this record is insufficient to establish that the other border hospitals subject to the reimbursement methodology set forth in the DHH Rule (i.e., Natchez Regional Medical Center and Natchez Community Hospital) are also discriminated against in DHH’s application to their respective reimbursement rates. Documentation shows that each of these hospitals receives significantly more than River Region. As such, the trial court’s judgment declaring the DHH Rule unconstitutional is too broad and is amended to limit the declaration of unconstitutionality to the application of the reimbursement methodology to River Region. And because the DHH rule is unconstitutional, it is not in conformity with La. R.S. 40:1300.144(A)(3)(b) in that it is not a regulation restricting payment for and coverage of such services “to the fullest extent permitted by law.”

luDECREE

For these reasons, the trial court’s judgment is amended to state:

IT IS ORDERED, ADJUDGED, AND DECREED that plaintiffs motion for partial summary judgment is GRANTED and declare that the Louisiana Department of Health and Hospitals’ reimbursement rules, which appear at 26 La. Reg. 217 (February 20, 2000); 26 La. Reg. 1234 (June 20, 2000); 26 La. Reg.1954-1955 (September 20, 2000); 26 La. Reg. 2795 (December 20, 2000); and the second paragraph of 29 La. Reg. 2801-2802 (December 20, 2003) are held to be unconstitutional as applied by Louisiana Department of Health and Hospitals to plaintiff, Vicksburg Healthcare, LLC d/b/a River Region Healthcare System and, as such, is in violation of La. R.S. 40:1300.144(A)(3)(b) insofar as applied by Louisiana Department of Health and Hospitals to plaintiff, Vicksburg Healthcare, LLC d/b/a River Region Healthcare System.

In all other respects, the judgment is affirmed. Appeal costs in the amount of $2,245.50 are assessed against defendants-appellants, State of Louisiana through the Department of Health and Hospitals and its secretary, Alan Levine.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Rules and regulations promulgated by an administrative body are not "a law or ordinance” under La. Const. Art. V, sec. 5(D) so as to warrant a direct appeal to the Louisiana Supreme Court upon a trial court's declaration that they are unconstitutional. See Holthus v. Louisiana State Racing Comm'n, 569 So.2d 547 (La.1990); and Benelli v. City of New Orleans, 474 So.2d 1293, 1294 (La.1985).

      . Although the issue of what amount of damages River Region may be entitled to receive remains unresolved, the trial court correctly certified the judgment as final. See La. C.C.P. art. 1915 B; Motorola, Inc. v. Associated Indent. Corp., 2002-1351, pp. 16-17 (La.App. 1st Cir.10/22/03), 867 So.2d 723, 732-33.

      . Louisiana’s Medicaid program is administered by the Bureau of Health Services Financing, an agency within DHH.

      . See La. R.S. 40:1300.141-1300.146.

      . Although River Region included in its challenge an assertion that La. R.S. 40:1300.144(A)(3) was unconstitutional, the trial court found to the contrary, and River Region did not appeal that determination. Thus, the sole scope of our review is directed at the constitutionality of the regulations enacted by DHH under its authority set forth in La. R.S. 40:1300.144(A)(3)(b).

      . See 26 La. Reg. 217 (February 20, 2000); 26 La. Reg. 1234 (June 20, 2000); 26 La. Reg. 1954-1955 (September 20, 2000); 26 La. Reg. 2795 (December 20, 2000); and the second paragraph of 29 La. Reg. 2801-2802 (December 20, 2003). According to DHH representative, Sandra Victor, in response to the 1999 amendment to La. R.S. 40:1300.144(A)(3)(b), an emergency rule was initially published in the Louisiana Register in February 2000, re-declared twice, and became final in the Louisiana Register in December 2000. In December 2003, another section was added to that same rule in addition to republication in the second paragraph of the DHH Rule creating border hospitals and the method of reimbursement applicable to them.

      . DHH representative, Debra Gough, testified that in determining the amounts of reimbursement in-state hospitals receive for administering healthcare inpatient hospital services to Louisiana Medicaid patients, DHH uses a cost report determination from the early 1990’s, either 1991 or 1993. But she explained that the legislature annually appropriates rate increases, noting that the last increase was in 2007 for a 4% upward adjustment. In applying the DHH Rule, Gough advised that out-of-state hospitals were receiving “the Medicaid per diem rate of the state wherein the services are provided,” i.e., Mississippi’s rate for River Region. But in applying the DHH Rule, DHH calculated the amount of Mississippi’s Medicaid per diem rate from either 1995 or 1996. The Louisiana legislature has made no appropriations for rate increases to the out-of-state providers.

      . According to 42 C.F.R. § 431.52(b)(4), which applies to the state plans of all states participating in the federal Medicaid program:
      A State plan must provide that the State will pay for services furnished in another State to the same extent that it would pay for services furnished within its boundaries if the services are furnished to a recipient who is a resident of the State, and. the following condition [ ] is met ... [i]t is general practice for recipients in a particular locality to use medical resources in another State.

        See and compare La. R.S. 40:1300.144(A)(3)(a)(iv).

      . Although the record does not contain direct evidence of the number of beds River Region has, documentation admitted into evidence shows that in calculating the financial impact that proposed legislation (La. HB 1183 of the Regular Session of 2008) equalizing the per diem reimbursement payments between instate and out-of-state hospitals who administer healthcare services to Louisiana Medicaid patients, the underlying documentation provided to the Legislative Fiscal Office by DHH indicated that River Region was classified at the reimbursement per diem rate for a Peer Group 5 hospital. Additionally, in her deposition testimony, Gough stated that she understood that River Region was a hospital that had over 150 beds and that it was not a teaching hospital. And by definition, River Region is not a rural hospital. See La. R.S. 40:1300.143(7)(a).

      . The evidence established that between March 2000 and July 2009, the per diem reimbursement rate paid to hospitals located within Louisiana who administered healthcare services to Louisiana Medicaid patients that DHH categorized as Peer Group 5 hospitals ranged from $841.70 per day (in 2000) to $999.92 (commencing in September 2007). Contemporaneously, River Region received for its healthcare services to Louisiana Medicaid patients a per diem reimbursement rate that ranged from $496.70 (in 2000) to $525.65 (commencing in July 2000).

      . Through Gough’s testimony, the evidence established that the State pays from its general fund a little less than half the amount it reimburses qualified providers and that the federal government pays the remainder.

      . The documentary evidence establishes that the current per diem rate for Natchez Regional Medical Center on May 1, 2008 was $896.65; and for Natchez Community Hospital, it was $680.05 without an articulation of the bases for the calculation of those per diem rates. Specifically, the record is devoid of evidence of which “like in-state providers” to which these hospitals are comparable.

      . Although River Region also asserted that the DHH Rule was illegal because it fails to comply with the Medicaid Act, 42 C.F.R. § 431.52 in particular, see n. 8, the record is insufficient to support such a finding. While we agree that DHH’s interpretation of § 431.52(b)(4) is strained at best, River Region failed to explain approval by the Centers for Medicare/Medicaid Services of the State of Louisiana’s state plan, which the evidence established included the substance of the DHH Rule. As such, summary judgment could not be granted on that basis. Moreover, having found that, as applied to River Region the DHH Rule is in violation of La. R.S. 40:1300.144(A)(3)(b) sufficient to support the trial court’s grant of summary judgment, we find it unnecessary to address this assertion and pretermit such a discussion. River Region also contended that the DHH Rule failed to comply with La. R.S. 40:1300.144(A)(3)(b) because the DHH Rule did not restrict payment and coverage "to the fullest extent permitted by law,” and pointed to the alleged violation of the Medicaid Act. But as we have indicated, River Region failed to provide sufficient evidence to support a finding that the DHH Rule was not in conformity with the Medicaid Act. Therefore, that assertion is also without merit. The trial court’s judgment declared the DHH Rule as set forth in various rules in the Louisiana Register unconstitutional "because they violate the Equal Protection Clauses of the U.S. and Louisiana Constitutions.” Since we have found the application of the DHH reimbursement methodology is a violation of La. R.S. 40:1300.144(A)(3)(b) because it is unconstitutional as applied to River Region inasmuch as it is a violation of the Commerce Clause, we find it unnecessary to review the propriety of the trial court's conclusion insofar as equal protection violations. In so concluding, we note the same dearth of evidence about the bases for the calculation of the other border hospitals to which the DHH Rule is applied, see n. 12, and, therefore, an affirmance on a determination of equal protection violations would likewise result in amendment of the broad declaration of unconstitutionality stated in the trial court’s judgment. More importantly, similarly to the court in West Virginia University Hospitals, Inc. v. Casey, 885 F.2d 11, 30 n. 9 (3d. Cir.1989), we have reservations about the equal protection rights conclusion reached by the trial court. Accordingly, we pretermit a discussion of the alleged equal protection violations of the DHH Rule as applied to River Region.