author: JOAN BERNARD ARMSTRONG, Chief Judge. LOVE, J.,

text:
    Philip F. COSSICH, Jr., Individually and as a Member and Chairperson of the Plaquemines Parish Charter Commission, James F. Gasquet, III, Individually and as a Member and Vice Chairperson of the Plaquemines Parish Charter Commission, Robert L. Lobrano, et al. v. PLAQUEMINES PARISH GOVERNMENT, William H. Nungesser, in his Capacity as Plaquemines Parish President, Plaquemines Parish Council, Don Beshel, Keith Hinkley, Jerry Hodnett, Stuart J. Guey, Jr., Anthony Buras, Burghart Turner, John J. Friedman, Lynda G. Banta, and Marla Cooper, etc.
    No. 2009-CA-1522.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2010.
    Rehearing Denied Dec. 1, 2010.

      Robert L. Lobrano, Braithwaite, LA and James F. Gasquet III, Law Office of James F. Gasquet, III, Belle Chasse, LA, and Philip F. Cossich, Jr., Cossich Sumich Parsiola & Taylor, LLLC, Belle Chasse, LA, for Plaintiffs/Appellants, Philip F. Cossich, Jr., et al.
    Amos J. Cormier, III, Belle Chasse, LA, and Robert A. Barnett, Guste Barnett & Schlesinger, L.L.P., New Orleans, LA, for Defendant/Appellant, Plaquemines Parish Council.
    W. Eric Lundin, III, Belle Chasse, LA, for Stuart J. Guey, Jr. and Anthony Buras, Jr.
    William H. “Billy” Nungesser, Plaque-mines Parish President, Belle Chasse, LA, In Proper Person, Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge TERRI F. LOVE and Judge MAX N. TOBIAS, JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

_JjThe plaintiffs-appellants/appellees (hereinafter referred to collectively as the “Charter Commissioners”), Philip F. Cos-sich, Jr., James F. Gasquet, III, Robert L. Lobrano, Harold Asevedo, Chris Leopold, Bill Bubrig, Jerome Robinson and Brian Bubrig, individually and as members of the Plaquemines Parish Charter Commission (“Charter Commission”), appeal that portion of an August 31, 2009 judgment denying their petition for mandamus.

Certain defendants-appellees/appellants, Chairwoman Lynda G. Banta, Vice-Chairman Don M. Beshel, Councilmen Burghart H. Turner, Jerry Hodnett, John “Jay” Friedman, and Councilwoman Marla Cooper (hereinafter referred to collectively as the “Council” for ease of reference, recognizing full well that not all members of the Plaquemine Parish Council share their views) appeal another portion of the same August 31, 2009 judgment denying their petition for a Writ of Quo Warranto.

WRIT OF MANDAMUS

The Charter Commissioners initiated this action with a “Petition for Writ of Mandamus” seeking to compel the Council to submit a charter proposed by the Charter Commission to the voters of Plaque-mines Parish. The petition named as | gdefendants the Plaquemines Parish Government, William H. Nungesser, in his capacity as Plaquemines Parish President, the Plaquemines Parish Council, and Don Beshel, Keith Hinkley, Jerry Hodnett, Stuart J. Guey, Jr., Anthony Buras, Burg-hart Turner, John J. Friedman, Lynda Banta and Marla Cooper, each in their capacity as members of the Plaquemines Parish Council.

Certain defendants, council members Anthony Buras, Stuart Guey, Jr. and Keith Hinkley, filed an answer on July 5, 2009, in which they admitted all allegations set forth in the plaintiffs’ petition and prayed that a judgment be rendered granting the plaintiffs’ Petition for Mandamus. Thus, they are not included in the group referred to herein as the “Council,” as they have chosen to side with the Charter Commissioners.

The Plaquemines Parish Government and its president, William H. Nungesser, each filed a similar answer on July 9, 2009.

Initially, the Council filed Exceptions of Prematurity and Lack of Procedural Capacity on July 8, 2009. They later filed an Exception of No Right and No Cause of Action on July 24, 2009. The prematurity exception was later withdrawn. On August 14, 2009, the court heard oral arguments and denied the Exceptions of No Cause and No Right of Action and ruled that they be “referred to the merits” at trial. All exceptions were denied at trial.

On August 7, 2009, the Council filed their answer and reconvened seeking a Writ of Quo Warranto, alleging that the Charter Commission was not a Charter Commission because the Council lacked authority to create one; that, therefore, the Charter Commission had no right, standing or authority to act as a Charter Commission; and that further, any actions taken by the Charter Commission would be null and void and of no force or effect.

[/Trial of this matter took place on August 24, 2009. In addition to the various documents introduced into evidence, plaintiffs offered the testimony of Charter Commission Chairman, Philip F. Cossich, Jr. In response, defendants offered the testimony of Plaquemines Parish Council Secretary, Missy LeBlanc, Council Chairperson, Lynda Banta and Councilmember Burghart Turner. After considering the evidence, the trial court denied plaintiffs’ request for a Writ of Mandamus and also denied defendants’ request for a Writ of Quo Warranto. In oral argument before this Court, both sides agreed that it is inconsistent to deny both the Writ of Mandamus and the Writ of Quo Warrranto.

In his reasons given orally at the end of the trial, the trial judge found that: the language in the Resolution creating the Charter Commission stating as a purpose, “addressing the inconsistencies of the charter,” was ambiguous; that the language was similar to the language in Tudela v. Broussard, 581 So.2d 1068, (La.App. 5 Cir.1991); and that the testimony of council members Banta and Turner suggested that they thought they would “have a chance to take a look at this thing....”

The uncontested facts of the case are that on December 13, 2007, the Plaque-mines Parish Council passed and adopted Resolution 07-463, providing in pertinent part that:

A Resolution creating a Charter Commission consisting of 10 members for the purpose of addressing inconsistencies in the Charter for Local Self-Government, Plaquemines Parish, Louisiana; and otherwise to provide with respect thereto. I4WHERBAS, recently several sections of the Parish Charter have come into question affecting both the Executive and Legislative Branches of Government; and
WHEREAS, the Council wishes to create a Charter Commission in accordance with Section 5 of Article VI of the Louisiana Constitution of 1974, consisting of 10 Members to address the inconsistencies in the Charter for Local Self-Government, Plaquemines Parish, Louisiana;

NOW THEREFORE:

BE IT RESOLVED by the Plaquemines Parish Council that it hereby creates a Charter Commission, in accordance with Section 5 of Article VI of the Louisiana Constitution of 1974, consisting of 10 members for the purpose of addressing inconsistencies in the Charter for Local Self-Government, Plaquemines Parish, Louisiana, as follows ... [Emphasis added throughout.]

The resolution went on to appoint plaintiffs as members of the Charter Commission and named the council attorney as a consultant to the Charter Commission. Following the adoption of Resolution 07-463, Parish President, William H. Nunges-ser, via letter, officially notified all Charter Commission members of their appointment to a Charter Commission.

Mr. Cossich, on behalf of the Charter Commission, testified as follows: Shortly thereafter, the Charter Commission began holding regular meetings which were properly noticed and open to the public in accordance with the open meetings laws. The Commission sought and received advice, guidance and suggestions from all living past parish presidents, the current president of Plaquemines Parish, numerous past and present council members (the same members who created the commission), community leaders, business leaders, concerned citizens, and many Plaquemines Parish employees. The Charter Commission reviewed and assessed various charters from other parishes, the Louisiana Constitution and various applicable state and local laws.

15Charter Commissioner Stuart Guey later was elected to the Parish Council and resigned from the commission. The remaining Charter Commission members selected Stephen Braud to fill Gue/s vacancy. Mr. Cossich testified that this action was done in accordance with the provisions of La. R.S. 38:1895 et seq. No member of the Plaquemines Parish Council objected.

By early April, 2009, a draft of the proposed charter had been completed and the Charter Commission scheduled three public meetings in different locations throughout Plaquemines Parish. After advertising the time and place for these public meetings, they were held on April 14, 2009, April 15, 2009 and April 16, 2009. At each of the meetings, the Charter Commission presented all of the proposed charter changes and held an open forum so that questions and suggestions could be voiced. A majority, if not all of the Plaquemines Parish Council attended those meetings, during which they asked questions and offered suggestions for the proposed charter.

After the three public presentations, the Charter Commission reconvened, and using the suggestions and input derived from the meetings, revised and finalized the “Proposed Charter.”

On May 11, 2009 the “Proposed Charter” was unanimously approved by the Charter Commission. The following day, the “Proposed Charter” was delivered to the Plaquemines Parish Council and the Parish President. The Council briefs did not contest any of the foregoing description of the Charter Commissions activities as presented by Mr. Cossich in his testimony. Therefore, we find that the Charter [ ^Commission functioned in conformity with what would be expected of a Charter Commission by the Louisiana Constitution and applicable statutes.

On May 14, 2009, two days after receiving the Proposed Charter, the Plaque-mines Parish Council attempted to revoke and annul Resolution 07-463 by adopting Resolution 09-179. On the same day the Parish Council adopted Ordinances 09-108 and 09-109 which appear to be identical in all respects with the exception that Stuart J. Guey voted in favor of 09-108, but against 09-109. The explanation of why there were two identical Ordinances need not detain us as it has no bearing on the outcome of this case. Suffice it to say that both Ordinances purported to create a “Charter Committee” at the same time they “revoked and rescinded” Resolution 07-463. The Parish President, William Nungesser, vetoed Ordinance 09-108. In consequence of these actions, the plaintiffs initiated this litigation with their petition for a writ of mandamus.

The crux of the Charter Commissioners’ argument relies on R.S. 33:1395.2 which states in part: “The calling of an election on a proposed charter once it has been completed by the charter commission is mandatory.” [Emphasis added.] It is this “mandatory” language in La. R.S. 33:1395.2 that forms the basis of the plaintiffs’ right to relief by mandamus. The Council does not dispute the Charter Commissioners’ contention that at no time during the process, during which time there were public notices posted of meetings of the “Plaquemines Parish Charter Commission”, did any member of the Parish Council object.

La. R.S. 33:1395.1 provides in pertinent part that:

§ 1395.1. Charter commission, membership, number; term; preparation, submission, and publication of charter 17A.Each member of the commission shall hold office until a charter is either adopted or rejected by the registered voters of the municipality.... The members of the commission shall take office immediately after election or appointment and shall propose the charter and submit it to the governing authority of the municipality within eighteen months thereafter. The proposed charter shall not be altered or changed in any way by the governing authority of the municipality.
C. The full text of the proposed charter shall be published once in the official publication of the municipality or parish within thirty days after its submission to the local governing authority of the municipality or parish. Responsibility for publication rests with the governing body affected....

Thus, La. R.S. 33:1395.2 makes the calling of an election mandatory, not discretionary, and La. R.S. 33:1395.1 requires that the governing body, in this case the Council, publish the “full text” of the proposed charter within thirty days after its submission to the Council, and that when the mandatory election is held, the proposed Charter must be submitted to the voters in unaltered form. All of these requirements are mandatory, merely ministerial, not discretionary, and are, therefore, appropriate for relief by writ of mandamus. In effect, pursuant to La. R.S. 33:1395.1 and 33:1395.2, once a Charter Commission is created, it takes on a life of its own independent of the Parish Council. The term “Charter Commission” as used in Resolution 07-463, the statutes and the Louisiana Constitution, is a term of art that has a very specific legal meaning and, once created, has an effect that by law cannot be limited or vitiated by after the fact interpretation. Therefore, if the Council created a Charter Commission it does not have the authority to refuse to perform its statutory duties once the charter has been submitted to it. This means |sthat once the Charter Commission has been created and the charter submitted, the law requires the Council to submit it in unaltered form.

Therefore, if we find that the Plaque-mines Council created a Charter Commission as the resolution says it did, then the plaintiffs are entitled to mandamus relief both as to the right to submit the Charter to the voters and the right to submit it to the voters in unaltered form. As to whether Resolution 07-463 created a Charter Commission, we note that even Resolution 09-179 as well as Ordinance 09-108, both of which attempted to abolish the Charter Commission, implicitly recognized the validity of the Commission when they referred to Resolution 07-463 as having created a “Charter Commission.”

The trial judge explained his denial of the Plaintiffs-Appellants Writ of Mandamus in his oral reasons for judgment as follows:

I came here this morning after having read everything leaning one way and I’ve actually changed my mind on it, after what I saw today. I thought the resolution was okay. That did not affect me at all. The couple of things that affected me were, number 1, this ordinance — I mean, this resolution was created by Melissa LeBlanc, who did an excellent job for 27 years, you know, in the Council’s chambers. But with all these attorneys sitting around here, clerk Melissa LeBlanc blew [sic] it up, and I have a problem with the drafting of it.
I’ve got a problem with the — she admits she made a mistake on it.... The language of it, “the purpose of addressing inconsistencies in the charter.” What does that mean? I had a problem with that language. And now I can say it would be easier if it had been said, “addressing the inconsistencies and continuing on with presenting it to the Council.”
I think when the two Council members mentioned about how they thought both were deceived, and that had something to do with it. The case, that [Tudela] case. The language in the [Tudela] case is that the Council was the charter committee commission was supposed to make recommendations to amend or replace those sections of |flthe charter that are vague and contradictory, and not in the best interest of the City of Kenner.
And I see this language is very close to that. In that they were to address the inconsistencies of the charter, not particularly that go to the voting rights of the people. Especially when Council members say that, “I thought I would have a chance to take a look at this thing addressing, inconsistencies in the charter.” So therefore because of that, I don’t think the Plaintiffs have proven their case. And therefore I’m going to deny them request for a mandamus.

The plaintiffs argue persuasively that the plain language of the resolution calling for a “Charter Commission” should be read as written according to the generally prevailing meaning. In spite of the fact that the trial judge employed the term “committee” in referring to the Charter Commission and the Council frequently employed the same term throughout this litigation, Resolution 09-179 creating the Charter Commission clearly refers exclusively to a “Charter Commission” and in no instance makes any reference to the creation of a mere “committee.”

The trial court relied on Tudela v. Broussard, 581 So.2d 1068 (La.App. 5th Cir.1991), but Tudela is distinguishable. Resolution 07-468 specifically references Section 5 of Article VI of the Louisiana Constitution of 1974 as its source authority for creating a Charter Commission. The Tudela resolution does not. The Tudela resolution creates a “Charter Review Commission”, whereas Resolution No. 07-463 in the instant case creates a “Charter Commission.” In other words, |inby placing the word “Review” in the title of the Commission in Tudela, the resolution signaled that the mission of the Commission was not to result in charter changes which would be placed directly before the voters, bypassing the Parish Council. This conclusion is reinforced by the language in the body of the Tudela resolution requiring the review commission or committee to “provide” the Parish Council with its recommendations. There is no requirement in Resolution 07-463 that the Charter Commission in the instant case report back to the Parish Council. The Resolution in the instant case is silent on that matter because by invoking Section 5 of Article VI of the Louisiana Constitution of 1974, the charter changes adopted by the Charter Commission were required by operation of law to be place in unaltered form before the voters. See La. R.S. 33:1395.1 and La. R.S. 33:1395.2, supra.

Finally, we note that in Tudela, the resolution also referred to the commission in that case as a “committee, a term implying a lesser status than that of the ‘Charter Commission’ ”, the term employed consistently throughout Resolution 07-463 in the instant case, a commission whose work product was required to be placed before the voters in unaltered form.

Therefore, the Tudela case is distinguishable from the instant case in every material respect and does not support the defendants in any way and these | n distinctions show that Resolution 07-463 clearly and unambiguously created a Charter Commission. There is no other reasonable explanation for referring to the creation of a Charter Commission pursuant to Section 5 of Article VI of the Louisiana Constitution of 1974.

We also find that the after the fact interpretations of council members Banta and Turner of the meaning of Resolution 07-463 is not persuasive. The Charter Commission refers by analogy to the rule of statutory construction that the understanding of a single member of the legislature, or in this case, a Parish Councilman, is not determinative of legislative intent. Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 609-610, 225 So.2d 362, 372 (1969). Ethyl Corp. v. Collector of Revenue, 351 So.2d 1290, 1293 (La.App. 1st Cir.1977) The intention of a legislator in the enactment of legislation, not expressed to others, though factual, is inadmissible as being irrelevant and of no probative value. Authement v. Davidson, 366 So.2d 986, 989 (La.App. 1 Cir.1978). However, that same intent expressed to the appropriate legislative committees and both houses is admissible as an aid to the courts in determining the true legislative intent. Id. It is the expression of both the intent and purpose of the legislation to the legislature that aids the court in its constitutional function of interpretation. Id. It is not the opinion of the witness/legislator as to what the legislature intended that is admissible, but rather the factual evidence considered by the legislature in enacting legislation. Id.

Regardless, Resolution 07-463 created a Charter Commission, and the fact that the creation of such a commission had legal consequences that neither Mr. Banta nor Mr. Turner foresaw in no way changes the legal consequences. The fact that they may have assumed that the Charter was going to be merely “reviewed” by [12the Charter Commission and that any work product of the Charter Commission would be referred back to the Council for approval is not persuasive in view of the clear language of Resolution 07-463 and the fact that, as distinguished from Tudela, the Resolution is totally devoid of any “review” language or any language suggesting in any way that the work product of the Charter Commission would be submitted to the Council for approval.

Our review of the testimony of the Council Secretary, Melissa LeBlanc, leads us to the same conclusion as our review of the testimony of Mr. Banta and Mr. Turner. Ms. LeBlanc testified as a witness for the Council that it was her opinion (she is not an attorney) that an Ordinance was the appropriate vehicle for the creation of a Charter Commission but that through her own clerical error, she drafted the document in the form of a Resolution. We give no weight to Ms. LeBlane’s opinion on the legal effects of an Ordinance versus a Resolution, and it would have been error had the trial judge done so. However, she did testify as a matter of fact that when she drafted the Resolution she did so pursuant to a directive “to prepare legislation ... creating a Charter Commission.” Therefore, we find that Ms. LeBlanc’s testimony supports the conclusion that the Resolution was drafted for the purpose of creating a Charter Commission. The fact that Ms. LeBlane may not have grasped the fact that a Charter Commission once created takes on a life of its own independent of the Council is not relevant and is entitled to no weight.

By way of analogy we direct our attention to La. C.C. art. 9:

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.

11sTo the same effect see La. R.S. 1:4:

When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.

Thus, once the Council clearly creates a Charter Commission, as they did here, it cannot, after the fact, modify the effect of that action based on the testimony after the fact of one or two members of the Council expressing what they allege to have been their unspoken intent at the time of enactment. See also Richard v. Hall, 03-1488 (La.04/23/04), 874 So.2d 131.

QUO WARRANTO

The Parish Council argues that the Charter Commission has no right whatsoever to seek a Writ of Mandamus and that any attempt to do so usurps the discretionary power of the Plaquemines Parish Council to formulate ballot proposals and to call elections as per the Plaquemines Parish Charter for Local Self-Government; hence the request for the Writ of Quo Warranto by the Parish Council. The Parish Council also argues that no juridical person was created with the capacity to bring this suit. However, the plaintiffs also sued in their individual capacities.

The Council also contends that the Charter Commissioners were without authority to act because they failed to take and file their oath of office as required by La. R.S. 42:141. However, we find that under the facts of this case the members of the Charter Commission would, at the very least be considered to be at all relevant times de facto commissioners, if not de jure commissioners, as explained by the Louisiana Supreme Court in Thibodeaux v. Comeaux, 243 La. 468, 488-90, 145 So.2d 1, 8-9 (La.1962):

114This court has repeatedly held that a public officer’s failure to qualify under LSA-R.S. 42:141 will not vitiate his acts if he fulfills the requirements of a de facto officer. In State v. Hargis, 179 La. 623, 154 So. 628, a clerk of court failed to qualify by failing to furnish bond required by law within thirty days after having received his commission. Nevertheless, he took physical possession of the office and performed the duties of clerk for approximately two years before it was discovered that he had not furnished a bond. In ruling on an accused’s objection to proceeding with a trial of a criminal case on the ground that the court was not legally constituted due to the lack of a clerk of court, the court recognized the following to be controlling under these facts:
‘A person is a de facto officer where he exercises the duties of an office under color of a known and valid appointment or election, but where he failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like. Vide, ‘Public Officer,’ 22 R.C.L. s 306, p. 588.
‘A de facto officer is no more a usurper than is a de jure officer. As long as he is in possession of the office he will be a de facto officer, and all acts performed by him in the exercise of his official functions and strictly within the limits of existing statutes will be considered legal. This is from considerations of public policy.
‘The de facto doctrine was introduced into the' law as a matter of policy and necessity to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of an office, without being lawful officers. 22 R.C.L. s 307, p. 589.
‘And the acts of an officer de facto are as valid and effectual where they concern the public or the rights of third persons, until his title to the office is adjudged insufficient, as though he were an officer de jure. 46 C.J. s 378, p. 1060.’
| tfiAnd in State v. Mayeux, 228 La. 6, 81 So.2d 426, where a deputy sheriff failed to take the oath of office or file the bond required by law, the court said:
‘In the case of State v. Hargis, 179 La. 623, 154 So. 628, a de facto officer is defined as a person who exercises the duty of an office under color of a known valid appointment or election, but who failed to conform to some precedent, requirement, or condition, as to take an oath, give bond, or the like. See also 67 C.J.S. Verbo Officers s 146, page 447. It is stated in State v. Breedlove, 199 La. 965, 993, 7 So.2d 221, 230 that ‘the jurisprudence of this State is well-established that the acts of an officer de facto, so far as they affect the public, should be recognized as valid.’ ”

Id.

Thus, at the time the Charter was submitted to the Council, the Charter Commission was qualified to act either as a de facto charter commission or as a de jure Charter Commission. In either case, the law mandates that the Council submit the Charter as proposed to the voters in unaltered form.

Therefore, the Parish Council’s attempt to rescind the authority of the Charter Commission through Resolution 09-179 as well as Ordinances 09-108 and 09-109 came too late to vitiate the effectiveness of the proposed Charter as the Charter Commission’s submission of the Charter antedated those actions.

The Parish Council contends that in order to create any board or commission, Plaquemines Parish Charter Art. 4, § 4.01(A)(24) requires an Ordinance. However, Parish Charter § 401(A)(24) applies only to “advisory boards” and not to the Charter Commission in the instant case.

| ifiThe Parish Council also argues that because the Charter Commission was created by resolution, it is not valid under Plaquemines Parish Charter Article 4, § 4.01(C) which states that only an Ordinance shall have the effect of law. The trial judge specifically noted in his oral reasons for judgment that he did not agree with this argument and neither do we. La. R.S. 33:1395.1 provides that a Charter Commission “shall ... be appointed in the manner provided by the governing authority of the ... parish.” Plaquemines Parish Charter, Art. 1, § 1.01 designates the Plaquemines Parish Council as the “governing authority.” In creating the Charter Commission, the Council was not enacting a law which would have had to have taken the form of an Ordinance. An Ordinance would have to be submitted to the Parish President. La. Const. Art. VI, § 5 provides that it is sufficient that the local “governing authority” appoint the commission and in this case, pursuant to Plaque-mines Parish Charter Art. 1, § 1.01, the Parish Council has been designated as the “governing authority.” The democratic safeguards inherent in such a system are more than fully realized by the requirement that the final product of the Charter Commission be submitted to the popular vote of the electorate. We can see no policy reason why the creation of a Charter Commission whose work product must be submitted to the popular vote of the electorate would be more beneficial to the electorate if created by Ordinance rather than by Resolution.

In this case the Parish elected to do so by resolution which was legally sufficient.

The Parish Council also argues that Resolution 07-463 had a single objective that was stated therein: “for the purpose of addressing inconsistencies in the Charter,” and what the plaintiffs’ propose exceeds that stated purpose.

| 17The Council relies on Perez v. Plaquemines Parish Commission Council, 391 So.2d 1308 (La.App. 4 Cir.1980), to support its contention that the Plaquemines Parish Charter is a pre-1974 La. Const. Art. VI, § 4 Home Rule Charter, and not an Art. VI, § 5 Home Rule Charter. La. Const. Art. VI, § 4 states that:

Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.

Based on the language above in La. Const. Art. VI, § 4, the Council contends that the method of amending the Charter as set forth in the Charter at the time the Constitution of 1974 was adopted is controlling and that, therefore, charter changes via a Charter Commission as provided for in La. Const. Art. VI, § 5 do not apply. We hold otherwise.

In Perez this Court held that the Plaquemines Parish Charter was a pre-1974 Charter. At the time this Court decided Perez, this Court found that Plaquemines Parish was operating under the Charter adopted in November of 1966. But as this Court pointed out in Plaquemines Parish Council v. Petrovich, 629 So.2d 1322, 1323 (La.App. 4th Cir.1993), Plaquemines Parish has been governed by a posW1974 Charter effective January 1, 1987, creating the President-Council form of government. As La. Const. Art. VI, § 4 applies to only those Charters in existence |isat the time the Constitution was adopted in 1974, it in no way prevents Plaquemines Parish from adopting a La. Const. Art. VI, § 5 Charter Commission under its post-1974 Charter. Moreover, Section 1.01 of the Plaquemines Parish Charter Art. 1, § 1.01 specifically references La. Const. Art. VI, § 5. Additionally, even La. Const. Art. VI, § 4 when it speaks of amending a charter employs the permissive “may” such that we conclude that it does not preclude the use of other means of amending a charter. That the use of “may” in. La. Const. Art. VI, § 4 is intended to be permissive is supported not only by accepted usage in legal documents, but by the fact that it so obviously contrasts with the mandatory “shall” employed five words earlier in the same sentence.

Similarly Plaquemines Parish Charter Art. 8, § 8.05 provides that:

Amendments to the Charter may be proposed by an Ordinance adopted by the Parish Council or by petition of Fifteen (15) Percent of the qualified voters of the Parish, giving their ward, precinct, and address, duly certified by the Registrar of Voters as to the names and signatures of the registered voters on such petition from the registration records in his office. The Parish Council shall hold an election within 60 to 120 days after the adoption of the Ordinance for Amendment, or after receipt of a duly certified Petition for Amendment as above.

The use of the permissive “may” found in both La. Const. Art. VI, § 4 and in Plaquemines Parish Charter Art. 8, § 8.05 reinforces the conclusion that the methods for amending the Charter are set forth therein are not intended to be exclusive, especially when it is recalled as stated earlier that the Charter also incorporates La. Const. Art. VI, § 5.

11flTherefore, we find that the Council exceeded neither its constitutional authority nor its authority under the Plaquemines Parish Charter when it enacted Resolution 07-0463.

DECREE

For the foregoing reasons, we affirm the trial court’s denial of the Council’s request for a writ of Quo Warranto; we render judgment in favor of the Charter Commission reversing the trial court’s denial of the Charter Commissioners’ request for a Writ of Mandamus. Accordingly, we hereby remand to the trial court for the issuance of an Order to the Council ordering the Council to submit the proposed Charter to the voters in unaltered form in accordance with and in the manner prescribed by La. R.S. 33:1395.1 and 33:1395.2.

DENIAL OF QUO WARRANTO AFFIRMED; DENIAL OF MANDAMUS REVERSED AND REMANDED.

JONES, J., Dissents for the Reasons Assigned by J. LOVE.

LOVE, J., Dissents and Assigns Reasons.

LOVE, J.,

Dissents and Assigns Reasons.

|,I respectfully dissent from the majority’s decision to reverse and remand the trial court’s denial of the writ of mandamus.

A writ of mandamus

is an extraordinary remedy which is used sparingly by the courts to compel something that is clearly provided by law, and only where it is the sole available remedy or where the delay occasioned by the use of any other remedy would cause injustice; it does not issue in doubtful cases, nor where there is any element of discretion left to the public officer.

Schoeffler v. Drake Hunting Club, 05-499, p. 19 (La.App. 3 Cir. 1/4/06), 919 So.2d 822, 835. A mandamus is used “only when there is a clear and specific legal 12right to be enforced or a duty which ought to be performed.” Hebert v. Abbey Healthcare Group, Inc., 94-1280, p. 4 (La.App. 3 Cir. 5/17/95), 657 So.2d 278, 280. “This writ is never granted in doubtful cases.” State ex rel. Hutton v. City of Baton Rouge, 217 La. 857, 47 So.2d 665, 669 (1950). A writ of mandamus is warranted when there is a ministerial duty that requires “no exercise of judgment or discretion, however slight, in their performance.” Hebert, 94-1280, p. 4, 657 So.2d at 280. This means the law sought to be enforced is in “plain and unmistakable terms.” Simon v. Lafayette Parish Sch. Bd., 93-700, p. 2 (La.App. 3 Cir. 2/2/94), 631 So.2d 626, 627. “The courts will not interfere by mandamus to compel the performance of a duty dependent upon disputed and doubtful facts.” State ex rel O’Beirne v. Police Jury of Red River Parish, 16 La.App. 581, 135 So. 57, 59 (1931).

The majority contends, proclaiming that no doubt exists, that Resolution 07-463 and La. R.S. 33:1395, et seq. requires that the Council release the Proposed Charter to the public and hold an election because Resolution 07-463 included the following language:

BE IT RESOLVED by the Plaquemines Parish Council that it hereby creates a Charter Commission, in accordance with Section 5 of Article VI of the Louisiana Constitution of 1974, consisting of 10 members for the purpose of addressing inconsistencies in the Charter for Local Self-Government.

(Emphasis added).

If Resolution 07-463 was interpreted as a law, that law would have to be interpreted “as having the meaning that best conforms to the purpose of the law” if the language “is susceptible of different meanings.” La. C.C. art. 10. While, Resolution 07-463 stated that it was created in accordance with Section 5 of Article VI of the Louisiana Constitution of 1974, it also stated that the Commission was created “for the purpose of addressing inconsistencies in the Charter for Local RSelf-Government.” The purpose of that statement conflicts with the stated purpose of the Commission, which was to address inconsistencies in the Charter for Local Self-Government. This creates doubt as to the purpose and interpretation of Resolution 07-463, which is further evidenced by the Council’s subsequent revocation of Resolution 07-463 and passage of Ordinance 07-109.

Accordingly, I find that the case sub judice is a case of doubt wherein mandamus should not lie. Resolution 07-463’s defined purpose did not state that the Commission was to prepare and submit a revised charter. Instead, Resolution 07-463 states that it created the Commission “for the purpose of addressing inconsistencies in the Charter for Local Self-Government.” Although Resolution 07-463 does indicate that the Commission was created pursuant to Article VI, Section 5 of the Louisiana Constitution of 1974, the defined purpose of Resolution 07-463 conflicts with a commission created to act pursuant to La. R.S. 33:1395, et seq. The usage of the language “for the purpose of addressing inconsistencies” directly conflicts with the portion of Resolution 07-463 that states that the Commission was created pursuant to Article VI, Section 5 of the Louisiana Constitution of 1974.

While the language examined in Tudela v. Broussard, 581 So.2d 1068 (La.App. 5th Cir.1991) is not exactly the same, Tudela remains illustrative of a doubtful factual scenario, which prevents the issuance of a mandamus. Similarly, the language in the case sub judice demonstrates doubt as to whether Resolution 07-463 was passed to create a charter commission subject to the requirements of La. R.S. 33:1395. Given the conflicting language contained in Resolution 07-463 and the jurisprudence that mandamus is not suited for cases involving doubt, I do not find that a mandamus is warranted. Therefore, I find that the trial court did not err in denying the Plaintiffs’ writ of mandamus.

“Quo warranto is a writ directing an individual to show by what authority he 14 claims or holds public office, or office in a Corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.” La. C.C.P. art. 3901. Having found that the trial court did not err in denying the writ of mandamus because the Plaintiffs failed to prove that Resolution 07-463 was passed to create a commission pursuant to La. R.S. 33:1395, the appeal of the writ of quo warranto is moot.

      . The transcript indicates that the judge says the "Déla " case. That is a misprint by the court reporter. The judge was referring to the Tudela case.

      . For reasons set forth later in this opinion in the section concerning the Council’s Quo Warranto action, we find that the undisputed testimony of Mr. Cossich establishes that the Charter Commission members were de facto commissioners, if not de jure.

      . RESOLUTION NO. B-7064
      A RESOLUTION CREATING A CHARTER REVIEW COMMISSION CONSISTING OF AN APPOINTMENT FROM THE FIVE (5) DISTRICTS AND TWO (2) AT-LARGE COUNCILMEN AND THE CITY ATTORNEY, TO REVIEW THE CITY CHARTER ESTABLISHED IN 1974 AND MAKE RECOMMENDATIONS TO AMEND OR REPLACE THOSE SECTIONS OF THE CHARTER THAT ARE VAGUE, CONTRADICTORY OR NOT IN THE BEST INTEREST OF THE CITIZENS OF THE CITY OF KENNER

      WHEREAS, certain wording in the Charter has been identified as being vague, lengthy or cumbersome; and,
      WHEREAS, there is a need to review the Charter to determine if wording needs to be streamlined, simplified, or further clarified; and,
      WHEREAS, if the commission identifies aspects of the Charter that they recommend to be changed, then the commission should provide these recommendations to the City Council six (6) months after the creation of the committee.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Shirleen ELLIS v. RELIABLE SKYCAP, LLC.
    No. 10-CA-117.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2010.
    Shirleen Ellis, Reserve, Louisiana, In Proper Person.
    John W. Ellinghausen, Michael L. De-shazo, Attorneys at Law, New Orleans, Louisiana, for Appellee, Reliable Skycap, LLC.

      Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

|2In this workers’ compensation matter, claimant alleges that the lower court judge erred in finding that there was no compen-sable accident. For the following reasons, we affirm the lower court’s ruling.

Procedural History

On August 18, 2008, Shirleen Ellis filed a Disputed Claim for Compensation, alleging that she had accidentally injured her back at work, and that her employer, Reliable Skycaps, had failed to pay her workers’ compensation benefits. Reliable Skycaps denied that an accident occurred or that claimant had been injured while in its employ. Trial took place on July 23, 2009. After a complete trial, the workers’ compensation judge found that there “is not sufficient evidence of a compensable accident,” and dismissed Ms. Ellis’ case. Ms. Ellis, who is representing herself in this Court as she did in the lower court, appeals that ruling.

Facts

Reliable Skycaps (“Skycaps”) is a small, family-owned company that employs men and women at the Louis Armstrong New Orleans International Airport to help departing and arriving passengers with their baggage and 1 .^transportation needs. These skycaps are assigned to a specific passenger drop-off zone, which corresponds to one of three specific airlines. The company’s employees are compensated primarily by the tips that they receive from travelers for services rendered.

At trial, Ms. Ellis testified that she had been employed by Skycaps since January of 2007. Ms. Ellis testified that, in May of 2008, she worked “upstairs” as a skycap for passengers departing New Orleans on U.S. Airways. She also reported that she worked primarily with Eugene Scott and Robert Teague.

At trial, Ms. Ellis testified that, on May 15, 2008, she was injured while working as a skycap when she lifted a heavy piece of luggage. She insisted that she told Eugene Scott, who she believed to be her “immediate supervisor,” and her fellow skycap, Robert Teague, of her injury as soon as it occurred.

Mr. Teague, who is the nephew of Skycaps’ owners, testified conversely that Ms. Ellis never told him that she was injured. Moreover, Mr. Teague noted that, whenever he worked as a skycap with Ms. Ellis, she rarely, if ever, lifted bags. Mr. Teag-ue stated that Ms. Ellis preferred to input passenger’s information at the computer terminal, rather than handle the baggage.

Co-owners A.D. and Frank Williams testified separately that, in response to a written complaint from the U.S. Airways’ station manager, Ms. Ellis was terminated from her job at Skycaps on May 17, 2008 for violating the company’s policy against soliciting tips from customers. A.D. Williams also testified that Ms. Ellis made her first report of her alleged injury to him on May 27, 2008, ten days after her termination. He specifically denied Ms. Ellis’s claim that she had told him that she had suffered a work-related injury at the time of her termination. Similarly, Frank Williams testified that Ms. Ellis did not report any injury to him until after her termination. Notably, Ms. Ellis admitted, on cross examination, that |4she had filed, throughout the years, “probably a lot” of workers’ compensation claims because “I report something that happens to me on the job.” After a complete trial, the judge found no compensable accident and dismissed Ms. Ellis’ case. Ms. Ellis, filing in proper person, now appeals.

As a preliminary matter, we note that, on April 15, 2010, Skycaps filed a Motion to Dismiss Ms. Ellis’ Appeal as Frivolous, For Sanctions Pursuant to Uniform Rules-Court of Appeals Rule 2-12.13 and for an expedited hearing. While the motion to dismiss was well-written and thoughtfully-reasoned, we deny the motion to dismiss. Discussion

In her brief to this Court, Ms. Ellis raises two central arguments: first, that the trial court erred in allowing her to proceed without a lawyer and, second, that the trial court erred in finding the testimony of Skycaps’ witnesses was more credible than her testimony. In its brief, Skycaps argues that the trial court did not err in its ruling and, thus, its ruling should not be disturbed on review.

In her brief, Ms. Ellis alleges that “the trial was made in error due to the fact that I did not have a lawyer to represent me.” Construed liberally, it appears that Ms. Ellis is alleging that the trial court erred in failing to appoint an attorney on her behalf, or in allowing her to proceed without an attorney. As counsel for Skycaps points out, it is well-settled that the 6th Amendment right to counsel does not apply in a civil proceeding. Wallace v. PFG, (La.App. 1 Cir. 5/6/05), 916 So.2d 175, 178 (noting workers’ compensation claimant’s confusion of rights in civil proceeding with those available to a criminal defendant under the 6th amendment). We agree that this argument lacks merit.

|fiNext, Ms. Ellis asserts, “I believed that telling the truth was enough, but the Skycap Company ... did not tell the truth.” Essentially, Ms. Ellis challenges the trial court’s credibility determination.

Again, as correctly noted by Skycaps, factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161, 1164. Because determination of the existence of a work-related injury is a question of fact involving credibility of witnesses, the determination of the trial judge, who had opportunity to observe and hear the witnesses, is given great weight on review. Id.

Our review of the trial transcript reveals no manifest error in the workers’ compensation judge’s findings. There were no witnesses to her accident. At trial, Ms. Ellis stated that she immediately told her fellow employee, Robert Teague, of her injury as soon as it occurred. Mr. Teague, however, flatly denied that Ms. Ellis had told him of an injury. Here, the claimant’s uncorroborated testimony regarding her alleged accident was refuted by at least one witness. The argument also lacks merit.

Based on the foregoing, we affirm the workers’ compensation judge’s finding of no compensable accident and dismissal of the disputed claim. Each party is ordered to bear its own costs of this appeal.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Joseph STOKES.
    No. 10-KA-171.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Matthew Claus, Jennifer Rosenbach, Assistant District Attorneys, Gretna, LA, for Plain-tiffiAppellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this criminal matter, defendant Joseph Stokes appeals his convictions and sentences on one count of possession of heroin and one count of possession of cocaine. He contends that the trial court erred in denying his motion to suppress the evidence. For the reasons that follow, we affirm the judgment of the trial court and remand this matter with instructions.

PROCEDURAL HISTORY

On August 7, 2009, Joseph Stokes was charged by bill of information with one count of possession of heroin and one count of possession of cocaine, violations of La. R.S. 40:966(0 and La. R.S. 40:967(C) respectively. The defendant pleaded not guilty at arraignment. The defendant filed a motion to suppress evidence, which the trial court denied on December 3, 2009.

This matter was set for trial on December 7, 2009. The record indicates that it was necessary to conduct the trial four days after the denial of the motion to 1 ¡¡suppress because one of the state’s witnesses was about to be deployed to Iraq. On December 7, the morning of the trial before trial commenced, counsel for the defendant made an oral motion to appoint a sanity commission to determine the defendant’s capacity to proceed to trial. The trial court entertained the motion that morning. At the conclusion of the hearing, the trial court denied the motion and ordered the parties to proceed to trial.

Thereafter, the defendant withdrew his not guilty pleas and pleaded guilty as charged to both counts. The defendant reserved the right to challenge the trial court’s denial of the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

The trial court sentenced the defendant to a term of imprisonment of ten years at hard labor on the possession of heroin charge. The trial court sentenced the defendant to a term of imprisonment of three years at hard labor on the possession of cocaine charge. The trial court additionally ordered that the sentences be served concurrently.

That same day, the state filed a multiple offender bill of information alleging the defendant to be a third felony offender. After the trial judge advised the defendant of his habitual offender rights, the defendant admitted to the allegations in the habitual offender bill of information. The court accepted the stipulation, found that the defendant was a third felony offender, and vacated the 10-year sentence on the possession of heroin charge. The trial court imposed an enhanced 10-year sentence at hard labor without benefit of probation or suspension of sentence on the possession of heroin charge. The trial court also ordered the enhanced sentence to run concurrently with the sentence on the possession of cocaine charge as well as any other time the defendant was facing.

J^PACTS

The following facts were developed from the testimony presented at the hearing on the motion to suppress.

Detective Paul Smith of the Jefferson Parish Sheriffs Office testified that he received a telephone call from a reliable confidential informant on July 10, 2009 indicating that a blue colored sports utility vehicle bearing license plate number RCB-217 would be traveling to a Days Inn in Harvey. The informant further indicated to Detective Smith that the Days Inn was located at 3750 West Bank Expressway and that the sports utility vehicle would arrive at the motel between the hours of 8:15 and 8:45 p.m. The confidential informant also told Detective Smith that one Joseph Stokes, an African-American male born on July 4,1965 (later identi-fíed as the defendant) would be seated in the sports utility vehicle’s passenger side and that he was traveling to the Days Inn to deliver a “quantity of narcotics.”

Detective Smith testified that the confidential informant had provided him with information for more than ten years. Detective Smith testified that the confidential informant had previously provided him with information which led to several past arrests and convictions and that the informant had never failed him in any way in any past investigations.

Detective Smith considered the information the informant provided in this instance to be credible. Detective Smith informed Sergeant Curtis Matthews of his discussion with the informant. Detective Smith and Sergeant Matthews decided to conduct surveillance of the Days Inn and proceeded to that location with two other police officers. Detective Smith testified that he drove an unmarked vehicle to the Days Inn.

IsAt approximately 8:30 PM, Detective Smith observed a blue sports utility vehicle with license plate number RCB-217 enter the parking lot of the Days Inn. Detective Smith subsequently observed the defendant exit the front passenger door of the sports utility vehicle and walk in the direction of a stairwell. Detective Smith testified that he and Sergeant Matthews exited their police cruisers and began to approach the defendant. Detective Smith further testified that his firearm was not drawn, that he was dressed in plain clothes, and that his badge was clearly visible on his chest.

Detective Smith testified that he and Sergeant Matthews yelled something to the effect of “Hey, what’s up” or “Hey, what’s going on” in the defendant’s direction. The defendant turned around, looked at Detective Smith and Sergeant Matthews, and dropped a paper bag that he had been carrying in his hand. Sergeant Matthews immediately detained the defendant. Detective Smith retrieved the paper bag that the defendant dropped while Sergeant Matthews detained the defendant.

Detective Smith opened the bag. He observed two clear plastic bags each containing off-white rock-like objects and three silver foils containing a light brown substance. Detective Smith immediately field-tested the rock-like objects and the light brown substance. The rock-like objects field-tested positive for crack cocaine. The light brown substance field-tested positive for heroin. Detective Smith thereafter arrested the defendant and read the defendant his Miranda rights.

Sergeant Curtis Matthews testified at the hearing on the motion to suppress that he also observed the blue sports utility vehicle pull into the Days Inn at 3750 Westbank Expressway in Harvey. Sergeant Matthews recalled that the sports utility vehicle and Louisiana license plate matched the description of the vehicle Rgiven to him by Detective Smith. Sergeant Matthews also observed the defendant exit the vehicle from the front passenger side of the car. At the time, Sergeant Matthews’s vehicle was parked approximately 10 yards away from the defendant. Sergeant Matthews testified that after he and the other police officers exited their vehicles and began to walk in the direction of the defendant, the defendant “looked at us [then] turned and dropped the bag.” Sergeant Matthews recalled that his badge was visible at the time. Sergeant Matthews asked the defendant to place his hands on top of his police unit while Detective Smith retrieved the brown bag that the defendant had dropped.

At the conclusion of the hearing, the trial court denied the motion to suppress.

ASSIGNMENT OF ERROR

The defendant contends that the trial court erred in denying his motion to suppress because Sergeant Matthews and Detective Smith did not have reasonable suspicion that he had committed or was about to commit a crime at the time they detained him. In response, the State argues the officers had at least reasonable suspicion to stop the defendant due to the information the confidential informant provided to Detective Smith. The state also argues that it is immaterial whether the officers had reasonable suspicion to stop the defendant because the defendant abandoned the narcotics prior to the occurrence of an actual or an imminent stop.

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Similarly, the Louisiana Constitution provides that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const, art. 1, § 5. As a general |7rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. Warrantless searches and seizures are considered to be per se unreasonable unless they can be justified by one of the Fourth Amendment’s warrant exceptions. See, e.g., State v. Freeman, 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 634.

When an individual abandons property without any prior unlawful intrusion into the person’s right to be free from governmental interference, that property may be lawfully seized and used in a resulting prosecution. State v. Jackson, 00-3083, (La.3/15/02), 824 So.2d 1124, 1126 (per curiam). An individual is not “seized” within the meaning of the Fourth Amendment until that individual either submits to a police show of authority or is physically contacted by police. California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991).

In State v. Tucker, 626 So.2d 707 (La.1993), the Louisiana Supreme Court adopted the definition of an “actual stop” as outlined by the United States Supreme Court in Hodari D. However, the court noted that in State v. Belton, 441 So.2d 1195, 1199 (La.1983), it determined that an individual is “seized” within the meaning of the Louisiana Constitution when the individual is either “actually stopped” or when an “actual stop” of the individual is “imminent.”

The Tucker Court further explained, “[i]t is only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain, that an ‘actual stop’ of the individual is ‘imminent.’ ” Tucker, 626 So.2d at 712 (emphasis in original). The Court stated that factors to consider in determining whether an actual stop is “imminent” include the following:

(1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) | ¿whether police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter.

Id. at 712-713 (citations omitted).

We review a trial court’s ruling on a motion to suppress under the manifest error standard. State v. Williams, 08-272 (La.App. 5 Cir. 12/16/08), 3 So.3d 526, 530, writ denied, 19 So.3d 470 (La.10/16/09).

There are several reported Louisiana cases with facts similar to this case. In State v. Ellington, 04-654 (La.App. 5 Cir. 11/30/04), 889 So.2d 1146, a reliable confidential informant informed Sergeant Todd Vignes of the Jefferson Parish Sheriffs Office that the defendant would be selling narcotics at Danny & Clyde’s Food Store on Manhattan Boulevard in Harvey. The confidential informant provided Sergeant Vignes with a description of the defendant’s vehicle and clothing. Id. at 1148.

Sergeant Vignes ordered narcotics agents Richard Valley and Robert Blackwell to set up surveillance at Danny & Clyde’s and informed the agents of the information the confidential informant had provided to him. Immediately after arriving at Danny & Clyde’s, agents Valley and Blackwell observed the defendant inside the store. Id. Sergeant Vignes instructed the agents to approach the defendant and identify themselves as police officers. When agents Valley and Blackwell identified themselves as police officers, the defendant immediately dropped a clear plastic bag. Id. The bag contained four off-white rocks, which later field-tested positive for cocaine. Id.

On appeal, the defendant contended that the cocaine he discarded should have been suppressed because it was the product of an unlawful investigatory stop. The defendant further contended that the officers unlawfully seized the plastic bag, |sas he discarded it after he was subjected to an actual stop. Id. at 1149. This Court disagreed, reasoning that:

The officers’ actions did not constitute an actual or imminent stop. Only two officers approached defendant. There was no testimony to indicate that they had their guns drawn, or that they behaved in a threatening or forceful manner. The officers did not attempt any physical contact. When they approached defendant, the officers did not tell him they suspected him of possessing and/or selling narcotics. They simply identified themselves.

Id. at 1150.

We ultimately concluded that the “defendant, in this case, abandoned the plastic bag and its contents prior to any seizure of his person, the officers were entitled to seize the evidence.” Id.

In State v. Jackson, 00-3083 (La.3/15/02), 824 So.2d 1124, (per curiam), officers received information from a reliable confidential informant that an African-American man named “Derek” was selling cocaine in the 600 block of Sorapara Street in New Orleans. Id. at 1125. The informant additionally indicated that “Derek” would be wearing jeans and a striped shirt and was listening to a Walkman. Two police officers proceeded to the specified location and saw the defendant, who fit the informant’s description. The two officers observed the defendant “walk fast” to a neighboring house. Id. The officers stopped, got out of their vehicle, and positioned themselves at the fence in front of the property where they identified themselves as police officers. The defendant appeared startled, and “discreetly” dropped a packet containing nine rocks of cocaine to the ground. Id. The officers seized the packet and placed the defendant under arrest.

The trial court denied the defendant’s motion to suppress the evidence. The defendant thereafter entered a conditional guilty plea to one count of possession of cocaine pursuant to State v. Crosby, 338 So.2d 584 (La.1976). On appeal, the hnFourth Circuit set aside the defendant’s conviction and sentence, finding that the officers observed no suspicious conduct from which they could conclude that the informant’s allegation of criminal activity was reliable. State v. Jackson, 99-2993 (La.App. 4 Cir. 10/18/00), 772 So.2d 808, 811.

However, the Louisiana Supreme Court reversed the Fourth Circuit. The Supreme Court reasoned that the officers did not “seize” the defendant by merely approaching him and identifying themselves as police. The court stated, in pertinent part:

Because a police officer possesses the same right as any citizen to approach an individual and ask a few questions ... the police do not seize a person merely by standing approximately 10 feet away and identifying themselves without taking any additional measures to assert their authority over the person that he or she would not expect from the encounter if it had occurred with an ordinary citizen.

State v. Jackson, 824 So.2d at 1126 (citations omitted).

Similarly, in this case, the officers’ actions did not constitute an actual or imminent stop. The testimony elicited at the motion to suppress indicates that approximately four police officers approached the defendant. There was no testimony to indicate that any of the four police officers had their guns drawn. Indeed, Detective Smith and Sergeant Matthews both testified that their guns were not drawn as they approached the defendant. As in State v. Ellington, supra, there was no testimony indicating that the officers behaved in a threatening or forceful manner and the officers did not attempt any physical contact. When Detective Smith and Sergeant Matthews approached the defendant, they did not tell him they suspected him of committing a crime. Detective Smith testified that he simply yelled something to the effect of “Hey, what’s up” or “Hey, what’s going on.” The defendant thereafter dropped a brown bag that contained rock-like objects which tested positive for cocaine and a brown powder that tested positive for heroin.

In As there was no actual or imminent stop in this case, the discarded bag of narcotics was therefore abandoned at the time Detective Smith seized it. We need not reach the issues of reasonable suspicion and reliability of the confidential informant. The trial court was not manifestly erroneous in denying the defendant’s motion to suppress, thus, this specification of error is without merit.

ERROR PATENT DISCUSSION

In accordance with our usual procedure, we reviewed the record for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). We note the following.

Denial of Motion to Appoint a Sanity Commission

First, we note that there is a potential error patent because the trial court denied the defendant’s oral motion to appoint a sanity commission without appointing a sanity commission.

At the hearing on the defendant’s motion to appoint a sanity commission, counsel for the defendant indicated that he had not noted any potential issues with the defendant’s inability to understand the proceedings against him before that day. Counsel further indicated that “[t]his is, I guess, the first time that I’ve heard issues about his inability to understand the proceedings against him, and his inability to assist counsel today.” The prosecutor responded that the defendant had not produced any evidence indicating that he may be incompetent. The prosecutor noted that the defendant actively participated with defense counsel at the hearing on the motion to suppress, and that the defendant had filed pertinent motions in his defense.

The trial court allowed defense counsel to engage in a colloquy with the defendant. The defendant indicated that he did not understand why he was there, that he did not understand the nature of the plea bargain the state offered him, that 112he had never been to trial before, and that he did not understand that he would be judged by a jury of his peers. The trial court thereafter noted that in a previous criminal proceeding against the defendant, defense counsel and the state had stipulated to the defendant’s competency to stand trial. The prosecutor additionally noted that the defendant has eleven previous convictions and that competency had been an issue in none of those previous convictions.

The trial court then denied the defendant’s motion. The court noted that the defendant’s testimony was “self-serving” and that there was “absolutely no evidence of lack of competency.” The trial court additionally noted that the defendant participated in the hearing on the motion to suppress with defense counsel and that the defendant was aware of the fact that the trial had to be scheduled expeditiously due to the state’s witness being deployed to Iraq.

According to La.C.Cr.P. art. 641, “[mjental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” A defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. La. C.Cr.P. art. 642. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed. Id. The trial judge is only required to order a mental examination of the defendant when he has a reasonable ground to doubt the defendant’s mental capacity to proceed. La.C.Cr.P. art. 643; State v. Pugh, 02-171 (La.App. 5 Cir. 10/16/02), 831 So.2d 341, 349.

“Reasonable grounds to doubt the defendant’s mental capacity to proceed” refers to information which, objectively considered, should reasonably raise a doubt about the defendant’s competency and alert the court to the possibility that 113the defendant cannot understand the proceedings, appreciate the significance of the proceedings, or rationally aid his attorney in his defense. State v. Williams, 02-1016 (La.App. 5 Cir. 2/25/03), 841 So.2d 936, 942, writ denied, 882 So.2d 571 (La.8/20/04). The defendant bears the burden of establishing that he lacks the capacity to understand the object, nature and consequences of the proceedings against him and that he is unable, in a rational as well as factual manner, to consult with counsel in a meaningful way. State v. Hamilton, 373 So.2d 179, 182 (La.1979).

The ordering of a sanity commission rests in the sound discretion of the trial court. State v. Fish, 99-1280 (La.App. 5 Cir. 4/12/00), 759 So.2d 937, 939. Furthermore, when the issue of a defendant’s incapacity to proceed is presented by “bare allegations without supporting evidence, the exercise of discretion conferred on the trial judge will not be disturbed.” State v. Wilkerson, 403 So.2d 652, 658 (La.1981).

In this case, we cannot say that the trial court abused her considerable discretion in denying the motion to appoint a sanity commission. The trial judge had observed the defendant at the hearing on the motion to suppress four days prior to denying the motion. The defendant actively participated at that hearing. The defendant was aware that the trial date was set to occur on December 7 because the state’s witness was being deployed to Iraq shortly thereafter. Thus, it was in the defendant’s best interest to attempt to delay the proceedings. In addition, as the prosecutor noted at the hearing on the motion to appoint a sanity commission, the defendant is no stranger to the criminal justice system. He has been convicted of numerous offenses and not once been adjudged incompetent.

We find that there was no prejudice to the defendant and his substantial rights were not affected.

| uOther Errors Patent

The trial court failed to properly inform the defendant of the proper two-year prescriptive period for applying for post-conviction relief pursuant to La. C.Cr.P. art 930.8. During the sentencing colloquy, the trial judge advised the defendant that he had two years “from today’s date to seek post-conviction relief.” The commitment/minute entry reflects that the trial court correctly advised the defendant that he had two years from the date his judgment of conviction and sentence became final to seek post-conviction relief. If there is a discrepancy between a minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

The failure to advise a defendant that “the prescriptive period runs from the time his conviction and sentence become final” is an incomplete advisory. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (emphasis in original). La.C.Cr.P. art. 930.8 provides that no application for post-conviction relief, including an application that seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922.

Accordingly, we advise the defendant, by this opinion, that pursuant to La.C.Cr.P. art. 930.8, no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 and 922. State v. Davenport, 08-463 (LaApp. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 2009-158 (La.10/16/09), 19 So.3d 473.

The transcript also indicates that the trial judge sentenced the defendant on the possession of cocaine charge to a term of imprisonment of three years at hard | i.fiabor; however, the commitment/minute entry reflects that the trial judge sentenced the defendant to a term of imprisonment of five years at hard labor on that charge. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand this matter to the trial court. The trial court is instructed to correct the commitment/minute entry form to conform to the transcript.

The transcript further indicates that the trial court ordered the original sentences on the possession of heroin charge and the possession of cocaine charge to run concurrently with each other and “with any other time you are currently serving.” However, the commitment indicates that the trial court ordered the original sentences to run concurrently “with any other sentence presently serving and parole violation sentence.” On remand, the trial court is instructed to correct the commitment/minute entry form to conform to the transcript.

The transcript further indicates that the trial judge ordered the enhanced sentence on the possession of heroin charge to be served concurrently with the sentence on the possession of cocaine charge “as well as any time that you are currently serving.” However, the commitment reflects that the trial judge ordered the enhanced sentence on the possession of heroin charge to be served concurrently with the sentence on the possession of cocaine charge “any other sentence presently serving and parole violation sentence.” On remand, the trial court is instructed to correct the commitment/minute entry form to conform to the transcript.

Accordingly, we will remand this matter to the trial court for correction of the commitment/minute entry. The trial court is instructed to correct the commitment/minute entry to conform to the transcript. In addition, the Clerk of Court for the 24th Judicial District Court is directed to transmit the original of the 11ficommitment/minute entry to the officer in charge of the institution to which the defendant has been sentenced pursuant to La.C.Cr.P. art. 892(B)(2).

CONCLUSION AND DECREE

For the foregoing reasons, the defendant’s convictions are affirmed. This matter is remanded for correction of commitment/minute entry in accordance with the above instructions.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: WALTER J. ROTHSCHILD, Judge. WICKER, J., EDWARDS, J.,

text:
    PARISH OF ST. CHARLES through the DEPARTMENT OF PLANNING AND ZONING v. Wanda FONTENOT, Wife of and Douglas E. Bordelon and Southern Crane Services, Inc.
    No. 08-CA-611.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2010.

      Leon C. Vial, III Director of Legal Services, Hahnville, Louisiana, for Plain-tiffAppellant.
    Douglas E. Bordelon, I.P.P., Montz, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   ON REHEARING

WALTER J. ROTHSCHILD, Judge.

|gThe Parish of St. Charles appeals from a ruling of the trial court granting plaintiffs’ exception of prescription. Plaintiffs filed a motion to dismiss this appeal on the basis that it did not constitute a final judgment. This motion was referred to the merits by this Court on October 27, 2008. For the reasons stated herein, we vacate the trial court’s ruling and remand the case for further proceedings.

Motion to Dismiss

In its motion to dismiss this appeal, defendants contend that the trial court’s ruling does not constitute a final, appeal-able judgment as the exception was sustained to less than all of plaintiffs claims asserted in their petition. Rather, defendants contend the ruling is a partial judgment and absent a specific designation by the trial court that it is appealable, plaintiffs correct remedy was by way of supervisory writ. La. C.C.P. art. 1915(B). Even so, this court has the discretion to convert an appeal to an application |sfor supervisory writs. Cole v. Cole, 07-504 (La.App. 5 Cir. 10/30/07), 971 So.2d 1185, 1188; Stelluto v. Stelluto, 914 So.2d 34, 39 (La.2005); In re Medical Review Panel of Tammy Mineo Freed, 902 So.2d 472 (La. App. 5 Cir. 4/26/05). In this instance we exercise that discretion.

Facts and Procedural History

On October 30, 2007, the Parish of St. Charles through the Department of Planning and Zoning filed in the instant petition against property owners Wanda Fontenot and Douglas Bordelon seeking enforcement of various parish ordinances based on defendants’ non-compliance. Specifically, in Paragraph 4 of the petition, the Parish alleged:

Defendants’, Wanda Fontenot wife of/ and Douglas E. Bordelon, property contains tall, grass and weeds, abandoned, junked, wrecked and/or derelict vehicles, vehicle parts, trash, debris, un-permitted tractor/trailer containers, industrial/derelict equipment, parts, and other noncompliance items which further brings it out of compliance with the St. Charles Parish Code of Ordinances. Defendants are also operating a business, known as Southern Crane Services, Inc., in a residential zoning district. All of these conditions exist on the aforementioned property. Said conditions are in violation of the St. Charles Parish Code of Ordinances.

Defendants responded to this petition with exceptions of liberative prescription, arguing that plaintiffs claims asserted in Paragraph 4 of the petition have prescribed pursuant to La. R.S. 9:5625. Defendants argued that the Parish had written notice of the alleged violations as early as April of 1996 and pursuant to state statute requiring suit to be filed within five years of the violation, the claims have prescribed.

The trial court agreed with this argument and rendered judgment granting the exceptions of prescription and dismissing plaintiffs claims.

| jLaw and Discussion

In determining whether prescription has accrued in a zoning enforcement case, the burden of proof is upon the person pleading prescription. City of New Orleans v. Elms, 566 So.2d 626, 633, 634 (La.1990). However, once that is shown, the burden switches to the party pleading termination of the non-conforming use status by abandonment or discontinuance. Id. at 634; Parish of Jefferson v. Jacobs, 623 So.2d 1371, 1373-1374 (La.App. 5 Cir.1993).

The state statute applicable to this cause of action is La. R.S. 9:5625(A)(3) which provides as follows:

(3) With reference to violations of use regulations all such actions, civil or criminal, except those actions created for the purpose of amortization of nonconforming signs and billboards in conformity with the provisions of R.S. 33:4722, must be brought within five years from the date the parish, municipality, and the properly authorized instrumentality or agency thereof if such agency has been designated, first had been actually notified in writing of such violation.

There is generally no dispute in this case that the Parish received written notice of the violations referred to in the petition. In support of its exception, defendants submitted documentation indicating the Parish received written notice in 1996 and 1999 regarding the abandoned or junk vehicles and that defendants were operating a business in a residential district. However, the Parish argues that the prescriptive statute does not apply to the instant case because the allegations of its petition indicate the violations were ongoing and not subject to prescription, relying on St. Charles Parish Zoning Ordinances, Appendix A, Section 12A, which provides as follows:

| .¡Section XII. Violation and penalty.

A. Violation: In case any building or structure is erected, structurally altered, or maintained, or any building, structure, or land is used in violation of this Ordinance, any proper officials of the Parish of St. Charles, Louisiana, or their duly authorized representatives, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, structural alteration, maintenance, use, or other violations, to restrain, correct, or abate such violation, to prevent the occupancy of such building, structure, or land, or to prevent any illegal act, conduct, business, or use in or about such premises. Each day such violation continues shall constitute a separate violation. The Zoning Administrator may call upon the Sheriff to furnish him with the necessary police personnel to carry out his orders.

Although the Parish asserted this defense to the prescription claim in the court below, the trial court failed to find that this provision applied when the Parish received written notice of the violation as is the case here. In its reasons for judgment, the trial court stated:

Once written notice is received, prescription is controlled by La. R.S. 9:5625(A)(8) [sic], and the party must bring an action within five years of that notice. While the Parish is at liberty to determine what constitutes a violation of its own ordinances, it can not override the dictates of the Louisiana legislature regarding prescription of such violation.

On appeal, the Parish relies on two cases from the Third Circuit wherein the court refused to apply this prescriptive statute where the facts indicated prescription began anew each day there was a violation. In Lafayette City-Parish Consol. Government v. Fitch, 03-377 (La.App. 3 Cir. 10/1/03), 856 So.2d 1276, 1284, the Lafayette City-Parish Consolidated Government brought an enforcement action against the defendant property owners asserting violations of an ordinance related to the operation of salvage yards. The property owners asserted an exception of prescription based on La. R.S. 9:5625 which was denied by the trial court and affirmed 16by the appellate due to the continuing nature of the violations. In finding the City claims had not prescribed, the court stated:

It is correct that the evidence reveals the City’s longstanding knowledge of the condition of the fence. The record contains citizen complaints, indication of criminal prosecutions, and substantial evidence of the City’s continued negotiations with Mr. Fitch regarding compliance with the Ordinances. Although there is evidence of knowledge of past violations, the suit alleges ongoing, daily violations. While the early conduct from 1994 and 1995 may be relevant to the factual background of the City’s case, the current violations are the City’s focus. The question of whether a petition could be maintained for early violations is not before the court. Rather, the record supports the view that the City is alleging ongoing, daily infractions under the current ordinance.

Further, in Lafayette City-Parish Consolidated Government v. Dien’s Auto Salvage, Inc., 05-201 (La.App. 3 Cir. 11/0/05), 916 So.2d 384, 394, a case factually similar to Fitch, the court again declined to find the City’s suit based on violations of ordinances had prescribed although the requisite time period in the statute had expired prior to filing of the suit. Rather, the Court stated:

However, where the Defendants did not construct a fence enclosure or argue that they came anywhere near substantial compliance with the 1997 or 1998 Ordinance, every day that Defendants do not build a fence is a new and separate violation of the fence enclosure provisions. Essentially, prescription begins anew with regard to the non-existent fence enclosure. Id., 916 So.2d at 393.

Likewise, in the instant case, the Parish alleged in its petition that the violations of the ordinances cited therein were continual and ongoing. Although the state statute is silent as to the continuing and ongoing nature of the violation, the parish ordinance specifically provides when the violation is continual, prescription begins anew. There is no indication that a conflict exists between the state legislation and the parish ordinance, nor can we find that the state statute and |7the ordinance are incompatible and cannot be effectuated in harmony. Rather, while we acknowledge that the state enacted general legislation governing this area, we fail to find that the local governmental entity is automatically precluded from acting in that same area. We find that the parish ordinance regarding the effect of a continual violation on the time to commence suit is applicable herein, and we conclude that the trial court erred in concluding otherwise.

Accordingly, after review of the record herein and the applicable law, we find that the exceptions of prescription brought by defendants in this case were erroneously sustained. Rather, as the Parish’s petition alleges that the violations of ordinances existed at the time of the filing of the petition, such claims cannot be prescribed. We therefore vacate the trial court’s ruling in this matter granting the exceptions of prescription and remand the case to the trial court for further proceedings consistent with this opinion.

APPEAL CONVERTED TO SUPERVISORY WRIT; RULING VACATED AND REMANDED.

WICKER, J., dissents with reasons.

EDWARDS, J., dissents with reasons.

WICKER, J.,

dissents with reasons.

|tI respectfully dissent. In my view, La. R.S. 9:5625 governs and the trial judge properly sustained the Parish’s exception of prescription insofar as the alleged use violations.

La. R.S. 9:5625(A)(1) and (3) provides:

A. (1) All actions civil or criminal, created by statute, ordinance, or otherwise, except those actions created for the purpose of amortization of nonconforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, which may be brought by parishes, municipalities, or their instrumentalities or by any person, firm, or corporation to require enforcement of and compliance with any zoning restriction, building restriction, or subdivision regulation, imposed by any parish, municipality, or an instrumentality thereof, and based upon the violation by any person, firm, or corporation of such restriction or regulation, must be brought within five years from the first act constituting the commission of the violation.
(3) With reference to violations of use regulations all such actions, civil or criminal, except those actions created for the purpose of amortization of nonconforming signs and billboards in conformity with the provisions of R.S. 33:4722, must be brought within five years from the date the parish, municipality, and the properly authorized instrumentality or agency thereof if such agency has been designated, first had been actually notified in writing of such violation.

According to R.S. 9:5625, a claim to enforce a zoning violation must be brought within five years from the first act constituting the commission of the violation. However, if the violation in question is a violation of use regulations, the action must be brought within five years from the date the parish, municipality Lor their properly authorized instrumentality or agency first had been notified in writing of such a violation. After the five-year prescription has accrued, the particular property thereafter “shall enjoy the same legal status as land uses ... made nonconforming by” other provisions of the zoning ordinance. R.S. 9:5625(B).

At the hearing below, the defendants introduced evidence that the Parish had written notice of the alleged violations on August 19, 1999. The Parish contends that prescription has not run because it runs anew with each violation as provided in Appendix A, Section 12A, which pertinently provides: “Each day such violation continues shall constitute a separate violation.”

The trial judge concluded that R.S. 9:5625 governed and the claims were prescribed. He relied on R.S. 9:5625(E), which provides: “The provisions of this Section shall supersede any other provisions of law inconsistent herewith.”

The majority concludes that Lafayette City Parish Consolidated Government v. Dien’s Auto Salvage, Inc., 05-201 (La.App. 3 Cir. 11/2/05), 916 So.2d 384 and Lafayette City-Parish Consol. Government v. Fitch, 03-377 (La.App. 3 Cir. 10/1/03), 856 So.2d 1276, cert. granted in part on other grounds, 03-3352 (La.3/19/04), 869 So.2d 783 control. I disagree. In my view, these cases are distinguishable.

In both cases involving similar facts, the Third Circuit found that the City-Parish’s abatement action to enforce an ordinance imposing stringent fencing requirements on salvage yards was not prescribed. The ordinance provided that ongoing daily violations constituted new offenses, and the owners had never complied with the fencing ordinance. The court concluded that the violations were ongoing and the five-year prescriptive period began anew each day a violation continued. Lafayette City-Parish Consol. Government v. Fitch, 03-377 at 11-12, 856 So.2d at 1284; Lafayette City Parish Consolidated Government v. Dien’s Auto Salvage, Inc., 05-201 at 15-16, 916 So.2d at 394-95.

In its more recent case of Lafayette City Parish Consolidated Government v. Dien’s Auto Salvage, Inc., the court noted, however, that although the “anew” language in the ordinance seemed to be in conflict with the “first act” requirement of prescription article La. R.S. 9:5625, there was no conflict in that case. 05-201 at 12, 916 So.2d at 393. The court explained:

For example, if Defendants had constructed a fence enclosure in substantial compliance with 0-363-97, sometime after the effective date of December 1, 1998, but painted it red, the City Parish could not wait five years and a day to bring an action for abatement based upon the color of the fence being out of compliance. The City-Parish would have to bring their action to remedy the problem within the five-year prescriptive period of La. R.S. 9:5625, or by December 1, 2003. However, where the Defendants did not construct a fence enclosure or argue that they came anywhere near substantial compliance with the 1997 or 1998 Ordinance, every day that Defendants do not build a fence is a new and separate violation of the fence enclosure provisions. Essentially, prescription begins anew with regard to the non-existent fence enclosure.

Id., 05-201 at 12-13, 916 So.2d at 393.

In the present case, the defendants, unlike those in the Third Circuit cases, did not allegedly violate an ordinance that required them to comply with building in a certain manner. Instead, they allegedly violated an ordinance that prohibited them from operating a business in the manner described.

Therefore, under these factual circumstances, R.S. 9:5625 supersedes the inconsistent Parish ordinance. R.S. 9:5625(E). And under the clear wording of R.S. 9:5625, the Parish’s action insofar as use violations has prescribed.

Accordingly, I would affirm the judgment sustaining the exception of prescription.

EDWARDS, J.,

dissents with reasons.

hi respectfully dissent. I disagree with the majority opinion that there is no conflict between the State statute and the St. Charles Parish ordinances. La. R.S. 9:5625 provides for a five-year prescriptive period after receiving written notification of a nonconforming use violation for a municipality to bring an action for conformity. That statute is applicable under the facts of this case and clearly supersedes the local ordinance relied upon by the Parish that provides that continuing violations constitute new and separate violations.

Accordingly, I would affirm the ruling of the trial court.