author: GAIDRY, J.

text:
    GALLANT INVESTMENTS, LTD. v. ILLINOIS CENTRAL RAILROAD COMPANY, et al.
    No. 2008 CA 1404.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Eric R. Miller, Teanna W. Neskora, Brandon A. Brown, Baton Rouge, Louisiana, for Plaintiff/Appellant Gallant Investments, Ltd.
    Douglas K. Williams, Nicholas R. Bursa-vieh, Baton Rouge, Louisiana, for Defendant/Appellee Illinois Central Railroad Company.
    J. Wendell Clark, Mark L. Barbre, Baton Rouge, Louisiana, for Defendant/Ap-pellee Progress Rail Services Corporation.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

LA landowner upon whose property two railroad spur tracks were situated appeals a judgment sustaining peremptory exceptions of prescription, dismissing its claims against a railroad company and the alleged successor to a steel salvage business for wrongful removal of the railroad spur tracks. For the following reasons, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

The plaintiff, Gallant Investments, Ltd. (Gallant), is the owner of immovable property located in Baton Rouge, Louisiana. It purchased the commercial property, including a warehouse, in 1985 for the total sum of $1,050,000.00. At the time of the purchase, two parallel railroad tracks ran behind and in close proximity to the warehouse.

On November 15, 1965, Illinois Central and the prior owners of the property entered into a written agreement pertaining to the ownership, maintenance, and use of railroad spur tracks connecting with tracks owned by Illinois Central. Under the terms of that agreement, Illinois Central agreed to construct a portion of spur tracks, connecting with Illinois Central’s tracks, on the property. Illinois Central was recognized as the owner of a certain section of the tracks on the property, including a switch and turnout tracks connecting a section of its tracks with the spur tracks. The prior owners were recognized as owning the remaining sections. The agreement also contained the following provision:

The Railroad Company shall have the right at any time to remove that poytion of the Track oivned, by it upon giving to the [owners] written notice of the Railroad Company’s intention to remove the same thirty (30) days before such removal shall be commenced. (Emphasis supplied.)

| Jt was further provided that the agreement would “run with the land upon which the Track is located,” and was to be binding on the parties’ successors and assigns.

Mr. Valdean Watts was employed by a previous operator of the warehouse prior to 1985. In that capacity, he would report any problems relating to the railroad spur tracks to the prior owners’ representative, who would arrange for appropriate repair or maintenance. Mr. Watts was subsequently employed by Gallant after it purchased the property in 1985. Between 1985 and 1987, he and René Ortlieb, Gallant’s sole stockholder, arranged for repairs and maintenance of the spur tracks, including installation of new rails and cross-ties and track gauging. In 1987, Gallant leased the warehouse to the Ciba-Geigy Corporation, but retained responsibility for management and maintenance of the property. After the lease of the warehouse in 1987, the spur tracks were no longer in use, and Mr. Watts regularly inspected the warehouse about every six months, or twice a year, and also inspected it at the request of the lessee if any maintenance problems arose.

On November 26, 1990, Illinois Central contracted with Steel Processing Services, Inc. (Steel Processing) to remove certain abandoned railroad side and spur tracks, including the rails and cross-ties, with Steel Processing agreeing to purchase the steel rails as scrap. Steel Processing in turn subcontracted the actual removal work with another company, which began work in September 1991. On December 1, 1991, Illinois Central issued an invoice to Steel Processing for the steel rails removed and sold under the contract, including rails allegedly removed from the two spur tracks owned by Gallant.

|4Mr. Watts claimed to have witnessed a contractor removing the tracks from the ' property in June or July of 1993, and to have first contacted Larry Callender of Illinois Central by telephone on July 9, 1993, regarding the removal of the spur tracks.

Gallant filed suit against Illinois Central on April 19, 1994. In its petition, it alleged that it was the owner of certain immovable property in East Baton Rouge Parish, including the railroad spur tracks, and that Illinois Central either removed the tracks, or caused them to be removed, without Gallant’s consent. It further alleged that it discovered that the tracks had been removed in July 1993. Finally, it claimed that it suffered damages in the amount of approximately $250,000.00 by reason of Illinois Central’s actions.

Illinois Central filed its answer on June 10, 1994. It denied liability, and affirmatively pleaded the defenses of Gallant’s contributory negligence, third-party fault, and prescription.

On March 26, 2002, Gallant amended its petition to increase the amount of its claimed special damages to $500,000.00. No answer was filed by Illinois Central, and Gallant obtained a preliminary judgment by default on June 6, 2002.

In its second amended and supplemental petition, filed on June 16, 2005, Gallant alleged that Progress Rail, as successor in interest to Steel Processing, was a “joint tortfeasor” with Illinois Central, and named Progress Rail as an additional defendant. Illinois Central answered, reasserting the affirmative defenses previously pleaded, and additionally pleaded Gallant’s failure to mitigate its alleged damages. After Gallant obtained a preliminary judgment by default against it, Progress Rail also Is answered, denying liability as well as its status as successor in interest to Steel Processing, and further affirmatively pleading the defenses of prescription, contributory negligence, third-party fault, failure to mitigate damages, and equitable estoppel.

On March 20, 2008, Illinois Central filed a peremptory exception of prescription. On April 10, 2008, Progress Rail also excepted to Gallant’s petition on the grounds of prescription.

The defendants’ exceptions were heard on April 28, 2008. Evidence was introduced, and following argument of counsel, the trial court ruled that it would sustain the exceptions and dismiss Gallant’s cause of action. In its brief written reasons for judgment, the trial court expressly noted the factual dispute as to the date of removal of the tracks, and resolved the issue in favor of the defendants, on the basis of the 1991 invoice from Steel Processing to Illinois Central. Its judgment was signed on May 16, 2008. Gallant then instituted this devolutive appeal.

ASSIGNMENTS OF ERROR

Gallant contends that the trial court erred in the following respects:

(1) The trial court erred when it found all of Gallant’s claims to be prescribed.
(2) The trial court erred when it refused to consider Gallant’s breach of contract claims.

ANALYSIS

All personal actions, including actions to enforce contractual obligations, are generally subject to a liberative prescription of ten years, unless otherwise provided by legislation. La. C.C. art. 3499. Delictual actions are subject to a liberative prescription of one year, running from the day injury or damage is sustained. La. C.C. art. 3492. Louisiana Civil Code art. 3493 further provides that “[wjhen damage is caused to immovable | ^property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.” (Emphasis supplied.) Thus, the proper characterization of the nature of Gallant’s cause of action is crucial to the determination of the issues before us.

Because the determination of Gallant’s first assignment of error, relating to prescription, may depend in part upon the validity of its second assignment of error, relating to characterization of its cause of action, we will first address the latter.

Gallant’s Cause of Action

The nature of the duty breached determines whether the action is in tort or in contract. Roger v. Dufrene, 613 So.2d 947, 948 (La.1993). The classic distinction between damages ex contractu and damages ex delicto is that the former flow from the breach of a special obligation contractually assumed by the obligor, whereas the latter flow from the violation of a general duty owed to all persons. Thomas v. State Employees Group Benefits Program, 05-0392, p. 5 (La.App. 1st Cir.3/24/06), 934 So.2d 753, 757. Even when tortfeasor and victim are bound by a contract, courts usually apply the delictual prescription to actions that are actually grounded in tort. Id. The mere fact that the circumstances arose in the context of a contractual relationship does not make the cause of action contractual. The courts are not bound to accept a plaintiffs characterization of the nature of his cause of action if unsupported by factual allegations. Id.

Notably, Gallant’s petition contains no allegations asserting a contractual breach by Illinois Central relating to the removal of Illinois Central’s own switch and turnout tracks, which were clearly the subject matter of the contractual provision requiring thirty-day notice. Rather, its 17claims relate solely to the alleged tortious removal of its spur tracks from its immovable property. Despite the existence of the railroad track use and maintenance agreement between Illinois Central and the prior owners, Gallant’s claim relating to the damage to its immovable property caused by the physical removal of its railroad spur tracks is clearly delictual in nature. See 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise: Property § 293 (2nd ed.2001). Its claim relating to the removal and loss of the disassembled steel rails, no longer attached to the immovable property, presents a closer question.

A conversion is committed when any of the following occurs: (1) possession is acquired in an unauthorized manner; (2) the movable is removed from one place to another with the intent to exercise control over it; (3) possession of the movable is transferred without authority; (4) possession is withheld from the owner or possessor; (5) the movable is altered or destroyed; (6) the movable is used improperly; or (7) ownership is asserted over the movable. Dual Drilling Co. v. Mills Equip. Investments, Inc., 98-0343, 98-0356, p. 4 (La.12/1/98), 721 So.2d 853, 857. In that case, the supreme court articulated the above principles for the civilian cause of action for conversion, and recognized three forms of legal actions available: (1) the revendicatory action; (2) an action for unjust enrichment, based upon quasi-contractual principles; and (3) a delictual action. Dual Drilling Co. at p. 4, 721 So.2d at 856-57. Significantly, the supreme court addressed only the third or delictual action, based upon the fact that the plaintiff “allege[d] a cause of action in tort rather than one for unjust enrichment.” Dual Drilling Co. at p. 4, 721 So.2d at 856.

Gallant’s cause of action is based upon the alleged wrongful damage to its immovable property by removal of the spur tracks and the related Isconversion of the disassembled steel rails or tracks. Arguably, the physical detachment of the tracks from the immovable property and the removal and disposal of the disassembled steel rails should be treated as one wrongful act of “trespass” for purposes of characterization of Gallant’s cause of action. See Yiannopoulos, supra, and 12 William E. Crawford, Louisiana Civil Law Treatise: Tort Law §§ 12.11, 12.12 (2000). But even if the removal and disposal of the rails is properly characterized as a separate act of conversion, we conclude that both of those alleged acts by the defendants are delictual in nature. Gallant’s petition expressly characterizes the defendants as tortfeasors, and in response to Gallant’s allegations, the defendants affirmatively pleaded the tort defenses of contributory negligence, third-party fault, and failure to mitigate damages. Based upon the allegations of its petition, as amended, Gallant’s cause of action against the defendants clearly sounds in tort.

Gallant also contends that the allegations of its petition and the evidence support a quasi-contractual claim for unjust enrichment, subject to the ten-year prescriptive period of La. C.C. art. 3499. As previously observed, we disagree. But even if its allegations could be broadly construed to encompass such a claim, we conclude that any equitable action for unjust enrichment is precluded by the availability of the unambiguously-pleaded delic-tual action, for the following reasons.

A court may resort to equity only where positive or express law does not apply. See La. C.C. art. 4. The quasi-contractual action for unjust enrichment, or actio de in rem verso, was first defined in our jurisprudence in the seminal case of Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1968). The five elements or prerequisites of an actio de in rem verso are the following: (1) there must be an enrichment; (2) there must labe an impoverishment; (3) there must be a connection between the enrichment and resulting impoverishment; (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment; and (5) the action will only be allowed when there is no other remedy at law, i.e., the action is subsidiary or corrective in nature. Minyard, 251 La. at 651-52, 205 So.2d at 432. The fifth element or prerequisite holds that unjust enrichment principles are only applicable to fill a gap in the law where no express remedy is provided. Mouton v. State, 525 So.2d 1136, 1142 (La.App. 1st Cir.), writ denied, 526 So.2d 1112 (La.1988). Because Gallant has a delictual cause of action, it is precluded from having an equitable remedy for unjust enrichment. See Mouton, 525 So.2d at 1143.

Based upon the foregoing, we conclude that Gallant’s second assignment of error has no merit.

Delictual Prescription

Generally, the party pleading prescription has the burden of proving the facts supporting the exception. Quality Gas Products, Inc. v. Bank One Corp., 03-1859, p. 4 (La.App. 1st Cir.6/25/04), 885 So.2d 1179, 1181. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Campo v. Correa, 01-2707, p. 12 (La.6/21/02), 828 So.2d 502, 510. (Emphasis supplied.) Illinois Central presented evidence that the only activity on its part that may have related to the removal of Gallant’s spur tracks was the contract work performed by Steel Processing, and that such work would have been completed by the end of November 1991, since its business practice was not to invoice the purchaser of scrap steel rail until after all work had been completed.

| ipGallant contends that the trial court’s finding of fact that the tracks were removed no later than December 1, 1991, based upon Illinois Central’s invoice of that date, was manifestly erroneous. If evidence is introduced at the hearing on the peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard of review. Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. The evidence introduced at the hearing of the defendants’ exceptions included deposition testimony, contracts, invoices, and other documents, but no live witness testimony. Nevertheless, the manifest error standard applies even when the evidence before the trial court consists solely of written reports, records, or depositions. Shephard v. Scheeler, 96-1690, pp. 12-15 (La.10/21/97), 701 So.2d 1308, 1315-16; Virgil v. American Guar. & Liab. Ins. Co., 507 So.2d 825 (La.1987). In weighing the conflicting evidence pertaining to the time frame within which the tracks were removed, the trial court determined that the invoice and supporting testimony relating to it were more credible and convincing than Mr. Watts’s notes and his testimony based upon them. The trial court’s finding is entitled to deference and is not clearly wrong.

Contra non valentem non cur-rit praescriptio is a Louisiana jurisprudential doctrine under which prescription may be suspended. Carter, 04-0646 at p. 11, 892 So.2d at 1268. Because the doctrine is of equitable origin, it only applies in exceptional circumstances. See Renfroe v. State ex rel. Dep’t of Transp. & Dev., 01-1646, p. 9 (La.2/26/02), 809 So.2d 947, 953. There are four recognized categories of this doctrine: (1) where there |uwas some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. Carter, 04-0646 at pp. 11-12, 892 So.2d at 1268. The third listed category encompasses situations where an innocent plaintiff has been lulled into a course of inaction in the enforcement of his right by some concealment or fraudulent conduct on the part of the defendant. Carter, 4-0646 at p. 12, 892 So.2d at 1269. The fourth category, commonly known as the “discovery rule,” is an equitable pronouncement that statutes of limitation do not begin to run against a person whose cause of action is not reasonably known or discoverable by him, even though his ignorance is not induced by the defendant. Teague v. St. Paul Fire & Marine Ins. Co., 07-1384, pp. 11-12 (La.2/1/08), 974 So.2d 1266, 1274.

Although Gallant concedes in brief that the first three categories of contra non valentem would not apply under the facts, it seeks to justify its failure to discover the removal of the railroad spur tracks by emphasizing Illinois Central’s supposed contractual duty to notify it of the removal of the tracks. Thus, its argument in that regard seems to be based more upon the third category than the fourth. Even if it is assumed that Illinois Central in fact owed such a duty to Gallant, rather than to only the prior owners, the very contract upon which Gallant relies imposed upon it the duty of maintaining those tracks in a condition that would accommodate passage of |12railroad engines and cars. Such a contractual duty surely would encompass a duty to periodically monitor the condition of the railroad spur tracks, independent from but in addition to the general legal duty of a property owner to reasonably maintain his property. The physical removal of the spur tracks could not have been practicably accomplished in a hidden or surreptitious manner, and the absence of 3,650 linear feet of steel railroad tracks was an open and obvious condition of the property, which should have been conspicuous to an owner of immovable property exercising reasonable care in its maintenance.

As the party asserting the benefit of contra non valentem, Gallant bore the burden of proof of its requisite elements and applicability. See Peak Performance Physical Therapy & Fitness, LLC v. Hibernia Corp., 07-2206, p. 7 (La.App. 1st Cir.6/6/08), 992 So.2d 527, 531, writ denied, 08-1478 (La.10/3/08), 992 So.2d 1018. Gallant presented deposition testimony to the effect that Mr. Watts’s periodic inspections were limited to the warehouse, and suggests that neither he, Mr. Ortlieb, nor Gallant had any reason to inspect the condition of the unused railroad spur tracks behind the warehouse. The trial court implicitly found that Gallant failed to meet its burden of proof relating to contra non valentem and should be charged with constructive knowledge of the removal of the tracks from its property. In doing so, the trial court evidently concluded that both the damage to the railroad spur tracks, as immovable property, and the conversion of the steel rails were “reasonably knowable,” or should have been known, no later than April 19, 1993, a year prior to suit being filed and over sixteen months after the tracks were found to have been actually removed. Thus, neither the third nor fourth category of contra non valentem would apply to defeat prescription. The trial court’s factual findings in that regard are supported |1sby the record and not manifestly erroneous. Gallant’s first assignment of error also lacks merit.

CONCLUSION

The judgments of the trial court sustaining the peremptory exceptions of the defendants, Illinois Central Railroad Company and Progress Rail Services Corporation, and dismissing the cause of action of the plaintiff, Gallant Investments, Ltd., are affirmed. All costs of this appeal are assessed to the plaintiff.

AFFIRMED.

GUIDRY, J., concurs.

      . The preliminary judgment by default was never confirmed.

      . The trial court may have concluded that Mr. Watts was truthfully testifying that he personally observed the contractor’s employees removing the steel rails, but was mistaken as to the date of that observation, confusing the dates of the telephone calls documented in his notes with the date of his observation. In short, the trial court could reasonably have concluded that Mr. Watts’s telephone calls were made long after his observation of the activity.


source: Caselaw Access Project

author: KUHN, J. GUIDRY, J.,

license: Public Domain

text:
    CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE v. CAPITAL CITY PRESS, L.L.C. d/b/a The Advocate. Capital City Press and Kimberly Vetter v. East Baton Rouge Parish Metropolitan Council and The Baton Rouge Police Department.
    Nos. 2007 CA 1088, 2007 CA 1089.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Maty E. Roper, E. Wade Shows, Gwendolyn K. Brown, Baton Rouge, Louisiana, for Appellees City of Baton Rouge/Parish of East Baton Rouge.
    Floyd J. Falcon, Jr., Daniel L. Avant, Baton Rouge, Louisiana, for Interve-nors/Appellees Baton Rouge Union of Police, Local # 237, AFL-CIO, et al.
    Lloyd J. Lunceford, Edwin W. Flesh-man, Tom S. Easterly, Baton Rouge, Louisiana, for Appellants Capital City Press, L.L.C. d/b/a The Advocate and Kimberly Vetter.
    Claude A. Schlesinger, C. Theodore AI-paugh, III, New Orleans, Louisiana, for Appellees Louisiana State Lodge, Fraternal Order of Police; Patrick J. Yoes; Baton Rouge Lodge Number 1, Fraternal Order of Police; and Cory N. Reech.
    Before PARRO, KUHN, GUIDRY, DOWNING, and WELCH, JJ.
   ON REHEARING

KUHN, J.

|sIn our October 10, 2008 decision, this court issued a writ of mandamus that directed the East Baton Rouge Police Department (“the BRPD”) and the Baton Rouge Parish Metropolitan Council (“the Metropolitan Council”) to make available to Capital City Press, L.L.C. d/b/a The Advocate (“Capital City Press”), within ten days of the finality of that opinion, a redacted copy of the BRPD Internal Affairs Division (“IAD”) files at issue. Plaintiffs-appellants, Capital City Press and Kimberly Vetter, filed an application for rehearing, asserting this court erred in setting forth the scope of the required redaction. In their application, appellants request that we revisit that portion of our decision “pertaining to the proper scope of [the] required redaction, to more clearly define the terms and conditions pertaining thereto ...” We grant the rehearing and reissue the writ of mandamus with modified instructions.

In our previous decision, we found that the BRPD, the Metropolitan Council, and the Intervenors did not establish, as they had maintained, that the entirety of the IAD records at issue is exempted from disclosure by the Public Records Act. Because we concluded, however, that it was necessary for the IAD records to be redacted prior to their release, our decision then outlined the information properly deemed confidential as follows:

[T]he following information contained in the IAD files was properly deemed confidential pursuant to La. R.S. 40:2532:1) personal information relative to the names, addresses, and identifying information of alleged victims, witnesses, and complainants, including the names of police officers who are complainants; 2) photographs of police officers or others; 3) any home addresses, home telephone numbers, social security numbers, and drivers’ license numbers; and 4) any medical information. Further, records pertaining to pending or 1 reasonably anticipated criminal litigation or arrest records that have not resulted in a final judgment of conviction are expressly exempt pursuant to La. R.S. 44:3 A(l) and (4)(a). Aso, records pertaining to status offenders, see La. R.S. 44:3 A(6), and official driving records are protected public records. See La. R.S. 44:3 G; La. R.S. 15:521 C. (Footnote omitted).

On rehearing, we first clarify that our instructions regarding redaction apply to the facts of the present case only and should not serve as a bright-line test for all future public records requests for IAD records. Next, we turn to appellants’ challenges to our interpretation of La. R.S. 40:2532 with respect to the facts of the instant case.

Appellants ask this court to more specifically define the nature of “medical information” that should be redacted. They contend, “As presently worded, this Court’s October 10, 2008, Judgment may be cited by police to keep secret any physical injuries that occur during an arrest or as a result of the police conduct under IAD investigation.” Appellants urge that medical information that is relevant to the IAD complaints and its resolution should be disclosed.

Athough we find that the chief of police properly exercised his discretion to protect the privacy interests of those individuals not under investigation, it was not our intent to shield from disclosure any medical information that is related to the alleged officer misconduct at issue. Accordingly, we modify our instruction regarding the redaction of medical information to provide that any medical information that is unrelated to the alleged officer misconduct at issue should be redacted from the IAD investigation records. If the medical information is related to alleged officer misconduct, that information should be disclosed after the redaction of the names, addresses, and any other identifying information regarding the alleged victims, witnesses, and complainants.

Appellants further contend that redacting information relative to victims, witnesses, and complainants is not authorized by the Public Records Act, La. R.S. |s44:l et seq. They claim there is no objectively reasonable expectation of privacy that attaches to the broad category of “personal information relative to the names, addresses, and identifying information of alleged victims, witnesses, and complainants.” They assert the redaction should be limited to information regarding “victims who are minors and victims of sex offenses” (La. R.S. 46:1844(W) and La. R.S. 44:3 A(4)(d)) and information regarding witnesses who are in some sort of protective custody of law enforcement authorities (La. R.S. 15:262) or who are “confidential sources” (La. R.S. 44:3 A(2)).

Appellants concede there is an objectively reasonable expectation of privacy that outweighs any competing constitutional interest in disclosure of social security numbers and driver’s license numbers. They also concede that the home addresses and home telephone numbers of police officers under an IAD investigation are exempt from disclosure under La. R.S. 40:2532 and that the home telephone numbers and addresses of public employees are confidential where such individuals have chosen to maintain the confidentiality of that information under La. R.S. 44:11 A(l)-(3). They assert, however, that our October 10, 2008 judgment goes beyond the statutorily-authorized exemptions by protecting all home addresses and phone numbers.

If we were to accept appellants’ position with respect to these latter categories of information (information relative to victims, witnesses, complainants, home addresses, and home phone numbers), we would abrogate La. R.S. 40:2532, which authorizes that certain information may be deemed confidential. The Chief of Police’s exercise of this power is essential to effective law enforcement and for the protection of individual privacy rights. We cannot focus only on the rights of the public and the police officers under investigation, but must also recognize that the liberties of others might well be infringed upon if the identities of individuals and their personal information are disclosed at the conclusion of an IAD |f,investigation. Victims, witnesses, and complainants have a reasonable expectation of privacy, ie., the right to be let alone and to be free from unreasonable intrusions into their solitude and seclusion. See La. Const. Art. 1, § 5; Angelo Iafrate Const., L.L.C v. State ex rel Dep’t of Transp. and Dev., 03-0892, pp. 5-6 (La.App. 1st Cir.5/14/04), 879 So.2d 250, 255, writ denied, 04-1442 (La.9/24/04), 882 So.2d 1131. This reasonable expectation of privacy is embodied in La. R.S. 40:2532. Finding a reasonable expectation of privacy with respect to these categories of information in the instant case, we find these individuals’ privacy interests outweigh the interests of public records disclosure.

With respect to our instructions to redact “photographs of police officers or others,” appellants concede that La. R.S. 40:2532 exempts from disclosure the photograph of a police officer under investigation without his express consent, but they complain of the further redaction of the photographs of others. They assert that “in the case of completed IAD investigations, this could include photographs of people who have complained of police brutality,” urging “when a complaint has been made of police brutality the victim wants the world to know what happened.”

We do not agree with appellants’ assertion that all victims want the world to know they have been victimized. Again, based on the language of La. R.S. 40:2532, we believe that any personal or identifying information pertaining to the victims in these IAD investigation records is information properly deemed confidential. The need for protection of victims and other citizens who provide information to police investigators is a common thread inherent in all IAD investigations. The effectiveness of internal affairs investigations requires open and candid disclosure of information and expectations that privacy rights will be protected.

For these reasons, we modify our October 10, 2008 judgment to clarify that based on the IAD records presented in this case, medical information properly 17deemed confidential pursuant to La. R.S. 40:2532 is “any medical information unrelated to the alleged officer misconduct at issue in the IAD complaints under consideration.” In all other respects, our instructions for redaction remain the same as in our October 10, 2008 judgment. As such, we reissue the writ of mandamus, hereby directing the BRPD and the Metropolitan Council within ten days of the finality of this opinion to make available to Capital City Press for inspection and copying, after redaction in accordance with our modified instructions pursuant to this rehearing, a redacted copy of the IAD files.

WRIT OF MANDAMUS REISSUED WITH MODIFIED INSTRUCTIONS.

PARRO, J., concurs.

GUIDRY, J., concurs in part and dissents in part and assigns reasons.

DOWNING, J., dissents.

GUIDRY, J.,

concurring in part and dissenting in part.

hi disagree with the majority’s pronouncement that the information that may be deemed “otherwise confidential” under La. R.S. 40:2532 is subject to the discretionary determination of the chief of police. Rather, I believe any information deemed “otherwise confidential” under La. R.S. 40:2532 refers to other provisions in the Public Records Act or the Louisiana Constitution that declare the information to be confidential. See La. R.S. 44:4.1.

To the extent the information not disclosed has not been deemed confidential pursuant to the Public Records Act or the Louisiana Constitution, I respectfully dissent from the majority’s expansive interpretation of La. R.S. 40:2532 to provide that such a declaration of confidentiality is left to the discretion of the chief of police. I otherwise concur in the majority opinion.

      . The Intervenors in this matter are the Baton Rouge Union of Police, Local # 237, AFL-CIO ("Local # 237”); Chris Stewart, a BRPD officer, appearing individually and as a representative of Local # 237; Joseph Bourgeois, a BRPD officer, appearing individually and as the district representative of the International Union of Police Associations, AFL-CIO; John Doe #1, #2, and # 3, BRPD officers whose rights and reputations are directly involved in the instant litigation; and Chris Nassif, an Alexandria police officer, who is the president of the Louisiana Union of Police Associations.


author: MAX N. TOBIAS, JR., Judge.

text:
    OAKVILLE COMMUNITY ACTION GROUP v. PLAQUEMINES PARISH COUNCIL, Benny Rousselle, In his Official Capacity as Executive Board Member and Parish President, and Joseph Clark, Amos Cormier, Rick Fremin, John Friedman, and Jerry Hodnet, In their Official Capacities as Plaquemines Parish Council Members.
    No. 2008-CA-1286.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2009.
    Writ Denied May 1, 2009.

      Corinne Van Dalen, Tulane Environmental Law Clinic, New Orleans, LA, for Plaintiff/Appellant.
    Kevin D. Conner, Belle Chasse, LA, for Plaquemines Parish Council.
    Robert B. McNeal, Mark L. McNamara, Liskow & Lewis, New Orleans, LA, for Industrial Pipe, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

| gOakville Community Action Group (“Oakville”), the plaintiff appellant, appeals a judgment by the trial court declining to revoke the coastal use permit issued by the defendants, the Plaquemines Parish Council, Benny Rousselle, in his official capacity as executive board member and parish president, and Joseph Clark, Amos Cormier, Rick Fremin, John Friedman, and Jerry Hodnet, in their official capacities as members of the Plaquemines Parish Council (referred to collectively as the “Council”), to the intervenor, Industrial Pipe, Inc. (“Industrial”). |r,After reviewing the record and applicable law, we reverse the judgment of the trial court and remand the matter for further proceedings.

This case has been before us before. See Oakville Community Action Group v. Plaquemines Parish Council, 05-1501 (La.App. 4 Cir. 9/27/06), 942 So.2d 1152 (hereinafter “Oakville I ”). We summarized the facts and procedural history in that opinion as follows:

The Council conditionally approved an application by Industrial Pipe, Inc. (“Industrial Pipe”) for a coastal use permit to expand a landfill it owned in Plaque-mines Parish, Louisiana. Oakville, a nonprofit organization whose mission was to protect the Oakville community in Plaquemines Parish with respect to environmental, health, and safety issues, filed suit against the Council requesting that the trial court review all records compiled by the Council in connection with its consideration of the coastal use permit for the expansion of the Industrial, Pipe landfill.
In its suit, Oakville alleged that the Council’s decision to conditionally approve an application for a coastal use permit for the expansion of Industrial Pipe’s landfill into coastal wetlands adjacent to the Oakville community would directly and irreparably harm the wetlands. Oakville also contended in its petition that, because a solid waste landfill is not a wetlands dependent land use, the Council had improperly granted the application for a coastal use permit for the proposed landfill expansion. Additionally, Oakville claimed that the Council had improperly issued a coastal use permit without complying with the applicable provisions of the Louisiana Administrative Code. Finally, Oakville asserted that the Council failed to comply with both statutory and constitutional mandates applicable to the approval of the application for a coastal use permit for the proposed landfill expansion.
In response to the petition filed by Oakville, the Council filed peremptory exceptions of no cause of action and no right of action. The Council contended that because Oakville had not first brought its claims before the Secretary of the Louisiana Department of Natural Resources (the “DNR”) for review or sought the Council’s reconsideration of the Industrial Pipe permit, |4Oakville did not have a right of action or cause of action. After a hearing on the exceptions filed by the Council, the trial court judge granted the exceptions and trans-' ferred the matter “to the Louisiana Department of Environmental Quality for a reconsideration and review.

Id. at pp. 2-3, 942 So.2d at 1154.

In Oakville I, we found that the trial court erred in declining to exercise its jurisdiction. We also found that Oakville had stated a cause of action based on its allegations in the petition that the Council had failed to comply with applicable laws and regulations in granting Industrial’s application for a coastal use permit. In particular, Oakville contended that the Council failed to adhere to La. Admin. C. 43:1.723(8), which provides in relevant part as follows:

Permit decisions will be made only after a full and fair consideration of all information before the permitting body, and shall represent an appropriate balancing of social, environmental, and economic factors. The permitting body shall prepare a short and clear statement explaining the basis for its decision on all applications. This statement shall include the permitting body’s conclusions on the conformity of the proposed use with the guidelines, the state program and approved local programs. The statement shall be dated, signed, and included in the record prior to final action on the application.

^Additionally, we noted that pursuant to La. Admin. C. 43:I.723(C)(8), the Council was required to prepare a statement explaining the basis of its decision on all permit applications. Id. at p. 7, 942 So.2d at 1157. [Emphasis added.]

In conclusion we held:

In the instant case, however, Oakville has based its cause of action on the failure of the Council to comply with the regulatory requirements set forth in La. Admin. C. 43:1.723(8) and other applicable laws and regulations in connection with the Council’s granting of Industrial Pipe’s application for a coastal use permit. Thus, the issues upon which Oak-ville’s cause of action in the instant case are based are legal issues, and legal issues are squarely within the conventional experience of the courts, not government agencies such as the DNR. For this reason, we conclude that the trial court erred in transferring this case to an agency for consideration. The trial court should consider the instant case to determine whether the Council complied with all applicable laws and regulations, including La. Admin. C. 43:I.723(C)(8), in approving Industrial Pipe’s application for a coastal use permit.

Id. at p. 9, 942 So.2d at 1157-58. [Emphasis added.]

Following remand, Oakville filed a rule to show cause why the judgment it sought should not be granted. In connection therewith, the trial court permitted Industrial and the Council to file additional memoranda for the limited purpose of discussing the written decision document requirement in La. Admin. C. 43:1.723(0(8). Following oral argument the trial court found that no decision document was required as the coastal permit was issued in accordance with the procedures of a Department of Natural Resources (“DNR”)— approved local permit program. As such, the court did not revoke the coastal use permit issued to Industrial.

Oakville has assigned two errors for review. First, it contends that the trial court erred in finding that the Council was not required to prepare a decision | fidocument pursuant to La. Admin. C. 43.-1.723(C)(8). Oakville also argues that the trial court failed to follow our instruction on remand to determine if the Council had complied with the administrative regulation. In addition, Oakville asserts that the trial court erred in failing to determine whether the council fulfilled its public trustee duty under La. Const. Art. IX, § 1, as enunciated in Save Ourselves, Inc. v. La. Envtl. Control Comm’n, 452 So.2d 1152 (La.1984).

Because the issues presented in this appeal are legal ones, the standard of review is de novo. Vanderhoff v. Beary, 03-0912, p. 2 (La.App. 4 Cir. 8/20/03), 853 So.2d 752, 754, writ denied, 03-2895 (La.1/9/04), 862 So.2d 987 (citing Cleco Evangeline, LLC v. Louisiana Tax Comm’n, 01-2162, p. 3 (La.4/03/02), 818 So.2d 351, 353).

The first issue for our review is whether the Council was required to follow the requirements set forth in La. Admin. C. 43:1.723, and in particular § 723(C)(8) and, if so, whether the Council did, in fact, follow that administrative rule. The Council argues that because it has a local coastal zone management program sanctioned by the DNR, it is not required to follow the requirements set forth in the cited administrative rule and prepare a decision document. We disagree.

We need look no further than the administrative role itself, which we find applies to applications filed with both the state and/or local governments with an approved local coastal management program:

a. Any applicant for a coastal use permit shall file a complete application with the state, or at his option, in areas subject to an approved local coastal management program, with the local government. The department will provide the application forms and instructions, including example plats and interpretive assistance, to any interested party. The staffs of the coastal ^management section and approved local programs shall be available for consultation pri- or to submission of an application and such consultation is strongly recommended. Application forms may be periodically revised to obtain all information necessary for review of the proposed project.

La. Admin. C. 43:I.723(C)(l)(a). [Emphasis added.] The rule continues:

c. Applicants for coastal use permits for uses of state concern shall include with their application filed with the state a certification that a copy of the application was foiwarded by certified mail or hand delivered to the affected local parish(es) with an approved coastal management program.
d. Applicants for coastal use permits for uses of state concern, who elect to submit their application to the affected local parish(es) with an approved local coastal management program, shall include with their application a certification that a copy of the application was foiwarded by certified mail or hand delivered to the state.
2. Content of Application. The application submitted shall contain the same information required for a permit from the U.S. Army Corps of Engineers and such additional information as the secretary determines to be reasonably necessary for proper evaluation of an application.

Nowhere does the rule distinguish between an application filed with the state and an application filed with a local parish with an approved local coastal management program. After the rule permits local government and parishes with approved programs to assess its own. fees for processing and evaluating coastal use permit applications, the rule refers to “the permitting body.” We interpret to mean both the state and a local parish with an approved local coastal management program, because when the rule means the state alone, that is written. With that in mind, we come to § 723(C)(8)(a), which, states:

ls8. Decisions on Permits

a. The permitting body will determine whether or not the permit should be issued. Permits shall be issued only for those uses which are consistent with the guidelines, the state program, and affected approved local programs. The secretary shall not consider the use to be consistent with the state program unless the permit includes condition(s) which, pursuant to § 724, ensure the mitigation of wetland ecological values which would be lost due to the use. Permit decisions will be made only after a full and fair consideration of all information before the permitting body, and shall represent an appropriate balancing of social, environmental, and economic factors. The permitting body shall prepare a short and clear statement explaining the basis for its decision on all applications. This statement shall include the permitting body’s conclusions on the conformity of the proposed use with the guidelines, the state program and approved local programs. The statement shall be dated, signed, and included in the record prior to final action on the application. [Emphasis added.]

No ambiguity exists in the law. As we noted in Oakville /, the Council is required to prepare a statement explaining the basis for its decision on all applications. We find nothing that relieves the Council of this responsibility. Because the parties agree that a decision document was not prepared, it is undisputed that the Council did not follow the law, and, thus, did not have the authority to issue the coastal use permit to Industrial. Consequently, we reverse the trial court, thereby revoking the coastal use permit that the Council issued to Industrial.

| nBased on the foregoing, we reverse the trial court and remand the matter for further proceedings consistent with this opinion.

REVERSED; REMANDED.

      . Pursuant to the definitions contained in La. R.S. 49:214.23(7), a "coastal use permit shall mean the permits required by R.S. 49:214.30 of this Subpart and shall not mean or refer to, and shall be in addition to, any other permit or approval required or established pursuant to any other constitutional provision or statute."
      La. R.S. 49:214.30(A) states:
      A. No person shall commence a use of slate or local concern without first applying for and receiving a coastal use per-mil. Decisions on coastal use permit applications shall be made by the secretary, except that the local, government shall make coastal use permit decisions as to uses of local concern in areas where an approved local program is in effect. Conditions set forth in a coastal use permit shall supersede any and all variances or exceptions granted by the commissioner of conservation in accordance with R.S. 30:4(E)(1) for activities within the coastal zone as defined by R.S. 49:214.24.

      . In Oakville I, we noted that the trial court erroneously referred to the Louisiana Department of Environmental Quality ("DEQ”) as the agency to which a request for reconsideration should have been directed. Both the Council and Oakville agreed that the Department of Natural Resources was the appropriate agency and that the reference to the DEQ was in error. Id. at p. 3, 942 So.2d at 1154.

      . La. Admin. C. 43:1.723 establishes the rules and procedures to be used in connection with, among other things, the issuance of coastal use permits.

      . Because we find that the Council did not follow the law when issuing the permit to Industrial, we pretermit discussion of Oak-ville's second assignment of error.


author: PAUL A. BONIN, Judge

text:
    Donald A. NEEDOM, Stanford S. Collins, Nevell A. Choina, Jr., Frank J. Cina, Alfredo Digregorio, Robert H. Dudenhefer, Louis J. Gentry, Sr., et al. v. Louis L. ROBEIN, Jr. and XYZ Insurance Company. Gerald J. Boesch, Robert M. Buisson, Sr., Terry Lonatro, Ralph W. Maronge, Garry L. Montegue, Frank O’Halloran, III, Lynn A. Wattigny v. Louis L. Robein, Jr. and XYZ Insurance Company.
    Nos. 2008-CA-0318, 2008-CA-0319.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2009.
    Writ Denied May 1, 2009.
    See also 980 So.2d 760.

      Robert H. Matthews, Pauline M. Warri-ner, New Orleans, LA, for Donald Needom and Gerald J. Boesch.
    Gus A. Fritchie, III, McDonald G. Pro-vosty, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Louis L. Ro-bein.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge

_[iThis case tests the limits of judicial restraint in deferring to the policy choices of the Louisiana Legislature. In the end, we do not cross the established boundary; we conclude that La. R.S. 9:5605 is not unconstitutional. Accordingly, for the reasons below, we affirm the trial court judgment sustaining the defendants’ exception of no cause of action and dismissing with prejudice these consolidated lawsuits.

THE STATUTE AND ITS APPLICATION

La. R.S. 9:5605 governs the peremption of legal malpractice claims and provides, in pertinent part:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from 12the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events be filed in a court of competent jurisdiction and proper venue on or before September 7, 1998, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning, of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

The Louisiana Supreme Court, in Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, examined the statute and concluded that it had both a prescriptive component and a peremptive component. Whenever a client is injured by the legal malpractice of his or her lawyer, the client has one year from the act or omission within which to file suit or one year from the date the client knew or should have known of the act or omission within which to file suit. This is the prescriptive aspect of the statute. Like any other prescriptive period, it may be suspended, interrupted, or waived.

However, the second component, which the firefighters in this case challenge as unconstitutional, is the peremptive aspect of the statute. Regardless of whether or when a client learns of the legal malpractice of his or her attorney, and regardless of the date that the attorney/client relationship terminates, no suit may be filed by a client against an attorney for the attorney’s malpractice more than three years after the delictual act or omission by the attorney. Like any other |speremptive period, it may not be suspended, interrupted, renounced, or waived. La. C.C. art. 3461.

In Reeder, the Supreme Court recognized that a client could lose his or her rights against the attorney even before he or she knew of the harm or injury. The Court clearly understood the reach of the peremptive statute. The Court did, however, remand the matter so that the plaintiff could amend his petition to plead the unconstitutionality of the statute. We have heard no more from the plaintiff in Reeder.

Now the New Orleans firefighters are before us, taking up the issue of unconstitutionality where Reeder left off. However, before we examine the constitutionality of the statute, we emphasize that if the statute is constitutional, then we are bound as an intermediate appellate court to follow Reeder and enforce the resulting dismissal with prejudice of the plaintiffs’ cause of action because they did not timely bring an action against their attorney. They will have lost their right to enforce the action even before they knew about it.

THE PROCEEDINGS IN THE TRIAL COURT

The plaintiffs’ petitions set out the history of class-action litigation in which they were involved as plaintiffs and were represented by Louis Robein, Jr., an attorney and the defendant herein. It is a long history, stretching from 1981, and a part of a saga in which New Orleans firefighters have been litigating against the LCity of New Orleans on issues of pay benefits, some of which remain unresolved. See New Orleans Firefighters Local 632 v. City of New Orleans, 2007-1475 (La.App. 4 Cir. 3/05/08), 980 So.2d 760, writ denied, 2008-0626 (La.5/09/08), 980 So.2d 693.

The petitions alleged that the firefighters were led to believe that their suits against the City included a claim for “longevity pay” pursuant to La. R.S. 33:1992(B), which the Legislature by Act 132 of 1962 and Act 55 of 1968 had mandated but not funded. The firefighters further alleged that attorney Robein filed the original lawsuit on their behalf on July 14,1981; however, it was not until November 15, 2004, when the Louisiana Supreme Court denied the writ applications in New Orleans Firefighters Local 632 v. City of New Orleans, 2004-1590, 2004-1601, 2004-1604 (La.11/15/04), 887 So.2d 475, 476, that they learned for the first time that Robein had failed to include in them original lawsuit a claim for “longevity pay.” In denying the writ applications, the Supreme Court declined to review this Court’s decision in New Orleans Firefighters Local 632 v. City of New Orleans, 2003-1281 (La.App. 4 Cir. 5/26/04), 876 So.2d 211, which held that the firefighters’ claim for longevity pay, first asserted in supplemental and amended pleadings in March 1993, had prescribed because the pleadings “did not relate back” to the date of the filing of the original petition. Id. at 16-17, 876 So.2d at 223.

The firefighters then filed this lawsuit against Robein and his legal malpractice insurer on May 25, 2005, which was within one year from the date they “first learned” of the alleged malpractice, but is obviously beyond the three Lyears from the date on which he failed to include the claim for longevity pay in the original lawsuit filed on July 14, 1981.

From the time that Robein filed the original lawsuit, and its multiple amendments and supplements, undoubtedly answering the numerous challenges raised by the City to the firefighters’ claims, clarifying their claims, and expanding the scope of the litigation, he continued to represent the firefighters.

Robein and his insurer filed peremptory exceptions of no cause of action to the plaintiffs’ petitions, pleading the application of La. R.S. 9:5605. An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, 2005-0719, p. 7 (La.3/17/06), 929 So.2d 1211, 1217, citing Industrial Cos., Inc., v. Durbin, 02-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id. Thus, we accept the firefighters’ allegation of the date on which they “first learned” of the omission to timely sue for longevity pay.

Because the firefighters acknowledged that the application of La. R.S. 9:5605, as interpreted by Reeder, to these facts would terminate the litigation in favor of the attorney and against them unless the statute was found to be unconstitutional, they pled the unconstitutionality of the statute. They also properly complied with the notification requirements of La. C.C.P. art. 1880 to the Attorney General when a party seeks to have a state statute declared | ^unconstitutional. See Smith v. Willard, 97-1772, p. 5 (La.App. 4 Cir. 3/11/98), 711 So.2d 723, 725. Because the Attorney General declined to participate in these proceedings, both here and in the trial court, we do not have the benefit of the State’s position regarding the justification, if any, for the constitutionality of the statute.

DISCUSSION

We do, of course, start the inquiry with the strong legal presumption that the statute is constitutional. See Fransen v. City of New Orleans, 2008-0076, 2008-0087, p. 11 (La.7/1/08), 988 So.2d 225, 234 (citations omitted). Because statutes are presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality. Id. It is a fundamental duty of the judicial branch of government to determine the applicability, legality and constitutionality of a statute, and to invalidate acts of the legislative branch which expressly or impliedly violate rights protected by the constitution. See City of New Orleans v. Scramuzza, 507 So.2d 215, 219 (La.1987).

The firefighters challenge the constitutionality of La. R.S. 5605 on three specific grounds: (1) the statute violates due process because it denies persons access to the courts in violation of La. Const. Art. I, § 22; (2) it denies persons equal protection and due process of law under La. Const. Art. I, § 2 and § 3; and (3) it denies persons equal protection and due process of law under U.S. Const., Amend. XIV, § 1.

As the party seeking a declaration that La. R.S. 9:5605 is unconstitutional, the firefighters must meet the standard of showing clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute in |7question. See Fransen, 2008-0076, 2008-0087, at p. 11, 988 So.2d at 234 (citations omitted). The trial judge in this case allowed the firefighters to bring toward considerable evidence to support their contention that the statute violates U.S. Const., Amend. XIV, § 1 and La. Const. Art. I, § 2, § 3 and § 22.

In opposition to Robein’s peremptory exception of no cause of action and in support of their claim that La. R.S. 9:5605 unconstitutionally denies persons access to the courts, the firefighters submitted a law review comment: Jennifer Thornton, Comment, Louisiana Revised Statute Section 9:5605: A Louisiana Lawyers’s Best Friend, 74 Tul. L.Rev. 659 (1999), wherein Thornton states that “a statute of limitations usually withstands an open courts[sic] challenge as long as the statute affords potential plaintiffs a reasonable time within which to file actions.” Id. at 680. The firefighters contend that La. R.S. 9:5605 deprives potential plaintiffs of their right because it may require a client to sue his or her attorney while the attorney continues to represent that client on the matter from which the legal malpractice arises, effectively denying the client a reasonable time within which to file a claim for legal malpractice. As noted,

If clients are reasonably lulled into inaction or do not discover an error or act because they are relying on their fiduciary relationship with their attorney, they may legitimately claim that the statute unreasonably limited their right of access to the courts and their right to a legal remedy.

Id. at 682.

At the July 26, 2007, hearing on the exception, firefighters Donald Needom and Martin Gaal testified that Robein led them to believe that the lawsuit filed in July 1981 contained their claim for a two-percent longevity-pay raise. However, they learned in 2004 that that was not the case when the Louisiana Supreme Court Ldenied the writ applications in New Orleans Firefighters Local 632 v. City of New Orleans, 2004-1590, 2004-1601, 2004-1604 (La.11/15/04), 887 So.2d 475, 476.

La. Const. Art. I, § 22 provides:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

The access to courts clause does not prohibit legislative restriction of legal remedies. Lay v. Rachel-Major, 99-0476 (La.App. 1 Cir. 5/12/00), 761 So.2d 723, 727. The clause operates only to ensure that the courts will be open to provide remedies “which are fashioned by the legislature.” Id. (citing Sons v. Inland Marine Service, Inc., 577 So.2d 225, 230 (La.App. 1st Cir.1991)). In Reeder, the Supreme Court, addressing the issue of access to courts, stated:

Statutes of limitation are exclusively a legislative prerogative. In setting a statute of limitation, a legislature does not eliminate the remedy for a civil wrong; it makes a legislative determination that after a certain period of time no cause of action can arise. Until the time that a cause of action vests, a legislature has the power to create new rights and abolish old ones. Dunn v. Felt, 379 A.2d 1140, 1141 (Del.Super.1977). In finding that the right to recover in tort is not a fundamental right, our court has noted that “[w]here access to the judicial process is not essential to the exercise of a fundamental constitutional right, the legislature is free to allocate access to the judicial machín-ery on any system or classification which is not totally arbitrary.” Bazley v. Tortorich, 397 So.2d 475, 485 (La.1981); Everett v. Goldman, 359 So.2d 1256 (La.1978); Reeder, 97-0239, p. 9, 701 So.2d at 1296-1297. (emphasis added).

The firefighters’ erroneous argument that the access-to-courts clause ensures everyone a right to have his claims heard ignores the exclusions from that universal access concept by means of the legislatively created statutes of limitations. Thus, |awe find La. R.S. 9:5605 does not deny the firefighters access to the courts in violation of La. Const. Art. I, § 22. The firefighters must seek relief not in the lower and appeals courts but in the Legislature.

And their second and third claims of unconstitutionality focus on the Legislature. To prove their second and third claims of unconstitutionality, the firefighters put forth evidence of the so-called “legislative history,” which was the supposed basis for the rationale for the enactment of the statute. The Legislature, in apparent reliance upon the Supreme Court’s reasoning in Crier v. Whitecloud, 496 So.2d 305, 310 (La.1986) (on rehearing), made a “record” justifying the statute on the basis of an insurance crisis affecting legal malpractice premiums, echoing the justification for prescriptive periods and “caps” or limits on amounts of recovery in medical malpractice claims.

The firefighters easily demonstrated the flaws in this legislative history and established clearly that it could not be the basis on which to justify the statute. They offered testimony of a leading provider of legal malpractice insurance coverage in Louisiana, who contradicted the “legislative history” that there was ever a premium crisis. Additionally they proffered the affidavit of a Louisiana lawyer engaged in lobbying the Legislature who similarly contradicted the “legislative history” as being an inaccurate recitation of the facts concerning legal malpractice premium costs or an alleged coverage crisis at the time of the passage of La. R.S. 9:5605.

But, unfortunately for the firefighters, however impressive the testimony of their witnesses as to the misrepresentations and fallacies underlying passage of the|inact, the evidence must have no effect. This case exemplifies why courts should never resort to considering “legislative history” when a clear and unambiguous statute is under attack. It is the act of the Legislature which we must consider, not the statements of lobbyists, special interest groups, or even the policy or the wisdom of legislators themselves. See Scramuzza, 507 So.2d at 219. For this reason, Robein and his insurer are correct that we are not authorized to consider the so-called “legislative history” evidence put forward by the firefighters in making our determination; and we do not.

The doctrine of peremption was not contained in the Code of 1870, but rather was based on Louisiana jurisprudence. See Revision Comment 1982 to La. C.C. art. 3458, Comment (a); Comment, Prescription and Peremption-The 1982 Revision of the Louisiana Civil Code, 58 Tul. L.Rev. 593, 601 (1984). It was codified as La. C.C. art. 3458 by Acts 1982, No. 187, § 1, eff. Jan. 1, 1983. Thereafter, the Louisiana Legislature has enacted specific per-emptive statutes for numerous professions. See, e.g., La. R.S. 9:5604 (certified public accountants-3 years); La. R.S. 9:5606 (insurance agents — 3 years); La. R.S. 9:5607 (architects, engineers, interior designers, surveyors, real estate developers — 5 years).

Additionally, in recent years the Legislature has subjected certain kinds of actions to peremptive limitations, despite a long history in our law. See, e.g., La. C.C. art.2041 (revocatory action-3 years); La. C.C. art. 117 (post-divorce spousal support-3 year’s); La. C.C. art. 2595 (lesion-ary rescission — 1 year).

This governmental interest in prescriptive statutes is clear: it seeks to strike a balance between addressing the harm caused to an injured plaintiff and not disadvantaging the ability of a defendant to know about a claim in time to gather evidence to defeat the claim. Louisiana’s traditional prescriptive periods barring Inactions are comparatively short, but they are subject to modification by special circumstances. A defendant may be timely sued long after the facial prescriptive period has expired because the period was suspended or interrupted by some lawful cause. See, e.g., La. C.C. art. 3469 (prescription is suspended as between spouses during marriage; parents and children during minority; tutors and minors during tutorship; curators and interdicts during interdiction; and caretakers and minors during minority) and La. C.C. art. 3503 (prescription interrupted against a solidary obligor). A defendant can renounce a prescriptive period even after it has accrued. La. C.C. arts. 3449 and 3450. If an action is prescribed, the defendant must timely plead the exception; the court cannot supply it. La. C.C. art. 3452; La. C.C.P. art. 927. Thus, in matters of prescription, the courthouse door is open unless the defendant demands that it be closed to the plaintiff because too much time has passed.

As the U.S. Supreme Court explained in Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945) (discussing statutes of limitations):

Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost... .They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a “fundamental” right or what used to be called a “natural” right of the individual. He may, of course, have the protection of the policy 112while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control, (footnote and citation omitted). See also, Brumfield, v. McElwee, 2007-0548, p. 9 (La.App. 4 Cir. 1/16/08), 976 So.2d 234, 241.

Although the government may have a legitimate interest in enacting prescriptive statutes, the unvarnished reality of the peremptive aspect of the legal malpractice statute, and the other particular peremption statutes mentioned above, is that they are the results of legislative bodies’ enacting special interest legislation. Special interest legislation confers benefits and the protections of the law on a special identifiable group and withholds the same benefits from those not in the group. And the fire fighters make a compelling argument.

Unlike the legislative branch of government, the judicial branch is prohibited from indulging in the selection of its policy preferences and disguising it under the rubric of “unconstitutionality.” Therefore we must apply this law which we find constitutional to these plaintiffs’ claim.

The firefighters correctly argue that the regulation of the practice of law is the exclusive province of the Supreme Court of Louisiana. See La. Const. art. V, § 5(B). That court is the sole authority to determine whether this statute, as written or applied, impinges on its constitutional authority.

kiDECREE

For the above reasons, we agree with the finding of the trial court that La. R.S. 9:5605 is constitutional. Thus, we affirm the judgment of the trial court sustaining the defendants’ exception of no cause of action, and, accordingly, plaintiffs’ suits against the defendants are dismissed with prejudice.

AFFIRMED.

      . Judge Tobias noted the harshness of La. R.S. 9:5605: "In Reeder v. North, 97-0349 (La.10/21/97), 701 So.2d 1291, the Louisiana Supreme Court has determined that La. R.S. 9:5606 is a three year peremptive period for malpractice claims against lawyers. The rule is, in my opinion, unduly harsh given that a lawyer’s client does not generally know of the act of malpractice committed by the lawyer until the case is over. Moreover, the ruling places a client in the untenable position of having to file suit against the lawyer while the lawyer is still in active representation of the client's claim.” Keaty v. Raspanti, 2000-0221, p. 7 (La.App. 4 Cir. 2/7/01), 781 So.2d 607, 612 (Tobias, J., concurring), rehearing denied (3/15/01), appeal after remand, 2003-1080 (La.App. 4 Cir. 2/4/04), 866 So.2d 1045, rehearing denied (3/15/04), writ denied, 2004-0941 (La.6/18/04), 876 So.2d 806, writ denied, 2004-0947 (La.6/18/04), 876 So.2d 807.

        . We make no determination that this is the last date on which Robein might have timely asserted a claim for longevity pay.

      . The statute of limitations for the medical profession, La. R.S. 9:5628, has no peremption aspect. Its three-year limit is prescrip-live in nature. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502.

      . See Marc S. Firestone, Prescription — What You Don't Know Can Hurt You — Louisiana Adheres to a Three Year Limit on the Discovery Rule, 58 Tul. L.Rev. 1547 (1984).

      . See, id. at 1550 n. 26.

      . See Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 108-10 (La.1978) (on rehearing) (Dennis, Tate, and Calogero, J.J., dissenting); Succ. of Smith v. Kavanaugh, Pierson & Talley, 565 So.2d 990, 994 (La.App. 1st Cir.1990), writ denied, 567 So.2d 1125 (La.1990), reconsideration denied, 569 So.2d 950 (La.1990).


author: STEWART, J.

text:
    Arnold Victor WORLEY, et al., Plaintiffs-Appellees v. Loren F. CHANDLER, et al., Defendants-Appellants.
    No. 44,047-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 4, 2009.

      Robert S. Tew, Monroe, for Appellants.
    Paul L. Hurd, Monroe, for Appellees.
    Before STEWART, PEATROSS and DREW, JJ.
   STEWART, J.

| j Defendant-Appellant, Loren F. Chandler, et al., (“Chandlers”), is appealing a written judgment rendered in favor of Plaintiff-Appellee, Arnold Victor Worley, et al., (“Worleys”), awarding them damages totaling $71,705.48, in connection with a contract to buy and sell immovable property. Finding that the Chandlers’ claims bear no merit, we affirm the trial court’s judgment.

FACTS

The Worleys filed suit against the Chandlers, seeking damages for the Chandlers’ failure to purchase the Worleys’ home at 209 Canyon Road, West Monroe, Louisiana. The negotiations related to the sale of this home were reduced to writing in a Residential Agreement to Purchase and Sell.

On February 7, 2006, the Chandlers made the first offer on the home in the amount of $490,000.00 and deposited $5,000.00 in connection with the offer. The Residential Agreement to Purchase and Sell provided that the deposit would not be considered as earnest money and the parties opted for specific performance:

This deposit shall not be considered as earnest money and this contract shall be considered a Specific Performance Contract.

On February 7, 2006, the Worleys made a counter offer to sell for $530,000.00 and added a handwritten provision that occupancy would be granted seven days after the closing, or sooner if possible.

On February 10, 2006, the Chandlers made a counter offer for $528,000.00 and included the following handwritten language related to the deposit and obligations in the event the sale failed:

| .¿The deposit shall be non-refundable after all inspections by purchaser and approval for a loan, appraisal completed. If the sale falls through after March 6, 2006, the deposit shall be given to sellers.

The Chandlers’ realtor, Mr. Dwaine Sutton of Coldwell Banker, testified that he wrote this language contained in the counter offer.

In April of 2006, Mr. Chandler terminated his recently acquired employment as the Chief Financial Officer at the Glen-wood Regional Medical Center. He then notified the Worleys that he would not be purchasing the home. The Worleys subsequently filed this suit seeking specific performance. The Chandlers filed a counterclaim seeking the return of their deposit.

On July 3, 2008, the trial court rendered a judgment in favor of the Worleys, awarding them $71,705.48 in damages. The trial court determined that the handwritten language did not “do away with” what is written before it, and that the $5,000.00 at issue was not earnest money. The Chandlers are now appealing this judgment.

LAW AND DISCUSSION

Assignments of Eiror One and Two: Validity and Modification of the Contract

The Chandlers assert three assignments of error in their appeal. In their first assignment of error, the Chandlers assert that the trial court erred in finding that the parties had a meeting of the minds and entered into a binding contract. In the second assignment of error, the Chandlers allege that the trial court erred in finding that the handwritten language in the | ¿buy/sell agreement did not modify the printed provisions relating to the deposit and obligations between the parties because the sale was not consummated.

Because the intent of the Chandlers was completely different from that of the Wor-leys, the Chandlers argue that there was no “meeting of the minds” as it relates to the handwritten language in the Residential Agreement to Purchase and Sell. Therefore, the Chandlers assert that the parties failed to enter into an enforceable contract. Since assignments of error one and two are interrelated, we will discuss these issues together.

On appeal, the reviewing court may not set aside a trial court’s findings in the absence of manifest error or unless they are clearly wrong. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Even though an appellate court may feel its own evaluations and inference are more reasonable than those made by the trial court, reasonable evaluations of credibility and reasonable inferences of fact are not disturbed on appeal where conflicting testimony exists. To reverse a trial court’s factual determinations, the appellate court must find that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. When findings are based on determinations regarding the credibility of a witness, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Hanger One MLU, Inc. v. Unopened Succession of James C. Rogers, et al., 43,120 (La.App. 2 Cir. 4/16/08), 981 So.2d 175; Green v. Nunley, 42,343 (La.App. 2 Cir. 8/15/07), 963 So.2d 486.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art.1906. A contract is formed by the consent of the parties established through offer and acceptance. La. C.C. art 1927. The four elements of a valid contract are: (1) the parties must possess the capacity to contract; (2) the parties’ mutual consent must be freely given; (3) there must be a certain object for the contract; and (4) the contract must have a lawful purpose. Provenza v. Central & Southwest Services, Inc., 34,162 (La.App. 2 Cir. 12/15/00), 775 So.2d 84. The court must find that there was a meeting of the minds of the parties to constitute consent. Hanger One MLU, Inc., supra. Consent may be vitiated by error, fraud, or duress. La. C.C. art.1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art 1949. The existence or nonexistence of a contract is a question of fact not to be disturbed unless clearly wrong. Chapman v. Ebeling, 41,710 (La.App. 2 Cir. 12/13/06), 945 So.2d 222; Crowe v. Homeplus Manufactured Housing, 38,382 (La.App. 2 Cir. 6/21/04), 877 So.2d 156. The words of a contract must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the contract involves a technical manner. La. C.C. art.2047.

|,A sum given by the buyer to the seller in connection with a contract to sell is regarded to be a deposit on account of the price, unless the parties have expressly provided otherwise. La. C.C. art. 2624. Under La. C.C. art 2624, when the parties’ intention is that a sum of money be given as earnest, they must clearly express that intention. Edco Properties v. Landry, 371 So.2d 1367 (La.App. 3d Cir.1979).

Both Mr. Sutton, the Worleys’ realtor, and Mrs. Inabnett, the Chandlers’ realtor, testified that the handwritten language in the agreement prevails over the typed language. Additionally, the Residential Agreement to Purchase and Sell states:

If any of the pre-printed portions of this agreement vary or are in conflict with any handwritten, typed (not pre-print-ed), or other conditions of the sale, the handwritten, typed (not pre-printed), or other conditions of the sale provisions will control.

Mr. Worley and Mr. Sutton testified that the Worleys accepted the counter offer containing the handwritten language with the understanding that if the sale fell through the Chandlers would forfeit their deposit and the Worleys would retain the right to sue for specific performance. To support the assertion that they had a right to sue for specific performance, the Wor-leys pointed out the portion of the Residential Agreement to Purchase and Sell that states:

In the event of default by either party, the non-defaulting party shall have all rights to demand specific performance or damages, at their option.

| fiSutton also testified that if the deposit was meant to be regarded as earnest money, then he would have addressed the money as earnest money, and not as a deposit.

Alternatively, Mr. Chandler and Mrs. Inabnett testified that the handwritten language altered the agreement to allow the Chandlers to forgo purchasing the property by forfeiting their deposit. The Chandlers argue that their intent in agreeing to the handwritten language was if the sale failed for any reason they would lose their deposit and nothing more. Additionally, Mr. Chandler testified that after the handwritten language was added, it became an earnest money contract.

The Residential Agreement to Purchase and Sell was a standard buy/sell agreement utilized by the Northeast Louisiana Realtors Association. The trial court found it to be clear and unambiguous. After reviewing the record, we must agree with the trial court that there was a “meeting of the minds” when the Chandlers entered into this binding contract to buy the property in question. Therefore, the first assignment of error is without merit.

As stated above, jurisprudence has established that when the parties’ intention is that a sum of money be given as earnest, they must clearly express that intention. Unfortunately in the instant case, there is no clear indication that the $5,000.00 was to be given as earnest money. The additional handwritten language, which would prevail over the preprinted portions of the Residential Agreement to Purchase and Sell, failed to indicate that the $5,000.00 was to be given as earnest money. Rather, the 17Residential Agreement to Purchase and Sell clearly states that the deposit shall not be considered as earnest money and this contract shall be considered a specific performance contract.

Based on the facts and evidence presented, we find that the trial court did not err in determining that the Worleys are entitled to enforce the specific remedies provided in the Purchase Agreement. Doing so in no way conflicts with the requirement that the Chandlers also lose their deposit. The second assignment of error is also without merit.

Assignment of Error Number Three: Assessment of Damages

In their third and final assignment of error, the Chandlers argue that the trial court erred in its assessment of damages. The Worleys introduced a summary of damages at trial:

A. Difference in the sale price agreed to by Defendant ($528,000) and the actual sale price obtained by Plaintiffs $25,000
B. Real Estate Broker Fees: HELP U SELL $ 3,950.00
JOHN REA REALTY $ 9,504.00
C. Electricity for the Residence $ 1,804.06
D. Natural gas usage for the Residence $ 282.00
E. Water usage for the Residence $ 360.40
F. Summer lawn and garden care $ 1,615.00
G. Outdoor pool maintenance for Residence $ 200.00
H. Sanitation Inspection performed for subsequent purchaser of Residence $ 314.00
I. Ouachita Parish health inspection $ 100.00
J. Purchase of home warranty for subsequent purchaser of Residence $ 350.00
IsK. Early rental of second home (May-Oct)
(Plus Deposit of $1,500) $12,600.00
L. Early rental of storage room $ 1,738.52
M. Attorney Fees — Mr. Steve North $ 1,387.50
—Mr. Paul Hurd (approximate) $12,500.00

The Chandlers assert that damages for the items listed above in bold print are not supported by the evidence and are clearly wrong. In regard to the broker fees of John Rea Realty, the Chandlers argue that there was no testimony that the Worleys have paid or will be required to pay the broker fees of the Chandlers’ realtor, John Rea Realty. The Chandlers also assert that there is not any evidence that the Worleys paid or would be required to pay the broker fees of their own broker, Help-U-Sell. The Chandlers also argue that there is no testimony that the Worleys lost the deposit on the rental of their second home. Finally, the Chandlers argue that there is no testimony supporting the Wor-leys’ reasoning for the early rental of a storage room when they rented another home.

The Worleys assert that the Chandlers are now erroneously contesting the expenses incurred by the Worleys for the first time and without support under law.

In the absence of an objection, the complaining party must be deemed to have waived his right to complain of the alleged impropriety on appeal. The reason therefor is that in the absence of an objection, the trial court is afforded no opportunity to prevent or correct the alleged error. La. C.C.P. art. 1635; American Manufacturers Mutual Insurance Company v. General Motors, 582 So.2d 934 (La.App. 2 Cir.1991).

|nThe Residential Agreement to Purchase and Sell contained the following language:

The defaulting party shall also be liable for the brokerage fees and all other costs and fees including reasonable attorney’s fees incurred as a result of the breach of this agreement.

In addition to the language contained within the Residential Agreement to Purchase and Sell, the Worleys presented various documents, check payments, and testimony to support their assertion of damages. More specifically, they introduced the $1,500.00 check to prove payment to the landlord for the rental of their second home. The Worleys also introduced personal checks in the amount of $1,738.52 for the early rental of a storage room. All of this evidence was admitted without objection. Based on the evidence presented, we agree with the trial court that the Worleys did confirm the damages they incurred and are entitled to damages amounting to $71,705.48. This assignment of error bears no merit.

CONCLUSION

After a thorough review of the record, we cannot say that the findings of the trial court made in favor of the Worleys were manifestly erroneous. Accordingly, we affirm the trial court’s judgment. Costs of the appeal are assessed to the Chandlers.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    Jeffrey B. SMITH, et al., Plaintiffs-Appellees, v. CITY OF RUSTON, et al., Defendants-Appellants.
    No. 44,018-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 4, 2009.

      Hurley, Marcotte, Rhodes & Hussey by Lydia M. Rhodes, Shreveport, William S. Carter, Jr., Ruston, for Appellants, City of Ruston and Dan Hollingsworth.
    Broussard, Bolton, Halcomb & Vizzier by Daniel E. Broussard, Jr., Alexandria, for Appellees.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

| plaintiffs are 35 current and former firefighters who filed this petition against the City of Ruston and its mayor for a declaratory judgment, injunctive relief, and damages grounded in wage and vacation disputes.

The parties and the trial court agreed to a bifurcation of the trial. The declaratory judgment/injunctive relief or liability phase would be tried first. In the initial phase, the trial court heard evidence of the firefighters’ work schedules and the City’s pay policies and made certain initial judgments regarding the application of Louisiana statutory law. These findings were affirmed by this court in Smith v. City of Ruston, 42,281 (La.App.2d Cir.06/20/07), 960 So.2d 1246. This court noted, however, that the trial court failed to address in the liability phase how to calculate, pursuant to La. R.S. 33:1992(A), the differential pay between the beginning firefighters and the plaintiffs who are higher ranking firefighters. The differential is a monthly minimum salary difference for ranks rather than an hourly wage difference. On remand, the trial court held that the differential pay of the plaintiffs was to be determined without “including any additional pay to plaintiffs such as longevity, state supplemental pay, EMT pay, and current year two percent longevity pay.” This judgment was designated as final under La. C.C.P. art. 1915(B). It is from this judgment that the City of Ruston has appealed.

Discussion

The issue is whether the City complied with the minimum salary requirement mandated by La. R.S. 33:1992(A). Subsection (A) of La. R.S. 33:1992 sets forth minimum salaries to be paid to each rank of firefighter. |.¿The statute directs that the higher-ranking employees’ minimum salaries are to be a specified percentage above the minimum monthly salary of a beginning fireman. Specifically, La. R.S. 33:1992(A) provides:

The minimum monthly salaries of firemen in municipalities having a population of twelve thousand or more and of all parish and fire protection district paid firemen, including salaries payable out of the avails of any special tax provided by the Constitution of Louisiana for increasing the pay of firemen, shall be in accordance with the following schedule, and such salaries shall be paid semi-monthly not later than the fifth and twentieth day of each calendar month:
(1) A fireman shall receive a minimum monthly salary of four hundred dollars per month.
(2) Engineers shall receive a minimum monthly salary of not less than ten percent above that of a fireman.
(3) Lieutenants shall receive a minimum monthly salary of not less than fifteen percent above that of a fireman.
(4) Captains shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
(5) Battalion chiefs and district chiefs shall receive a minimum monthly salary of not less than forty percent above that of a fireman.
(6) Assistant chiefs and deputy chiefs shall receive a minimum monthly salary of not less than fifty percent above that of a fireman.
(7) A mechanic or assistant mechanic, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
(8) A superintendent of fire alarm system, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than forty percent above that of a fireman.
(9) A fire alarm operator or dispatcher, or any other person doing this type of work for the fire department, shall receive a | ^minimum monthly salary of not less than twenty-five percent above that of a fireman.
(10) A fire inspector shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
(11) For the city of Shreveport only, the provisions of R.S. 33:1992(9) shall apply only to present employees of the city of Shreveport Fire Department and shall not be applicable to any person employed by the city of Shreveport Fire Department after September 1,1986.
(12)The provisions of R.S. 33:1992(A)(9) shall not be applicable to any person employed by the city of Morgan City.

Subsection (B) of La. R.S. 33:1992 also provides for annual longevity increases for those firefighters having served between three and twenty years. This increase is at a rate of two percent each year and is computed on both base and longevity pay.

Beginning firefighters were paid an entry level sum plus $150 a month EMT pay (also called education or ambulance pay) even if they had not obtained the EMT certification. The trial court initially held that the minimum monthly salary of a beginning fireman would be his or her base pay plus the $150 monthly EMT pay. This was the benchmark pay or salary for computation of the differential pay. The higher ranking fireman would get the specified percentage above this salary.

The City argues that the total pay of the higher ranking fireman, which would include state supplemental pay, longevity pay, EMT pay, and accrued longevity pay, should be calculated. If the total pay of these firemen equals or exceeds the percentage difference required by La. R.S. 33:1992(A), then there would be no increase owed.

14Plaintiffs emphasize that the statute addresses minimum monthly salaries of firemen, not maximum salaries. If the City’s position were to be adopted, a fireman who has worked several years and receives supplemental pay, longevity, etc. and is promoted to driver might receive no increase in pay. The City’s interpretation would entail use of the accrued longevity and supplemental pay as the 10% differential. Plaintiffs emphasize that historically in calculating and paying the differential, the City has used the base pay of a beginning firefighter and has paid such a driver the 10% differential as set forth in the statute.

Although both parties cited cases in support of their respective positions, as noted by the trial court in its written reasons for judgment, “[ajlthough other cases indirectly address the pay differential issue, there is no specific directive on how the differential should be calculated.” See Alamond v. City of Shreveport, 39,514 (La.App.2d Cir.04/06/05), 900 So.2d 277 (court affirmed summary judgment against city, finding that differential to be paid to dispatchers was to be paid in relation to the base pay of an entry-level firefighter); Turner v. City of Shreveport, 437 So.2d 961 (La.App. 2d Cir.1983) (court, citing Williams, infra, reaffirmed that base pay for purposes of calculating longevity pay is the actual pay received by a firefighter); Williams v. City of West Monroe, 403 So.2d 842 (La.App. 2d Cir.1981) (court held that city pay, state pay, and accrued longevity are to be taken into account in calculating longevity pay pursuant to La. R.S. 33:1992(B)); Bailey v. City of Lafayette, 05-29 (La.App. 3d Cir.06/01/05), 904 So.2d 922, writ denied, 05-1690 (La.01/09/06), 918 So.2d 1054 | s(court found that a city ordinance reducing the base pay of firefighters proportionate to their receipt of state supplemental pay violated La. R.S. 33:1992); Hayes v. City of Alexandria, 629 So.2d 435 (La.App. 3d Cir.1993) (court held that state supplemental pay for fire and police personnel could not be used as a substitute for a portion of an employee’s base pay); Haskin v. City of Lafayette, 613 So.2d 1015 (La.App. 3d Cir.1993) (court found that the city complied with statutory pay differentials by basing differentials on the base salary of entry level firemen); Achord v. City of Baton Rouge, 489 So.2d 1373 (La.App. 1st Cir.1986), writ denied, 493 So.2d 641 (La.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987) (court found that dispatchers were entitled to a differential of 25% greater than that of a fireman at a corresponding step level); Hemphill v. City of Bogalusa, 417 So.2d 462 (La.App. 1st Cir.1982) (court held that firedrivers were entitled to a salary of 15% above that of the minimum salary actually paid to the highest paid firefighter — this case is unique in that it involved interpretation of a labor contract provision).

As noted by this court in Turner, 437 So.2d at 963-4:

The paramount consideration in a case involving statutory interpretation is ascertainment of the legislative intent and reason or reasons which prompted the legislature to enact the law. Courts construe a statute to accomplish the purpose for which it was enacted and to give effect to the legislative will therein expressed. Tennessee Gas Transmission Co. v. Violet Trapping Co., 248 La. 49, 176 So.2d 425 (1965); Board of Trustees of Finance Authority v. All Taxpayers, 336 So.2d 306 (La.App. 1st Cir.1976). The legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same 1 (isubject. The meaning and intent of a statutory provision, therefore, is to be determined by a consideration of the statute in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the legislature in enacting it. St. Martin Police Jury v. Iberville Parish Police Jury, 212 La. 886, 33 So.2d 671 (1947); Legros v. Conner, 212 So.2d 177 (La.App. 3d Cir.1968).

Recently, in Johnson v. Marrero-Estelle Volunteer Fire Company No. 1, 04-2124 (La.04/12/05), 898 So.2d 351, 354, the Louisiana Supreme Court reiterated principles set forth in New Orleans Firefighters Association v. Civil Service Commission of City of New Orleans, 422 So.2d 402, 412 (La.1982):

The provisions of La. R.S. 33:1991, et seq. are “remedial and humanitarian in purpose and must not be interpreted narrowly.” We described the “motive and purpose” behind these laws was “plainly to make effective [the legislature’s] conception of public policy that substandard labor conditions in city, parish and other local fire departments should be eliminated as being injurious to the safety and welfare of the public as well as detrimental to the health, efficiency and morale of firefighters.”

In Turner, supra at 965, after an extensive analysis and discussion of the legislative history of La. R.S. 33:1992, this court concluded that the purpose of the entire section, including the “additional salary” or longevity pay clause set forth in (B), was to assure that firefighters received stipulated minimum salaries. The establishment of minimum wage standards, working conditions and benefits for firefighters is not left to the discretion of each individual municipality, but is within the plenary power of the legislature under the Louisiana Constitution. Aguillard, 966 So.2d at 726.

The trial court held, and we agree, that the City’s proposed method of calculation would, in many instances, eliminate or make meaningless the 17differential schedule set forth in La. R.S. 33:1992. As noted by the trial court, “[t]his stepping stone tier of pay was obviously intended by the legislature in the enactment of this statute to reward the fireman who obtained a higher rank.” Therefore, we uphold the trial court’s ruling, finding that additional pay (EMT pay, state supplemental pay, longevity, and accrued longevity pay) is not relevant to the calculation of the minimum monthly salaries of the different ranks of firefighter as set forth in La. R.S. 33:1992(A), which is to be based upon the actual minimum monthly salary (or starting base pay) of a fireman.

Conclusion

For the reasons set forth above, the trial court’s judgment is AFFIRMED. Costs in the amount of $120.50 are to be paid by defendants-appellants, the City of Ruston and Mayor Dan Hollingsworth, in accordance with La. R.S. 13:5112.

      . Not all plaintiffs made wage claims under La. R.S. 33:1992(A).

        . See also Aguillard v. City of Lake Charles, 07-189 (La.App. 3d Cir.09/26/07), 966 So.2d 722, writ denied, 07-2107 (La.03/07/08), 977 So.2d 907.