author: CARAWAY, J.

text:
    SILVER DOLLAR LIQUOR, INC., Plaintiff-Appellee v. RED RIVER PARISH POLICE JURY, Defendant-Appellant.
    No. 45,637-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 17, 2010.

      Julie C. Jones, District Attorney, J. Chris Guillet, Assistant District Attorney, for Appellant.
    Bethard & Bethard, L.L.P., Coushatta, LA, by Robert E. Bethard, Jeffrey H. Thomas, for Appellee.
    Before WILLIAMS, GASKINS, CARAWAY, PEATROSS and LOLLEY, JJ.
   CARAWAY, J.

|,The owner of a liquor store seeks in this action a judgment declaring a local police jury ordinance invalid. Enacted in 1975, the ordinance requires the Sunday closure of establishments which sell liquor in the district within the parish where plaintiffs business is located. Plaintiff asserts that a 1986 statute requires all Sunday closing laws to be enacted by a special vote of the electorate. After the trial court invalidated the local ordinance, the police jury appealed. From our review of the regulatory power of political subdivisions over the sale of alcoholic beverages in their jurisdictions and the history of Sunday closing law in the state, we reverse.

Facts

Silver Dollar Liquor (“Silver Dollar”) is a liquor store located in District 6 of Red River Parish outside of any municipality. Section 3-18 of the Red River Parish Code reads as follows in pertinent part:

Sec. 3-18. Closing hours.
No person holding a retail dealer’s permit and no servant, agent or employee of the permittee, shall sell or serve any beverage of a low alcoholic content or of a high alcoholic content or any malt beverage as defined herein between the hours of 12:00 midnight and 6:00 a.m. or between the days of Saturday at 12:00 midnight and Monday at 6:00 a.m. (Ord. No. 61 § 145-27-75).

This Sunday closing law ordinance has application in District 6.

On August 18, 2009, Silver Dollar instituted suit for declaratory judgment against the Red River Police Jury (“Police Jury”) seeking to have Sec. 3-18 declared invalid on the grounds that La. R.S. 51:191 requires a vote of the people authorizing the closing of businesses on Sunday, and no |2such election has occurred. The Police Jury answered the suit asserting that it had authority under La. R.S. 26:493 to regulate Sunday sales of alcohol.

The parties submitted the case for trial on stipulations of fact. Initially, the facts reveal that after a 1939 parish-wide election regarding prohibition, the parish was voted “dry.” This changed in 1974 with the significant ruling of the Louisiana Supreme Court in State v. Sissons, 292 So.2d 523 (La.1974). The court held that the effect of such earlier prohibition elections had been superseded by subsequent 1950 legislation requiring local option elections on a ward basis for separate areas throughout a parish. Thus, after the Sis-sons ruling, District 6 of Red River Parish was no longer “dry,” and no local option election prohibiting the sale of alcoholic beverages has occurred since that time.

Additionally, the parties stipulated the following facts:

• On May 27, 1975, the Red River Parish Police Jury adopted Ordinance Number 61 of Red River Parish'.
• Red River Parish Police jury subsequently adopted the Red River Parish Code. Section 14 of Ordinance Number 61 became Section 3-18 of the Red River Parish Code.
• Section 3-18 of the Red River Parish Code was amended on March 1, 1988.
• There has been no election since 1974 in District 6 regarding the prohibition or regulation of Sunday sales of alcoholic beverages prohibited by Ordinance 61 and Parish Code 3-18.
• Following Sissons, Red River Parish did hold elections in other districts for the purpose of regulating the sales of alcoholic beverages, including Districts One, Two, Three, Seven and Eight. Pursuant to those election results, certain ordinances were promulgated with respect to those districts.

|sThe parties’ evidence also included copies of Ordinance Number 61, Section 14, minutes of a 1988 meeting of the Red River Police Jury, and a copy of Section 3-18 as set forth in the Red River Parish Code.

On February 9, 2010, the trial court in an oral ruling held that La. R.S. 51:191 “supersedes” La. R.S. 26:493 and gave judgment in favor of the plaintiff. A signed judgment followed on February 22, 2010, invalidating Ordinance Number 61, Section 14 and Section 3-18 of the Red River Parish Code and casting the Police Jury with costs. This appeal by the Police Jury ensued.

Discussion

A police jury is a creature and subordinate political subdivision of the State and as such only possesses those powers conferred by the State’s Constitution and statutes. Rollins Environmental Services of Louisiana, Inc. v. Iberville Parish Police Jury, 371 So.2d 1127 (La.1979). Where a police jury has authority to regulate by ordinance in a particular field, the exercise of that authority is dependent upon whether the State legislature has not enacted general laws on the same subject and thereby preempted that field of regulation. Id. at 1131.

The power to regulate traffic in alcoholic beverages is vested in the State and the legislature may delegate such power to political subdivisions of the State. State v. Sissons, supra. The statute which delegates to a police jury and other political subdivisions their power to regulate alcohol is La. R.S. 26:493, which provides:

Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate but not prohibit, except [4by referendum vote as provided by Chapter 3 of this Title or by legally authorized zoning laws of municipalities, the business of wholesaling, retailing, and dealing in alcoholic beverages. No parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace. Local subdivisions, in adopting these regulatory ordinances, may provide, in addition to the ordinary penalties authorized by law for their violation, provisions which subject the permittee to having his permit suspended or revoked in the manner provided by law for the suspension or revocation of permits.

Act No. 18 of 1886 enacted what became known as Louisiana’s Sunday Law. Section 1 of the Act, which later became La. R.S. 51:191, provided in relevant part for the closure of all stores, shops, saloons, all places of public business and all plantation stores for 24 hours beginning at 12:00 on Saturday nights. Nevertheless, Sections 2 and 3 of the Act, which later became La. R.S. 51:192, exempted from the Sunday Law, news dealers, keepers of soda fountains, places of resort for recreation and health, watering places and public parks, the sale of ice, newspaper offices, printing offices, bookstores, drugstores, apothecary shops, undertaker shops, public and private markets, bakeries, dairies, livery stables, railroads, whether steam or horse, hotels, boarding houses, steamboats and other vessels, warehouses for receiving and forwarding freights, restaurants, telegraph offices and theaters, or any place of amusement, providing no intoxicating liquors are sold in the premises. See City of Bogalusa v. Blanchard, 141 La. 33, 74 So. 588 (1917). Eventually, the entire Sunday Law was found in La. R.S. 51:191-195.

| ^Apparently due to the lack of specificity in the Sunday Law provisions, La. R.S. 51:194 was enacted in 1962 and particularly prohibited Sunday sales of “clothing or wearing apparel; lumber or building supply materials; furniture; home or business of office furnishings; any household, office or business appliances; new or used automobiles and trucks or parts for and servicing of such motor vehicles in all places of business wherein such motor vehicles are sold.”

In addition to the statewide Sunday Law, some local political subdivisions adopted Sunday closing laws pertaining to alcoholic beverage sales pursuant to La. R.S. 26:493. In 1972, in the case of City of Shreveport v. Belk, 260 La. 1041, 258 So.2d 79 (1972), the court considered whether conflict existed between the regulatory authority given to local political subdivisions under La. R.S. 26:493 and the statewide Sunday Law of Title 51. Belk was charged with selling beer on Sunday, in violation of a Shreveport city ordinance which prohibited the sale of all alcoholic beverages on Sunday. Because the court had previously held in State v. Guimbellot, 232 La. 1043, 95 So.2d 650 (1957), that the Louisiana Sunday Law did not prohibit the Sunday sale of beer in places which were otherwise exempted from the Sunday Law, Belk argued that the Shreveport ordinance created an unconstitutional conflict with state law. The court rejected that contention and upheld Shreveport’s total Sunday ban with the rationale that La. R.S. 26:493 was a “specific grant of legislative authority” that was “in addition to any authority which the city may have to provide for a day of | firest.” The court determined that the Shreveport ordinance “reasonably regulates the sale of alcoholic beverages,” and the Sunday closing created by the ordinance was thus not inconsistent or in conflict with the general Sunday Law.

After Belk, La. R.S. 51:195 was added in 1976 and authorized “the governing authority of each parish and municipality” to exempt from the statewide Sunday closing laws businesses dispensing alcoholic beverages at retail. Thus, the authority extended to the local political subdivisions regarding alcohol regulation was clearly intended by the legislature to operate independent of the statewide Sunday Law, and a local ordinance could allow or prohibit the sale of alcoholic beverages in a manner different from that law.

In 1986, a major change occurred to Louisiana’s Sunday Law with the enactment of 1986 La. Acts 1, § 1. Except for the motor vehicle dealer business (new La. R.S. 51:193), the statewide Sunday closing provisions for businesses previously affected by the law were repealed. For example, the businesses expressly prohibited from Sunday sales under La. R.S. 51:194 were freed by the repeal of that statute to conduct business. The former La. R.S. 51:192 was repealed, and the completely new Section 192 deals with lease agreements requiring tenants to operate a business on Sunday.

With this 1986 decision to repeal the longstanding statewide Sunday Law, the legislature gave the following grant of local authority to parish and municipal governments regarding Sunday closings:

Sunday closing law; local ordinances; election
17Except as provided in R.S. 51:193, the governing authority of any parish or municipality may adopt ordinances regulating or prohibiting the opening of certain businesses and/or the sale of certain stock or articles of merchandise on Sunday, if approved by the voters at an election called as provided in Chapter 6-B of Title 18 of the Louisiana Revised Statutes of 1950.

La. R.S. 51:191. It is this statute which Silver Dollar Liquor now asserts as an impediment to the Police Jury’s continued enforcement of its 1975 ordinance prohibiting Sunday sales of alcohol in District 6.

From the above review of the history of the Sunday Law and the Belk ruling, the question presented is one of statutory interpretation and the effect of the significant legislative action of 1986. Did the legislature intend to modify a police jury’s authority under La. R.S. 26:493 to regulate the sale of alcohol by the use of Sunday closing ordinances so that a vote of the people through an election is now required? That question, however, is somewhat broader than the particular issue at hand under the facts of this case. More precisely, in this case, even assuming that the election required under the new La. R.S. 51:191 limits a police jury’s power to enact such ordinances, did the new legislation operate to repeal in 1986 all existing local ordinances which prohibited the Sunday sales of alcohol as sanctioned by the Belk ruling? From our review of the law regarding the implied repeal of existing law, we find that the Police Jury’s 1975 ordinance was unaffected by the 1986 legislation and the enactment of La. R.S. 51:191.

Louisiana Civil Code Article 8 addresses the repeal of our laws, as follows:

Laws are repealed, either entirely or partially, by other laws.
|SA repeal may be express or implied. It is express when it is literally declared by a subsequent law. It is implied when the new law contains provisions that are contrary to, or irreconcilable with, those of the former law.
The repeal of a repealing law does not revive the first law.

It is well settled in the jurisprudence that repeals by implication are not favored and that a repeal by implication will be found only when there is an irreconcilable conflict between two statutes (or constitutional provisions) and where there exists no possible construction that could give both provisions effect. City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 05-2548 (La.10/1/07), 986 So.2d 1; Jordan v. Louisiana Gaming Control Board, 98-1122, 98-1133, 98-1134 (La.5/15/98), 712 So.2d 74; State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601 (1937).

A statute must be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intent of the Legislature in enacting it. The text of the law is the best evidence of legislative intent. Black v. St. Tammany Parish Hosp., 08-2670 (La.11/6/09), 25 So.3d 711. Where two statutes deal with the same subject matter, they should be harmonized if possible, as it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws. Black v. St. Tammany Parish Hosp., supra; Kennedy v. Kennedy, 96-0732 (La.9/9/97), 699 So.2d 351.

The repeal of laws addressed in Article 8 of the Civil Code concerns a new law’s effect on an existing law. The Police Jury’s Ordinance No. 61 was an existing law in 1986 by virtue of the delegated legislative authority given by the legislature to political subdivisions. The new law, La. R.S. |fl51:191, did not expressly repeal any Sunday closing law of the various police juries and municipalities which may have been imposed as a regulation of alcohol in their jurisdictions around the state. Therefore, under Article 8, if the provisions of the new 1986 statute “are contrary to, or irreconcilable with” the existing Sunday closing laws of Red River Parish and other political subdivisions, Ordinance No. 61 was impliedly repealed. In our opinion, however, we do not find such irreconcilable conflict.

The importance of the Belle ruling and the later enactment in 1976 of the former La. R.S. 51:195 is that the regulatory authority of the political subdivision over alcohol within its jurisdiction operates in an independent realm under La. R.S. 26:493 regardless of what the legislature might choose regarding Sunday laws for statewide businesses in general and even those businesses selling alcohol. When the legislature removed itself from the regulation of Sunday business enterprise in 1986 without drawing back the Police Jury’s authority under La. R.S. 26:493 for Sunday closing laws for alcohol, the Police Jury’s ordinance retained its independent force regardless of the changes to Title 51. Moreover, there is no indication in the jurisprudence that prior to 1986 political subdivisions had ever chosen to regulate businesses through Sunday closing laws other than those businesses selling alcohol. Instead, the statewide Sunday Law of Title 51 |inhad prevailed. Thus, the new La. R.S. 51:191 may only reflect the legislative intent that prospective local regulation of Sunday sales for an ordinary business not involved with the sale of alcohol requires the approval of the majority of the electorate.

Specifically, the new directives of La. R.S. 51:191 establish a procedure for the enactment of Sunday closing laws by political subdivisions for business commerce in general. The appropriate process for the enactment of Ordinance No. 61 had already occurred before 1986. The new procedure requires an election to be called by a police jury or municipality to enact a Sunday closing law. This new statute therefore did not substantively end regulation of the Sunday operations of any business in Red River Parish, but simply extended a new procedure to the Police Jury for its determination and the determination of the electorate to prospectively regulate business commerce. The new procedure is therefore not irreconcilable with the existing Sunday closing law of the parish as embodied in Ordinance No. 61, and the implied repeal of existing law being unfavored, we find that no repeal of the ordinance resulted from the 1986 legislation.

Conclusion

For the foregoing reasons, the ruling of the trial court is reversed. Costs of appeal are assessed to appellee.

REVERSED.

      . A 1983 amendment made each category of La. R.S. 51:192 a separate paragraph, combined certain of the categories and designated subsections A, B and C.

      . La. R.S. 51:193 was enacted in 1918 and regulated the closing of barber shops.

      . Before its redesignation as La. R.S. 26:493 by 1987 La. Acts 696, § 1, the statute as listed in the Belk ruling was La. R.S. 26:494.

      . In reaching this conclusion, we find that La. R.S. 26:493 is the specific statute addressing alcohol with its societal risks requiring "the protection of the public health, morals, safety, and peace" by a political subdivision. The ordinary commerce of other businesses without such risks is the general subject matter of La. R.S. 51:191. Thus, we reject the rationale and holding of the two rulings of the Third Circuit Court of Appeal for this controversy. See, City of Zwolle v. Polk, 93-1102 (La.App. 3d Cir.9/14/94), 643 So.2d 201, writ denied, 94-2553 (La.1/13/95), 648 So.2d 1339 and Pappy’s Investment Group of Lake Charles, Inc. v. City of Lake Charles, 96-411 (La.App. 3d Cir.7/24/96), 677 So.2d 1145, writ denied, 96-2156 (La.9/13/96), 679 So.2d 112.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    BOSSIER PARISH POLICE JURY, Respondent v. WALTON CONSTRUCTION CO., LLC-SOUTHERN, Bernhard Mechanical Contractors, Inc., et al., Applicants.
    No. 45,586-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 17, 2010.

      The Hayter Law Firm, LLC, Shreveport, LA by John 0. Hayter, III, for Applicant Security Design, Inc., d/b/a EO Integrated Systems.
    Craig L. Raster & Assoc, by Craig L. Raster, for Respondents Bernhard Mechanical Contractors, Inc., and Securtec, Inc.
    Cook, Yancey, King & Galloway, Shreveport, LA by Kenneth Mascagni, for Respondent Bossier Parish Police Jury.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

h Security Design Inc., d/b/a EO Integrated Systems (“EOI”), contests the denial of its dilatory exception of prematurity which asserted the arbitration clause in its subcontract with Securtec Inc. For the reasons expressed, we grant the writ and make it peremptory, sustain the exception of prematurity, and remand the case with instructions.

Procedural Background

In late 2003 the Bossier Parish Police Jury began a large project, initially $23.4 million, to renovate and expand the Bossier Parish Courthouse in Benton. The general contract was awarded to Walton Construction Co., which retained four subcontractors for various aspects of the project. One of the subcontractors was Sec-urtec Inc., which was to install a security system. Securtec sub-subcontracted with EOI to install security, card access and related systems for a contract price of $291,200.

As work progressed, the police jury approved numerous change orders and extensions, raising the general contract to $24.6 million, but the architect began reporting that some of the work did not meet specifications and much of it was substandard. The police jury stopped making progress payments in August 2007 and, by early 2008, subcontractor liens of nearly $1 million had been filed against the project.

The police jury filed suit in June 2008 against the general contractor, Walton, and the four subcontractors, including Sec-urtec. Alleging that much of the work was incorrect or incomplete and attaching a 30-page punch list of “Incomplete or Unacceptable Items” totaling $1.5 million, the police jury demanded a declaratory judgment setting out the parties’ 12respective rights, especially the police jury’s right to deductions from or reductions in the contract sum. As to Securtec, the police jury alleged that card access on the main entrance has never worked, numerous cards have been “dropped” from the database and cannot be reinstated, warranty service was not provided timely; Securtec’s labor and materials failed to comply with specifications; and attempts to remedy the defective work and materials had been unsuccessful.

A multiplicity of incidental actions ensued. The one giving rise to this writ application was Securtec’s November 2009 third party claim against EOI. Securtec alleged that “to the extent * * * that the security system failed to comply with the plans and specifications for the project then the responsibility for such failure lies with” EOI, and that EOI was liable for damages, costs of repair and failure of warranty. It further alleged that under ¶ 9 of the subcontract between itself and EOI, EOI was “obligated to indemnify Securtec for any and all damages[.]”

EOI responded with the dilatory exception of prematurity. It cited ¶ 12 of the subcontract, which provided in part:

Any controversy or claim between Sec-urtec, Inc. and the Subcontractor [EOI] arising out of or related to this Subcontract, or the breach thereof, shall be settled by arbitration, which shall be conducted in the same manner and under the same procedure as provided in the Agreement between the General Contractor and Securtec[.]

EOI argued that Louisiana law favors arbitration, La. R.S. 9:4201; ¶ 12 is a clear election of arbitration between the parties; and litigation is premature until the matter is resolved by arbitration. Wied v. TRCM, LLC, 30,106 (La.App. 2 Cir. 7/24/97), 698 So.2d 685.

IsSecurtec opposed the exception, urging that the claim is not really between itself and EOI, but between the police jury and Securtec; EOI’s liability was for indemnity only. Further, because the third party claim against EOI “is so inextricably intertwined with the facts of the original demand brought by the parish, the object of a speedy resolution will not be served by enforcing the arbitration agreement in this instance.” Citing Preston v. Ferrer, 552 U.S. 346, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008), and Buckeye Check Cashing Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), Securtec argued that an arbitration clause is severable from the rest of the contract. In the alternative, Securtec requested that the court only stay its third party claim, under R.S. 9:4202, rather than dismiss it.

The district court found that Securtec was merely seeking indemnification from EOI if it is found liable on the merits. “At this point in time there is no determination of liability as it relates to Securtec, and a person could only speculate whether or not Securtec would ever be liable to any other party in this proceeding.” Apparently finding no arbitrable issue, the court denied the exception. EOI took a writ which this court granted to docket.

Discussion

The positive law of Louisiana favors arbitration, and any doubt concerning the scope of arbitrable issues is resolved in favor of arbitration. Aguillard v. Auction Management Corp., 2004-2804 (La.6/29/05), 908 So.2d 1; Long v. Jeb Breithaupt Design Build, 44,002 (La.App. 2 Cir. 2/25/09), 4 So.3d 930. Specifically, La. R.S. 9:4201 provides:

|4A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Louisiana’s favorable treatment of arbitration echoes the Federal Arbitration Act, 9 U.S.C. § 1, et seq., which embodies a liberal federal policy favoring arbitration agreements. Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985); Aguillard v. Auction Management Corp., supra. Any doubt concerning the scope of arbitrable issues must be resolved in favor of arbitration. Aguillard v. Auction Management Corp., supra; Arkel Constructors Inc. v. Duplantier & Meric, Architects, 2006-1950 (La.App. 1 Cir. 7/25/07), 965 So.2d 455.

One of the primary reasons for the existence of arbitration agreements is to achieve streamlined proceedings and expeditious results. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985); FIA Card Services v. Gibson, 43,131 (La.App. 2 Cir. 3/19/08), 978 So.2d 1230. However, it is of no moment that an arbitrable claim may be “intertwined” with other claims; an arbitrable claim must be referred to arbitration, “even where the result would be possibly inefficient maintenance of separate proceedings in different forums.” Dean Witter Reynolds v. Byrd, supra; Shroyer v. Foster, 2001-0385 (La.App. 1 Cir. 3/28/02), 814 So.2d 83.

The mere recitation of the applicable law exposes the error in Securtec’s argument and in the district court’s analysis. The fact that the | sthird party claim might be “inextricably intertwined” with the facts of the original demand, and hence might be speculative, does not negate the arbitration clause of ¶ 12. Dean Witter Reynolds v. Byrd, supra; Shroyer v. Foster, supra. The court’s finding is legally erroneous and will be reversed.

EOI also argues that the district court erred in addressing only the portion of Securtee’s third party claim that sought indemnification, based on ¶ 9 of the subcontract dealing with personal injury indemnity, a provision with no apparent bearing on this action. Securtec’s claim, however, also included demands for breach of duty and breach of contract. Any question as to the scope of arbitrable issues must be resolved in favor of arbitration. Aguillard v. Auction Management Corp., supra; Arkel Constructors Inc. v. Duplantier & Meric, Architects, supra. The court was factually and legally in error to overlook these parts of the claim.

Finally, Securtec argues that given the posture of the case, this court should sever and strike the arbitration clause. In support, it cites Preston v. Ferrer, supra, and Buckeye Check Cashing v. Cardegna, supra. It also shows that ¶ 12 refers disputes between itself and EOI to arbitration “in the same manner and under the same procedure as provided in the Agreement between the General Contractor and Securtec,” and that the latter agreement contains no provision for arbitration. It concludes that because of this “confusion,” It 12 may be disregarded. We find this unpersuasive, noting that both the cited cases ultimately referred the disputes to arbitration, even though the arbitration clause may have been severable from the whole contract. (In Preston v. Ferrer, supra at fn. 4, the discussion of severability | fiappears limited to the particular contract in question.) Given the strong presumption in favor of arbitration, this court would be inclined to sever that portion of ¶ 12 referring to a nonexistent arbitration agreement between Securtec and Walton, not the portion that clearly elects arbitration between EOI and Sec-urtec. This argument lacks merit. The judgment denying the exception of prematurity and refusing to refer the claim to arbitration is vacated. The exception is sustained and the matter remanded to the district court for referral to arbitration.

Conclusion

For the reasons expressed, we grant the •writ and make it peremptory, sustain the exception of prematurity, and remand the case for further proceedings consistent with this opinion. All costs are to be paid by the respondent, Securtec.

WRIT GRANTED AND MADE PEREMPTORY; EXCEPTION OF PREMATURITY SUSTAINED; CASE REMANDED WITH INSTRUCTIONS.


author: GASKINS, J.

text:
    Sharon ANDERSON and Carl Anderson, et al., Plaintiffs-Appellants v. BOSSIER PARISH POLICE JURY, et al., Defendants-Appellees. James Bruce Waggoner and Colleen Waggoner, et al., Plaintiffs-Appellants v. Bossier Parish Police Jury, et al., Defendants-Appellees.
    Nos. 45,639-CA, 45,829-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      Smith Law Office, L.L.C., Bossier City, LA by: Eskridge Elgin Smith, Linda Lea Smith, for Plaintiffs-Appellants.
    Carleton, Dunlap, Olinde, Moore & Boh-man, L.L.C, Baton Rouge, LA by: John B. Dunlap, III, for Defendants-Appellees.
    Before BROWN, GASKINS and LOLLEY, JJ.
   GASKINS, J.

l2The plaintiffs in these consolidated cases appeal trial court judgments holding that their claims against the defendants, the Bossier Parish Police Jury, the Office of Bossier Parish Engineer, and Joseph “Butch” Ford, Jr., in his capacity as Bossier Parish Engineer, have prescribed. For the following reasons, we reverse the trial court judgments and remand to the trial court for further proceedings.

FACTS

The plaintiffs in docket number 45,639 are residents of Pecan Grove, a manufactured housing subdivision. The plaintiffs in docket number 45,829 are residents of Shadow Ridge Estates, a housing subdivision. Both subdivisions are located in Bossier Parish close to|aRed Chute Bayou. These cases arise from the enactment by the Bossier Parish Police Jury of an ordinance which became effective on September 3, 2008, adopting recommendations by the Federal Emergency Management Agency (“FEMA”) and placing portions of the plaintiffs’ property in the floodway of Red Chute Bayou rather than in the flood zone as they were previously classified. In a flood zone, the foundations of buildings must be placed a certain distance above the base flood elevation. However, because the property is now classified as being in the floodway, encroachments are prohibited, including fill, new construction, substantial improvements, and other developments unless the owners obtain a costly “No Rise” certifícate from the parish stating that the proposed work on the property will not result in any increase in the flood levels within the community during the occurrence of the base flood discharge. The plaintiffs in both suits filed their claims in the trial court on August 28, 2009, within one year of the passage of the Bossier Parish ordinance, alleging that they did not receive proper notice of the change in classification affecting their property and that they have suffered damages as a result of the reclassification of their property.

The Pecan Grove plaintiffs’ suit was filed individually and on behalf of a class of similarly situated persons. They alleged that Bossier ^Parish commissioned a study in 2000 by the engineering firm of Owen & White, Inc. to comply with a FEMA request for redrawing or remapping of flood zones and floodways, in order to meet FEMA regulations regarding the purchase by landowners of flood insurance through the National Flood Insurance Program (“NFIP”). In March 2004, FEMA gave the Flood Insurance Study (“FIS”) and the Flood Insurance Rate Map (“FIRM”) to the Bossier Parish engineer. In May 2004, the parish engineer presented the documents to the Bossier Parish Police Jury. Revised copies of the FIS and FIRM were provided by FEMA to the Bossier Parish Police Jury in March 2006.

FEMA placed notices of the proposed changes in the base flood elevation affecting areas including Red Chute Bayou in the Bossier Press Tribune on April 28, 2006, and May 5, 2006. FEMA provided information to the Bossier Parish Police Jury that a 90-day appeal period was in effect after the second publication in which any owner or lessee of property in the community who believed his or her property rights would be adversely affected by the base flood elevation determinations could appeal to the Bossier Parish Police Jury. No appeals were taken.

As required by federal regulations in order to qualify for flood insurance, the Bossier Parish Police Jury enacted ordinance number 4241(A) which became effective on September 3, 2008, adopting the FIS |5and FIRM submitted by FEMA. The effect of the ordinance was to place the Pecan Grove and Shadow Ridge Estates in the floodway instead of the flood zone. The Pecan Grove plaintiffs filed suit on August 28, 2009, claiming that they were deprived of their due process rights because they were not given proper notice of the FIS or FIRM and were not informed of the 90-day period to appeal the adoption of the FIRM in 2006. They sought damages for the taking of their property without just compensation, diminution in value of the property, increase in the cost of flood insurance, if available, expenses of moving manufactured homes, loss of the value of improvements, loss of mortgage loans, increase in interest rates, loss of insurable value of property, loss of use and/or enjoyment of property and general damages including mental and emotional distress, embarrassment and humiliation.

The Shadow Ridge plaintiffs also filed suit on August 28, 2009, for damages and for certification as a class action, essentially pleading the same facts as the Pecan Grove plaintiffs. Additionally, they alleged that in July 1998, James Bruce Wag-goner and Colleen Waggoner bought a lot in Shadow Ridge, built a house, and have lived there since that time. In October 2004, the Waggoners purchased additional lots with the intention | fiof developing the subdivision. Beforehand, in May 2004, Mr. Waggoner inquired of the parish engineer, Mr. Ford, regarding the requirements for developing the lots. He was not given any information about the new FIS report, the proposed FIRM, or the changes that would occur with the adoption of the FIRM. Mr. Waggoner began selling lots in December 2004. Permits were issued and new construction and improvements were made until the adoption of the ordinance which became effective September 3, 2008.

The Shadow Ridge plaintiffs claimed that the FEMA announcement published in the Bossier Press Tribune did not provide notice of the change in the status of the property being placed in the floodway. They alleged that after the passage of the ordinance, it had been shown that some or all of Shadow Ridge is above the base flood elevation for the 100-year flood and should not have been included in the floodway.

The Shadow Ridge plaintiffs also alleged that they were deprived of their due process rights under the United States and Louisiana constitutions in that they did not receive due process and proper notification of the proposed change in the status of the property and they did not have the proper opportunities to appeal the proposed change. 17Further, they claimed that the defendants negligently failed to determine whether Shadow Ridge and/or any and all parts thereof should actually be placed in the floodway by failing to make a proper investigation by survey, field study, or other means. They sought damages for the taking of their property without just compensation, diminution in value of the property, increase in the cost of flood insurance, if available, loss of mortgage loans, increase in interest rates, loss of insurable value of property, loss of use and/or enjoyment of property and general damages including mental and emotional distress, embarrassment and humiliation.

In both cases, the defendants filed exceptions of prescription and no cause of action. They claimed that notice of the proposed flood maps and the 90-day appeal period was published in the Bossier Press Tribune on April 28, 2006 and May 5, 2006, and that these publications provided notice that the base flood elevations around Red Chute Bayou may be modified and designated a flood zone. According to the defendants, the one-year prescriptive period for filing these tort suits began to run on May 5, 2006, after the publication of the second notice by FEMA. These suits were filed on August 28, 2009; the defendants claim they are barred by prescription.

lsThe plaintiffs in both suits argued that notice of the changes in classification of their property was received on September 3, 2008, when the Bossier Parish Police Jury passed the ordinance adopting the FIRM. They claimed that the publication of the notices in the Bossier Press Tribune did not give them actual or constructive notice of the change in the classification of their property to a floodway.

The Pecan Grove case was assigned to a judge of the Twenty-Sixth Judicial District Court. The exceptions were submitted on briefs. On February 4, 2010, the trial court issued a judgment granting the exception of prescription and dismissing the claims of the Pecan Grove plaintiffs. In written reasons for judgment, the trial court stated that constructive notice was received by the plaintiffs on the date of the second publication by FEMA in the Bossier Press Tribune and that the appeal process began to run after that. The court found that the matter had prescribed; the exception of prescription filed on behalf of the defendants was granted. Because the trial court granted the exception of prescription, it found that there was no need to address the exception of no cause of action.

The Shadow Ridge case was assigned to a different judge of the Twenty-Sixth Judicial District Court. A hearing on the exceptions of prescription and no cause of action was heard in that matter on February |922, 2010. The defendants argued that the FEMA notice in the Bossier Press Tribune referenced the base flood elevation around Red Chute Bayou and said that the areas might be redesignated as a flood zone. The defendants urged that there was no requirement that the property owners be given individual notice. They maintained that the plaintiffs received constructive notice on May 5, 2006, the date of publication of the second FEMA notice, and that the one-year prescriptive period began to run from that date.

The plaintiffs asserted that the FEMA notice in the newspaper concerned insurance rights and not the loss of legal rights. They pointed out that there was no mention of the propei'ty being placed in the floodway in the notices. The notice spoke only of the flood zones and base flood elevations. They contended that they did not have a right to sue until the passage of the ordinance by Bossier Parish Police Jury adopting the FEMA recommendations.

The plaintiffs further argued that the doctrine of contra non valentem applied and negated any kind of constructive notice. They cited the conversation that Mr. Waggoner had with Mr. Ford after the FEMA maps were under consideration by the parish, but before the ordinance was passed. At that time, no mention was made of the fact that Shadow |inRidge would be designated in the floodway. The plaintiffs maintained that they could not have known that their property was affected until after the passage of the ordinance.

At the hearing on the Shadow Ridge exceptions of prescription and no cause of action, a discussion was held about procedures used in passing the new Bossier Parish ordinance adopting the FEMA recommendations. It appears that a public hearing was held on August 20, 2008, to consider adoption of the ordinance incorporating the changes regarding the new FEMA flood maps for Bossier Parish. The ordinance adopting the FEMA regulations was passed and became effective on September 3, 2008.

On March 23, 2010, the trial court in the Shadow Ridge case signed a judgment granting the defendants’ exception of prescription. The trial court’s reasons for judgment are essentially identical to those handed down by the trial court in the Pecan Grove case. The plaintiffs in both cases appealed. On August 5, 2010, this court granted a motion to consolidate the two cases on appeal.

On appeal, the plaintiffs argue that the trial court erred in granting the exceptions of prescription. They contend that the trial court erroneously found that the prescriptive period began to run from the Insecond notice contained in the FEMA publication rather than from the date the Bossier Parish ordinance took effect. The plaintiffs urge that the FEMA publication did not serve as adequate notice of a re-designation of their property being in a floodway. The plaintiffs also contend that a taking of their property occurred by virtue of the change in the classification of their land, and therefore, the prescriptive period of three years under La. R.S. 13:5111 is applicable. The plaintiffs maintain that the doctrines of contra non va- lentern and continuing tort apply in this matter to stop the running of prescription.

POINT AT WHICH PRESCRIPTION COMMENCED TO RUN

The plaintiffs argue that the trial court erred in concluding that the FEMA newspaper publication provided constructive notice of a change in the classification of their property and that the plaintiffs’ actions against the defendants prescribed in May 2007, one year after the publication of the last FEMA notice on May 5, 2006. They claim that floodway status was never mentioned in the publications and that the notice does not set forth in adequate detail the parts of Bossier Parish affected by the proposed changes sufficient to put the plaintiffs on notice that their property was included.

| ii>The plaintiffs argue that their damages arose from the Bossier Parish Police Jury’s action in passing and enforcing the Floodway Damage Prevention Ordinance number 4241, which became effective on September 3, 2008, finalizing the classification of their property as being in the flood-way. The plaintiffs urge that the effective date of the ordinance was the point at which the owners of the property became aware of and should have known of the potential claims. According to the plaintiffs, they are not complaining of any action taken by FEMA, but rather they complain of the actions taken by the Bossier Parish Police Jury in enacting ordinance number 4241 and designating their property as being in a floodway.

Legal Principles

La. C.C. art. 3492 provides that delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. When 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. La. C.C. art. 3493. The commencement of prescription under this article is triggered by actual or constructive 11Rknowledge of damage. Hogg v. Chevron USA, Inc., 2009-2632 (La.7/6/10), 45 So.3d 991.

Constructive knowledge has been defined as whatever notice is enough to excite attention and put the injured party on guard or call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry might lead, and such information or knowledge as ought to reasonably put the injured party on inquiry is sufficient to start the running of prescription. In assessing whether an injured party possessed constructive knowledge sufficient to commence the running of prescription, the court’s ultimate consideration is the reasonableness of the injured party’s action or inaction in light of the surrounding circumstances. Hogg v. Chevron USA, Inc., supra.

While prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong, and should not be used to force a person who believes he may have been damaged in some way to rush to file suit, a plaintiff is responsible to seek out those whom he believes may be responsible for a specific injury. In a case involving constructive knowledge, the time when prescription begins to run depends on the reasonableness of a plaintiffs action or inaction. Hogg v. Chevron USA, Inc., supra.

| i4Ordinarily, the party pleading the exception of prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiffs claim has prescribed, the burden shifts to the plaintiff to show why the claim has not prescribed. Hogg v. Chevron USA, Inc., supra.

Discussion

The evolution of the federal scheme for protecting landowners in flood-prone areas is outlined in Till v. Unifirst Federal Savings and Loan Association, 653 F.2d 152 (5th Cir.1981). The court in Till stated:

From 1968 to 1977, Congress passed a number of enactments which compose the National Flood Insurance Program (the “Program”). The first enactment, the National Flood Insurance Act of 1968, created a nationwide program to make flood insurance available to property owners in flood prone areas and to encourage the adoption by local communities of sound land use policies designed to diminish damage from flooding.... The procedures created by the 1968 Act were voluntary in nature. Congress anticipated that the local communities would voluntarily adopt the land use restrictions necessary for its citizens to participate in the flood insurance plan. However, it became clear that local acceptance of the voluntary program was inadequate. Accordingly, Congress enacted the Flood Disaster Protection Act of 1973 which amended the Program to essentially make its adoption by the local governing bodies mandatory.
liSThe 1973 Act used severe sanctions against non-participating communities to encourage enrollment in the Program. Any community not participating by July 1, 1975 would receive neither federal financial assistance for acquisition or construction purposes nor federally related financing by private lending institutions for use in HUD designated flood risk zones. Participation was conditioned upon adoption by the local community of the HUD promulgated guidelines for land use. Thus, a community not adopting the land use controls and participating in the Program was virtually cut off from federal assistance. [Footnotes omitted.]

The National Flood Insurance Act of 1968 was enacted to provide previously unavailable flood insurance protection to property owners in flood-prone areas. Under the program that effectuated this act, NFIP, flood insurance cannot be sold or renewed within a community unless the community has adopted adequate flood plain management regulations consistent with federal criteria. 44 C.F.R. § 60.1(a). The NFIP is administered by FEMA. When the federal government has provided data regarding the regulatory floodway to the community, the community is required to select and adopt the regulatory floodway based upon the principle that the area chosen for the floodway must be designed to carry the waters of the base flood, without increasing the water surface elevation of that flood more than one foot at any point. The community is also required to prohibit encroachments, including fill, new construction, | ^substantial improvements and other development within the adopted regulatory floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge. 44 C.F.R. § 60.3.

The authority under Louisiana law to allow parishes and municipalities to comply with the federal regulations is found in La. R.S. 38:84, which provides in pertinent part:

A. In order to secure for the citizens of the state of Louisiana the flood insurance coverage provided for by the National Flood Insurance Act of 1968, 42 USC 4001 et seq., all of the parishes and municipalities of the state may adopt such ordinances, rules, and regulations, including zoning and land use regulations, as are necessary to comply with the requirements of said Act and the regulations adopted pursuant thereto by the Federal Emergency Management Agency.

Flood elevation determinations and the FEMA notice provided in this case are governed by 42 U.S.C. § 4104, which states in pertinent part:

(b)Publication of flood elevation determinations; appeal of owner or lessee to local government; scientific or technical knowledge or information as basis for appeal; modification of proposed determinations
| i7The Director shall publish notification of flood elevation determinations in a prominent local newspaper at least twice during the ten-day period following notification to the local government. During the ninety-day period following the second publication, any owner or lessee of real property within the community who believes his property rights to be adversely affected by the Director’s proposed determination may appeal such determination to the local government. The sole basis for such appeal shall be the possession of knowledge or information indicating that the elevations being proposed by the Director with respect to an identified area having special flood hazards are scientifically or technically incorrect, and the sole relief which shall be granted under the authority of this section in the event that such appeal is sustained in accordance with subsection (e) or (f) of this section is a modification of the Director’s proposed determination accordingly.
(c) Appeals by private persons; submission of negativing or contradicting data to community; opinion of community respecting justification for appeal by community; transmission of individual appeals to Director; filing of community action with Director
Appeals by private persons shall be made to the chief executive officer of the community, or to such agency as he shall publicly designate, and shall set forth the data that tend to negate or contradict the Director’s finding in such form as the chief executive officer may specify. The community shall review and consolidate all such appeals and issue a written opinion stating whether the evidence presented is sufficient to justify an appeal on behalf of such persons by the community in its own name. Whether or not the community decides to appeal the Director’s determination, copies of individual appeals shall be | i8sent to the Director as they are received by the community, and the community’s appeal or a copy of its decision not to appeal shall be filed with the Director not later than ninety days after the date of the second newspaper publication of the Director’s notification.
(d) Administrative review of appeals by private persons; modification of proposed determinations; decision of Director: form and distribution
In the event the Director does not receive an appeal from the community within the ninety days provided, he shall consolidate and review on their own merits, in accordance with the procedures set forth in subsection (e) of this section, the appeals filed within the community by private persons and shall make such modifications of his proposed determinations as may be appropriate, taking into account the written opinion, if any, issued by the community in not supporting such appeals. The Director’s decision shall be in written form, and copies thereof shall be sent both to the chief executive officer of the community and to each individual appellant.
(e) Administrative review of appeals by community; agencies for resolution of conflicting data; availability of flood insurance pending such resolution; time for determination of Director; community adoption of local land use and control measures within reasonable time of final determination; public inspection and admissibility in evidence of reports and other administrative information Upon appeal by any community, as provided by this section, the Director shall review and take fully into account any technical or scientific data submitted by the community that tend to negate or contradict the information upon which his proposed determination is |19based. The Director shall resolve such appeal by consultation with officials of the local government involved, by administrative hearing, or by submission of the conflicting data to an independent scientific body or appropriate Federal agency for advice. Until the conflict in data is resolved, and the Director makes a final determination on the basis of his findings in the Federal Register, and so notifies the governing body of the community, flood insurance previously available within the community shall continue to be available, and no person shall be denied the right to purchase such insurance at chargeable rates. The Director shall make his determination within a reasonable time. The community shall be given a reasonable time after the Director’s final determination in which to adopt local land use and control measures consistent with the Director’s determination. The reports and other information used by the Director in making his final determination shall be made available for public inspection and shall be admissible in a court of law in the event the community seeks judicial review as provided by this section.
(g) Judicial review of final administrative determinations; venue; time for appeal; scope of review; good cause for stay of final determinations
Any appellant aggrieved by any final determination of the Director upon administrative appeal, as provided by this section, may appeal such determination to the United States district court for the district within which the community is located not more than sixty days after receipt of notice of such determination. The scope of review by the court shall be as provided by chapter 7 of Title 5. During the pendency of any such litigation, all final determinations of the Director shall |2nbe effective for the purposes of this chapter unless stayed by the court for good cause shown.

The FEMA notifications in the present case, which were required by the federal statutory scheme outlined above, appeared in the public notice section of the Bossier Press Tribune on April 28, 2006, and May 5, 2006. The notices provided in pertinent part:

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency
Proposed Base Flood Elevation Determinations for Bossier Parish, Louisiana and Incorporated Areas
AGENCY:
Federal Emergency Management Agency
ACTION:
Proposed Rule
SUMMARY: Technical information or comments are solicited on the proposed modified Base (1-percent annual chance) Flood Elevations (BFEs) shown in the preliminary Flood Insurance Studies (FISs) and Flood Insurance Rate Maps (FIRMs) for the communities listed in the table below. The BFEs are the basis for the floodplain management measures that each community is required to either adopt or show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program.
DATES: The period for comment will be ninety (90) days following the second publication of these proposed rules in a newspaper of local circulation.
ADDRESSES: (See Table Below)
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency (FEMA) gives notice of the proposed determinations of BFEs, in accordance with Section 110 of the Flood Disaster Protection Act of 1973 (pub. L.93-234), 87 Stat. 980, which added Section 1363 to the National Flood Insurance Act of 1968 (Title XIII of the Housing and Urban Development Act of 1968) (Pub.L.90-448-), 42 U.S.C. 4001-4128, and 44 CFR 67.4(a)
| ztThese elevations, together with the floodplain management measures required by Section 61.3 of the program regulations, are the minimum that are required. They should not be construed to mean the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements on its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed modified elevations will also be used to calculate the appropriate flood insurance premium rates for the new buildings and their contents and for the second layer of insurance on existing buildings and their contents.
Pursuant to the provisions of 5 USC 605(b), the Administrator, to whom authority has been delegated by the director, FEMA, hereby certifies that the proposed modified BFE determinations, if promulgated, will not have a significant economic impact on a substantial number of small entities. A BFE determination under Section 1363 forms the basis for new local ordinances which, if adopted by a local community, will govern future construction within the floodplain area. The elevation determinations, however, impose no restriction unless and until the local community voluntarily adopts floodplain ordinances in ■ record with these elevations. Even if ordinances are adopted in compliance with Federal standards, the elevations prescribe how high to build in the floodplain and do not prohibit development. Thus, this action only forms the basis for future local actions. It imposes no new requirement; of itself it has no economic impact.
Lessees and owners of real property in the following communities are encouraged to review the preliminary FISs and FIRMs and to submit comments to the appropriate community representatives as listed below. Proposed BFEs along flood sources studied in detail are shown on the flood profiles in the study. The proposed modified BFEs are as follows:
Source of Elevation in feet (NAVD) Communities
Flooding and Existing/Modified
Location of Referenced
Elevation Affected
Red Chute BayouNone *154 City of Bossier City
|^Approximately 12,400 Bossier Parish upstream of Smith Road (Unincorporated Areas)
Approximately 4,050 *165 *169 upstream of Dogwood Trail
North American Vertical Datum of 1968
ADDRESSES:
CITY OF BOSSIER CITY
Maps are available for inspection at City Hall, 620 Benton Road, Bossier City, Louisiana 71111
Send Comments to The Honorable Lorenz “Lo” Walker, Mayor, City of Bossier City, City Hall, 620 Benton Road, Bossier City, Louisiana 71111
BOSSIER PARISH (UNINCORPORATED AREAS)
Maps are available for inspection at the Police Jury Office, 204 Burt Boulevard, Room 108, Benton, Louisiana 71006.
Send comments to William R. Altimus, Bossier Parish Administrator, P.O. Box 70, 204 Burt Boulevard, Room 108, Benton, Louisiana 71006.
| gjApril 28, 2006 & May 5, 2006 Bossier Press Tribune

After FEMA fulfilled its requirements, the Bossier Parish Police Jury enacted the required ordinance under the authority of La. R.S. 38:84 to adopt the FEMA recommendation concerning flood hazards in Bossier Parish. In examining the record before us, we conclude that the FEMA advertisements, while in compliance with federal law, were not sufficient to provide constructive or actual notice of the proposed changes in the flood classification of the property at issue here in order to commence the running of prescription on the plaintiffs’ claims. As can be seen from the notices, they inform the public of changes in base flood elevations along various bodies of water in Bossier Parish, including Red Chute Bayou. However, there is no listing of the subdivisions involved. Further, nowhere in the notice is there any mention of a change in the classification of the property from flood zone to floodway. The notice specifies that the elevation determinations impose no restriction unless and until the local community adopts flood plain ordinances according to the elevations. The notice states that, “the elevations prescribe how high to build in the floodplain and do not prohibit development. Thus, this Inaction only forms the basis for future local actions. It imposes no new requirement of itself and has no economic impact.”

Although the Bossier Parish Police Jury complied with the federal requirements for eligibility for federally-backed flood insurance, there is nothing in the FEMA publications to inform property owners that the adoption of the new FIS or FIRM would result in a designation of their land as being in the floodway, with the attendant increase in restrictions and prohibitions regarding the use and development of the property. The publication itself states that the elevation determinations are not effective until adopted by a local community ordinance.

It was not the publication of the second FEMA notice on May 5, 2006, that started the running of the one-year prescriptive period found in La. C.C. art. 3492, but rather the passage of the Bossier Parish Police Jury ordinance imposing the federal recommendations on the local community. This event changed the status of the plaintiffs’ land and made its development more burdensome, if not impossible. The plaintiffs’ claims opposing the reclassification of their property have not prescribed. The trial courts below erred in finding otherwise.

APPLICABLE PRESCRIPTIVE PERIOD FOR A “TAKING”

| gsWhile a portion of the plaintiffs’ claims sound in tort, they also asserted a cause of action for taking of their property. They claim that actions for the taking of their property would not have prescribed until three years after the discovery of the taking, pursuant to La. R.S. 13:5111. The plaintiffs claim that the taking resulted from the passage of the ordinance adopting the zoning changes which placed the plaintiffs’ property in the floodway. The changes affected the value, use, and restrictions placed on the plaintiffs’ property. The changes caused the plaintiffs to incur increased costs and financial burdens as a result of the classification of their property as being in the floodway.

Legal Principles

The three-year prescriptive period of La. R.S. 13:5111 begins to run from the date of discovery of the taking. Unlimited Horizons, L.L.C. v. Parish of East Baton Rouge, 1999-0889 (La.App. 1st Cir.5/12/00), 761 So.2d 753. In order to determine whether property rights have been “taken” under La. Const. Art. 1 § 4, which provides that property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner, the [ 2f,court must determine (1) if a property right has been affected; (2) whether the property has been taken or damaged in a constitutional sense; and (3) whether the taking is for a public purpose under Article 1, § 4. Adams v. Caddo Parish, 43,047 (La.App.2d Cir.3/19/08), 978 So.2d 1202.

Discussion

In support of their argument that the Bossier Parish Police Jury ordinance re-designating their property as being in a floodway constitutes a taking of the property, the plaintiffs cite La. Att. Gen. Op. 09-0274. That opinion dealt with whether compensation must be paid by the government to a landowner when an amendment to a city ordinance ultimately results in a regulatory taking of private property. According to the opinion, a regulatory taking occurs when governmental regulations compel a property owner to suffer a physical invasion of property or denies the owner of all economically beneficial or productive use of the land. A regulatory taking may also occur if there has been a substantial diminution in value to such an extent that there has been a destruction of a major portion of the property’s value. The City of Zachary enacted an ordinance substantially similar to that enacted by the Bossier Parish ^Police Jury in this case, adopting and incorporating the FIS formulated by FEMA for East Baton Rouge Parish. The opinion stated:

The tract at issue was rendered partially useless when the property was placed in a “floodway.” Being designated as a floodway means that the owner of the Property bears the burden of proof in showing that any construction conducted on the property will not increase flooding in the area. This burden of proof is nearly impossible, and its existence automatically reduces the value of the Property. The primary issue involved here is whether or not this particular reduction of property value amounts to a “regulatory taking,” which requires the payment of just compensation under both the United States and Louisiana Constitutions.

The opinion outlined two types of regulatory actions that can be characterized as a “taking” without undergoing a thorough factual analysis; first, regulations that compel the property owner to suffer a physical “invasion” of his property and second, regulations that deny an owner all economically beneficial or productive use of the land, citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), and Layne v. City of Mandeville, 93-0046 (La.App. 1st Cir.12/29/93), 633 So.2d 608, writ denied, 94-0268 (La.3/25/94), 635 So.2d 234.

The opinion noted that a landowner may recover for inverse condemnation if he proves in court that a regulatory taking has denied 12shim of “all economically beneficial or productive use of his land.” An unconstitutional taking of property does not result merely because the owner is unable to develop it to its maximum economic potential.

Whether a taking occurred in the case sub judice is not currently before us because the merits of the claim have not been considered by the trial court. The plaintiffs have clearly alleged a “taking” in their pleadings and the three-year prescriptive period of La. R.S. 13:5111 is applicable for those claims. As outlined above, the event that triggered the running of prescription in this matter was the passage of the ordinance by the Bossier Parish Police Jury placing the plaintiffs’ property in a floodway. This ordinance became effective on September 3, 2008. The plaintiffs’ suit filed on August 28, 2009, was timely.

CONTRA NON VALENTEM AND CONTINUING TORT

The plaintiffs maintain that the actions and misrepresentations by the defendants preclude a finding of prescription pursuant to the doctrine of contra non valentem. The plaintiffs also argue that, pursuant to the continuing tort doctrine, their actions are not prescribed. Because we find that the plaintiffs’ claims are not barred by prescription, we pretermit consideration of these arguments.

CONCLUSION

| MFor the reasons stated above, we find that the plaintiffs’ claims in this matter have not prescribed. We reverse the judgments of the trial court granting the exceptions of prescription. The matter is remanded to the trial court for further proceedings. Costs in this court are assessed to the Bossier Parish Police Jury in the amount of $293.00.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

      . The plaintiffs in 45,639-CA are: Sharon Anderson, Carl Anderson, Michael Beran, Bonnie Beran, Jamie Duane Douglas, Tiffany H. Douglas, Jared Eguards, Tonya Eguards, Bryan Harrer, Marci Harrer, Michael Robert Josey, Jennifer Josey, Phillip Reed, Ashley Reed, and Charles M. Scott.

      . The plaintiffs in 45,829-CA are: James Bruce Waggoner, Colleen Waggoner, Purple Plum Properties, LLC, Becky Alexander, Charles Alexander, David Alexander, Jeffrey Kilmer Blackwell, Ted Bogues, Jennifer Bo-gues, Deana Rae Cline, Donnie Cole, Shirley Cole, Beverly Coleman, David Kyle Coleman, William Davis, Sheila Davis, Stacey Durbin, Sandy Durbin, Robert Eder, Diana Eder, Darren Fazio, Dana Fazio, Theodore Galewski, Linda Galewski, Bobby G. Gill, Jennifer Gill, Lynda Harper, Charles Patrick Harper, Robert W. Jones, Gina L. Jones, Joseph Victor Kopke, Brittany Nicole Kopke, Karen Lee, Oscar Wayne Lee, Kelly Lococo, Eric Lococo, Mark Wayne Mammarelli, Debora Mammar-elli, Brett McCall, Brittni McCall, Mittie Blackshire McCray, Ernest Robert Negrete, Judy Walker Negrete, Betty Jane Brewer H. Owens, Leslee Rains, Kristen Rains, Vernon E. Sampley, Wilford Steffon Smith, Erica Smith, Roger Suiter, Deborah Suiter, Brian Teutsch, Lora Teutsch, Dalbert Mitchell Wiggins, Amelda Wiggins, and Matthew Joel Wood.

      . Owen & White, Inc., originally named as a defendant, was dismissed by the plaintiffs in both suits, due to the fact that the survey in these matters was completed in 2001, and any claims against the company were barred by the five-year prescriptive period in La. R.S. 9:2772.

      . The notices contained numerous typographical errors. Where possible, we have corrected the text to make the notices comprehensible. It should be noted that the notices were printed in exceptionally small type.

      . La. R.S. 13:5111 provides:
      A. A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.
      B. The rights of the landowner herein fixed are in addition to any other rights he may have under the constitution of Louisiana and existing statutes, and nothing in this Part shall impair any constitutional or statutory rights belonging to any person on September 12, 1975.

      . Although Louisiana Attorney General opinions are merely advisory and not binding, the courts of this State have recognized their persuasive authority. See Holley v. Plum Creek Timber Co. Inc., 38,716 (La.App.2d Cir.6/23/04), 877 So.2d 284, and cases cited therein.


author: STEWART, J.

text:
    Randall S. RODGERS and Pamela B. Rodgers, Plaintiffs-Appellants v. NORTH LOUISIANA AMUSEMENT & GAMING, L.L.C., Xtreme Entertainment L.L.C. and Leon S. Miletello, Jr., Defendants-Appellees.
    No. 45,700-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Booth Lockard Politz LeSage & Odom, L.L.C., Shreveport, LA by Mark W. Odom, for Appellants.

      Bradley Murchison Kelly & Shea LLC, Shreveport, LA by Leland G. Horton, for Appellees.
    Before STEWART, GASKINS and PEATROSS, JJ.
   STEWART, J.

12Plaintiffs-Appellants, Randall and Pamela Rodgers (hereafter “The Rodgers”), are appealing a summary judgment granted in favor of Defendant-Appellee, Leon S. Miletello, dismissing him from this action. For the following reasons, we affirm.

FACTS

On March 7, 2001, the Rodgers entered into an asset purchase agreement, whereby they agreed to sell certain properties totaling $600,000.00 to Xtreme Entertainment, L.L.C. (hereafter “Xtreme”). The property being sold included inventory, gaming machinery and equipment, immovable property, office equipment and furniture, the Rodgers’ rights as lessors under various leases covering portions of the immovable property, the Rodgers’ trade name “North Louisiana Amusement & Games”, and other assets involving video poker gaming contracts and facilities owned by the Rodgers. The Rodgers received a down payment at closing and the balance |3of the purchase was represented in the agreement via a nonnegotiable promissory note, in their favor, to be executed by Xtreme or its designee. North Louisiana Amusement and Gaming, L.L.C. (hereafter “NLAG”), a separate limited liability company formed to operate the new business, executed this promissory note on March 7, 2001, in the principal amount of $177,207.04 in order to satisfy the remaining payment obligations under the asset purchase agreement. The promissory note executed by NLAG was in favor of the Rodgers with 96 monthly payments to be made in the amount of $2,505.12 starting April 10, 2001. Although payments were initially made on the note executed by NLAG, the payments ceased and the note remains in arrears and unpaid with a principal balance of approximately $153,000.00.

An additional promissory note was executed by NLAG in favor of Randall Rodgers in the amount of $30,000.00, with interest from March 7, 2001, at the rate of eight percent. This note was to be satisfied in two annual installments in the amount of $16, 823.08, payable on March 7, 2002, and March 7, 2003. The entire $30,000 principal remains unpaid and owing, interest included. Also effective March 7, 2001, was a guaranty agreement, in the amount of $6,650.00, executed by NLAG in favor of Randall Rodgers.

Both the promissory notes and the guaranty agreement were executed by Leon S. Miletello, who is the sole owner of NLAG.

|4The Rodgers filed suit to enforce collection under the promissory notes, as well as the guaranty agreement. Xtreme, NLAG, and Miletello were named as code-fendants. The Rodgers filed a motion for summary judgment, seeking a determination that Miletello, as the signer of the two promissory notes and the guaranty agreement, did not have the authority to execute on behalf of NLAG. Therefore, he was personally liable under those instruments. In turn, Miletello filed a motion for summary judgement, seeking a determination that he did not have any personal liability under either promissory note or the guaranty agreement. Miletello prayed for dismissal from the suit.

On January 11, 2010, the trial court denied the Rodgers’ motion for summary judgment and granted Miletello’s motion for summary judgment, dismissing him from the suit. The Rodgers now appeal, asserting three assignments of error.

LAW AND DISCUSSION

The Rodgers’ Motion for Summary Judgment/Miletello’s Agency Authority

In the Rodgers’ first assignment of error, they assert that the trial court erred denying their motion for summary judgment and determining that Miletello was not bound personally under the promissory notes and the guaranty agreement. They assert that Miletello did not provide any evidence | sthat he had any actual or apparent authority to execute the promissory notes and guaranty agreement in a representative capacity for NLAG. Similarly, in the Rodgers’ third assignment of error, they argue that the trial court erred in dismissing Miletello from this action, when the undisputed evidence shows that he executed the two promissory notes and a guaranty agreement on behalf of NLAG, without any agency authority to do so. Due to the similarity of these two assignments, we will discuss them together.

Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the nonmovant. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764; Neidlinger v. Warden Medical Dept. & XYZ Inc. Co., et. al., 45,235 (La.App. 2 Cir. 5/19/10), 38 So.3d 1171. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2).

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. | fi966(B). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.

Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Once the mover has properly supported the motion for summary judgment, the failure of the nonmoving party to produce evidence of a factual dispute mandates the granting of the motion. Neidlinger, supra; Huber v. Liberty Mutual Ins. Co., 00-0679 (La.App. 4 Cir. 2/7/01), 780 So.2d 551.

Determinations of an agency relationship and the scope of authority are essentially factual matters, subject to the manifest error standard of review. Webb v. Lagniappe Hospital, 30,659 (La.App. 2 Cir. 6/24/98), 714 So.2d 901. A mandatary who contracts in the name of the principal within the limits of his authority does not bind himself personally for the performance of the contract. La. C.C. art. 3016. On the other hand, a |7mandatary who contracts in his own name without disclosing his status as a mandatary binds himself personally for the performance of the contract. La. C.C. art. 3017. A manda-tary who exceeds his authority is personally bound to the third person with whom he contracts, unless that person knew at the time the contract was made that the man-datary had exceeded his authority or unless the principal ratifies the contract. La. C.C. art. 3019. One who causes a third person to believe that another person is his mandatary is bound to the third person who in good faith contracts with the putative mandatary. La. C.C. art. 3021.

Generally, an agent will be held to have bound himself personally when he enters into an agreement without disclosing the identity of his principal. Irrigation Mart, Inc., v. Gray, 42,442 (La.App. 2 Cir. 9/19/07), 965 So.2d 988, writ denied, 2007-2108 (La.12/14/07), 970 So.2d 522; American Bank and Trust Co. of Coushatta v. Boggs and Thompson, 36,157 (La.App. 2 Cir. 6/12/01) 821 So.2d 585. The agent has the burden of proving that he disclosed his agency status and the identity of his principal if he wishes to avoid personal liability. Id. However, express notice of the agent’s status and the principal’s identity is not required to escape personal liability, if the agent proves that sufficient evidence of the agency | srelationship was known by the third party so as to put him on notice of the principal-agent relationship. Id.

NLAG’s Articles of Organization states in part:

The business of the company shall be managed by its manager. The Manager shall be the mandatary of the Company for all matters in the ordinary course of its business including, without limitation, the sale, lease or encumbrance of its assets, both movables.
NLAG’s Operating Agreement states in pertinent part:
NLAG Operating Agreement, Section 3.1
The initial member of the Company shall be Leon S. Miletello, Jr. Other Persons may be hereafter approved for membership solely by the unanimous written consent of the Members. In all instances, admission of any new Member is in the sole discretion of the Members.
NLAG Operating Agreement, Section 3.5:
... Except as otherwise provided by the Act, the Articles of this Agreement, the affirmative vote of a majority of the total votes of the Company shall be required to approve any matter brought before the Members.
NLAG Operating Agreement, Section Í.2:
The Manager, or each Manager acting individually if there is more than one, may delegate any of his powers, rights and duties hereunder, and may appoint, employ, contract or otherwise deal with any Person for the transaction of the business of the Company, which Person may, under supervision of the Manager, perform any acts or services for the Company as are within the powers of the Manager and which the Manager may approve.
|3NLAG’s Initial Report named Scott Griffis as the manager of NLAG:
The name and municipal address of the first manager of the company is:
Scott Griffis
1036 St. Charles Street
Bossier City, Louisiana 71112

Regarding the two promissory notes at issue, they both state, in relevant part, that “North Louisiana Amusement and Gaming, L.L.C. promises to pay ...” The two notes do not contain any similar statements of any kind regarding Miletello in his personal capacity. Similarly, the guaranty agreement states that the “guaranty contained therein” is given by the “Guarantor,” who is then defined as “North Louisiana Amusement and Gaming, L.L.C.” Again, no reference is made of any personal liability to Miletello. Miletello’s signature appears in the location designated for NLAG in all three documents. His name does not appear anywhere else on all three documents.

In his affidavit, Miletello stated that he owned 100% of NLAG, and has done so since the company was formed. Miletello also admitted that he signed and executed the three documents at issue, as sole owner of NLAG and as its official representative and agent. He denied intending to execute the documents in his personal capacity. He explained in his affidavit that | mScott Griffis, NLAG’s manager, was unavailable to sign the documents.

Miletello alleges that he communicated his authority, as a representative and sole member of NLAG, directly to the Rodgers. No one expressed confusion at the time the documents were executed, nor was Mi-letello’s authority questioned. The record does not provide any indication that the Rodgers objected to Miletello signing the documents in a representative capacity. Additionally, the Rodgers accepted the payments initially made on the note. The record also fails to reveal any evidence that NLAG repudiated Miletello’s authority to sign the documents at issue, nor has it made a claim that Miletello acted outside the scope of his authority.

Miletello, as owner and representative of NLAG, had agency authority to execute the two promissory notes and guaranty agreement on behalf of NLAG. NLAG’s operating agreement expressly permits Griffis, as manager, to delegate his duties to any person “for the transaction of the business of the company.” The designation does not have to be made in writing. Again, the record does not reveal any indication that NLAG repudiated Miletello’s authority to execute the documents in question.

The trial court found, and the record supports, that Miletello had the agency authority to execute the documents at issue. Therefore, trial court did not err in dismissing him from this action, since he cannot be held liable in |nhis personal capacity. For these reasons, assignments of error one and three are without merit.

Miletello’s Motion for Summary Judgment

The Rodgers contend in the second assignment of error that the trial court erred in granting Miletello’s motion for summary judgment and holding that Miletello was not personally liable for his execution of the promissory notes and the guaranty agreement, when the evidence showed that Scott Griffis, the designated manager of NLAG, solely had authority to bind NLAG.

As discussed in the previous assignment, Scott Griffis, NLAG’s manager, was responsible for managing the business affairs of the company. However, the NLAG Operating Agreement expressly allows Grif-fis, as manager the option of delegating his duties to any person “for the transaction of the business of the company.” The Rodgers incorrectly assumed that only one person, Griffis, could have been authorized to execute the NLAG documents.

In this instance, Miletello was designated to execute the promissory notes and guaranty agreement due to Griffis’s unavailability. NLAG never repudiated Mile-tello’s authority to sign the documents at issue. He acted solely as a representative or owner of NLAG, and did not assume any Impersonal liability for the corporate debts of NLAG. This assignment of error bears no merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment granting Miletello’s motion for summary judgment, denying the Rodgers’ motion for summary judgment, and dismissing Miletello from the action is hereby affirmed. Cost of this appeal are assessed to the plaintiffs, Randall and Pamela Rodgers.

AFFIRMED.


author: WILLIAMS, J.

text:
    Scott Richard DURFEE, Plaintiff-Appellee v. Amber D’Laine DURFEE, Defendant-Appellant.
    No. 45,752-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Robert W. Raley, for Appellant.
    William B. King, for Appellee.

      Before WILLIAMS, GASKINS and MOORE, JJ.
   WILLIAMS, J.

12In this child support dispute, the mother, Amber D’Laine Durfee, appeals a trial court judgment ordering her to pay child support to the father, Scott Richard Dur-fee, in the amount of $418.58 per month. For the following reasons, we affirm.

FACTS

Scott Richard Durfee and Amber D’Laine Durfee were married in Bossier Parish in 1996. They had two children, Hayden, born February 13, 2001, and Makenzie, born September 5, 2002. The parties separated in February 2004 and were divorced in November 2004. In September 2004, the trial court entered a judgment granting the parties joint custody of the children and ordering Mr. Durfee to pay $500 per month for child support. In May 2006, the trial court rendered a judgment reducing the amount of |schild support to $158 per month. On February 12, 2007, a consent judgment was rendered, granting Mr. Durfee sole custody of the children, and terminating his obligation to pay child support. The judgment included a clause which stated, “[Njeither party will pay child support to the other.”

On June 25, 2008, Mr. Durfee filed a rule nisi, alleging, inter alia, that “no child support was established in this matter.” Mr. Durfee prayed that there be a judgment in his favor “awarding child support in a reasonable amount.” Ms. Durfee filed an exception of no cause of action, arguing that the February 2007 judgment provided that neither party would pay child support; therefore, in order to justify “an increase” in child support, Mr. Durfee was required to show a material change in circumstances. In response, Mr. Durfee filed a “first supplemental and amended rule,” alleging as follows:

[W]hen the Judgment of February 12, 2007 was rendered, plaintiff and his current wife were both employed, and there was no child support established in this matter for plaintiffs and defendant’s minor children. Plaintiff in rule further shows that his current wife is now staying home with the minor children and is no longer employed; plaintiff desires that this Honorable Court establish child support in an amount to be paid by the defendant for the care and support of plaintiffs and defendant’s minor children.

|4A hearing on the exception and rule was conducted on August 6, 2008. During the hearing, Ms. Durfee argued that Mr. Durfee’s current wife’s decision not to work constituted a “voluntary” change in circumstances; therefore, Ms. Durfee’s obligation to pay child support remained at $0, pursuant to the February 2007 consent judgment. After hearing testimony from Mr. Durfee, the trial court overruled the exception of no cause of action, finding that Mr. Durfee was entitled to request child support. The court also found that Mr. Durfee had met his burden of proving a change in circumstances and that it was in the children’s best interest for Ms. Dur-fee to pay child support. The court ordered Ms. Durfee to pay monthly child support to Mr. Durfee in the amount of $473.21

Ms. Durfee appealed. This court vacated the February 12, 2007 consent judgment, which provided that neither party would owe child support to the other. This court found that the consent judgment was “against public policy and, thus, void.” This court also found that the trial court erred in finding that Mr. Durfee proved a material change in circumstances due to his current wife’s decision to quit her job. This court remanded this matter “for recalculation of child support.” Durfee v. Durfee, 44,281 (La.App.2d Cir.5/13/09), 12 So.3d 984, 989 (“Durfee I”). Ms. Durfee’s application |fifor rehearing was denied on June 18, 2009. This court also denied Ms. Durfee’s “request for clarifying instructions” on February 4, 2010.

During a hearing held on February 8, 2010, the trial court heard arguments from counsel for both parties and reviewed the financial information which had been submitted by the parties. The court recalculated the child support award and ordered Ms. Durfee to pay child support to Mr. Durfee in the amount of $418.58 per month, retroactive to June 25, 2008, the date the original rule to establish support was filed. Ms. Durfee appeals.

DISCUSSION

Ms. Durfee contends the trial court failed to require Mr. Durfee to prove a material change in circumstances. In essence, she argues that since Mr. Durfee did not prove a change in circumstances, her child support obligation should remain $0, based upon the prior consent judgment.

Mr. Durfee contends he was not required to show a change in circumstances. He argues that he did not file a rule to modify child support; he filed a rule to establish support. He also argues that because the consent judgment was found to be null and void, there was no valid child support order in effect to modify.

|nLSA-C.C. art. 227 provides that parents, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children. The obligation to support their children is conjoint upon the parents, and each must contribute in proportion to his or her resources. Cory v. Cory, 43,447 (La.App.2d Cir.8/13/08), 989 So.2d 855; Kirkpatrick v. Kirkpatrick, 41,851 (La.App.2d Cir.1/24/07), 948 So.2d 390. The overriding factor in determining the amount of support is the best interest of the children. Id. The party without legal custody, or nondomiciliary party, shall owe his or her total child support obligation as a money judgment of child support to the custodial or domiciliary party. LSA-R.S. 9:315.8(D); Earle v. Earle, 43,925 (La.App.2d Cir.12/3/08), 998 So.2d 828, writ denied, 2009-0117 (La.2/13/09), 999 So.2d 1151.

LSA-R.S. 9:315(A) provides, in pertinent part:

The premise of these [child support] guidelines as well as the provisions of the Civil Code is that child support is a continuous obligation of both parents, children are entitled to share in the current income of both parents, and children should not be the economic victims of divoree[.] [I]t is very important that the children of this state not be forced to live in poverty because of family disruption and that they be afforded the same opportunities available to children in intact families, consisting of parents with similar financial means to those of their own parents.

17In the instant case, on remand, the trial court heard arguments from both parties, reconsidered the evidence which had been presented, and recalculated the amount of Ms. Durfee’s child support obligation. The court stated:

We started talking about change of circumstances when we had the trial and that was brought up. But I don’t believe that there really needed to be a change of circumstances shown[.] And I think that because ... the Second Circuit has voided the agreement of no child support between the parties. I think that gives us the right, now, to say, okay, we don’t have to have a change of circumstance because it was never set. [A]nd I think if it was never set, then you set it based on the circumstances at the time that the rules were filed and then go forward.
I think that financial information needs to be what Mr. Durfee was making and what the first Ms. Durfee was making. Now, I agree with [Mr. Durfee’s counsel], if I am supposed to consider the fact that the second Ms. Durfee was no longer working. I don’t know where you put that in the child support calculation.
My ruling is that the child support starts as of the day that the rule ... was filed because it is not a modification. I think that the actual agreement between the parties that there would be no child support has been voided. And so it tells me there was no child support ever. And we are just setting it now. I think it should be based on what the first Ms. Durfee was making at the time the rule was filed and what Mr. Durfee was making.

lsWe agree. In Durfee I, this court found that the consent judgment, which provided that neither of these parties would pay child support was “against public policy and, thus, void.” We find that Ms. Durfee’s argument that the consent judgment constituted a mere “deviation” from the child support guidelines is without merit and contrary to this court’s prior ruling. Therefore, the trial court was not manifestly erroneous in concluding that child support had not been established in this matter.

Additionally, we specifically reject Ms. Durfee’s argument that her child support obligation is $0, based upon the invalid consent judgment. Ms. Durfee has expended considerable time and resources in her attempt to use the courts as a vehicle to circumvent a basic and fundamental legal tenet: parents are legally obligated to pay child support in proportion to their resources. It is undisputed that Ms. Dur-fee is the mother of these children. Therefore, she is legally obligated to financially support them. Accordingly, we find that the trial court was not manifestly erroneous, or clearly wrong, in ordering Ms. Durfee to pay child support to Mr. Durfee in the amount of $418.58 per month, retroactive to June 25, 2008.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs are assessed to the appellant, Amber D’Lainie Durfee.

JjAFFIRMED.

      . The record contains no written reasons for the trial court’s judgment. A written agreement executed by the parties, dated December 13, 2006, was introduced into the record. The agreement provided, in part:
      By signing below[,] I, Amber Durfee, hereby turn over custody of Hayden and Makenzie Durfee to Scott Durfee. From this date[,] Scott Durfee will have full custody and domicile parent [sic] of said children.

      As agreed upon between Scott and Amber Durfee, Scott will not pursue Amber for child support.

      . Ms. Durfee was also ordered to maintain health insurance coverage for the children by making direct payments in the amount of approximately $295 per month. Additionally, the court ordered that Ms. Durfee was prohibited from offsetting her total child support obligation by the amount of health insurance premiums.

      . This court also found that the trial court erred in declining to allow Ms. Durfee to deduct the amount of the monthly health insurance premiums from her total child support award. On remand, the trial court ordered Mr. Durfee to provide health insurance coverage for the children.