author: MOORE, J.

text:
    George Dwain SPILLMAN, Sr. and Nancy Calhoun Spillman, Plaintiff-Appellants v. GASCO, INC., F.S.M., Inc. and Frank Scott Moran, Defendant-Appellees.
    No. 47,085-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.
    Rehearing Denied June 14, 2013.

      Ayres, Warren, Shelton & Williams, L.L.C., Shreveport, LA, by Curtis R. Shelton, Justin M. Myers, for Appellants.
    Robert A. Jahnke, Shreveport, LA, for Appellees.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

| George and Nancy Spillman appeal a summary judgment that rejected their claim to enforce a warranty deed. We affirm.

FACTS

In April 2001, the Spillmans bought Lot 19, Deer Park Estates, a subdivision of DeSoto Parish, from Gaseo Inc. They signed a credit sale deed reciting that the sale was with “full guarantee of title.” The credit sale deed also stated, “Subject to any restrictions, easements and servi-tudes of record.” The credit sale deed made no reference to oil, gas and minerals; the Spillmans later averred via affidavit that nobody told them at the time that their purchase excluded the minerals.

Sometime in 2010 (presumably after trying to grant a mineral lease in the Haynes-ville Shale zone), they learned that in July 1999, Frank Scott Moran, a prior owner of the subdivision, had sold the entire tract to Gaseo Inc. by credit sale deed that expressly excluded the minerals from the sale; in November 1999, Moran had executed a sale and assignment of all oil, gas and other minerals under the tract to FSM, Inc. (FSM); and in February 2001, FSM had executed a sale and assignments of the minerals back to Moran. All these documents were filed in the conveyance records of DeSoto Parish before the Spill-mans bought Lot 19.

The Spillmans filed this suit in June 2010 against Gaseo, FSM and Moran. They conceded that when they bought Lot 19 in April 2001, they were unaware that Gaseo did not own the minerals. However, they alleged that Moran was the sole or majority stockholder in both Gaseo and FSM, and controlled both corporations; all three defendants knew or should have | gknown that Gaseo was giving them a warranty deed, but failed to disclose that, contrary to the recitals of the credit sale deed, Gaseo could not convey minerals it did not own. The Spillmans sought judgment enforcing the warranty deed by ordering the defendants to convey the minerals to them. In the alternative, they demanded monetary damages equal to the value of the minerals under Lot 19.

The defendants conceded that Moran was a stockholder in Gaseo and FSM. They asserted, however, that the credit sale deed was subject to “any restrictions, easements and servitudes of record,” and that the documents reserving the minerals to Moran were of record. They also urged the affirmative defenses of assumption of risk and estoppel.

The defendants then filed this motion for summary judgment. They asserted the same facts alleged in their answer, together with certified copies of all the 1999 and 2001 transactions, showing that all were filed in the conveyance records before the Spillmans bought Lot 19. They attached Moran’s affidavit, stating that as a result of these transactions, Gaseo never owned the minerals, and that wells were drilled in the area within 10 years of the creation of the mineral servitude. They also attached a portion of Mr. Spillman’s deposition, in which he stated that he did not examine the public records because he felt Gasco’s agent, Mr. Vennum, was a “very trustworthy type.” They argued that under the public records doctrine, the Spillmans had no claim.

|3The Spillmans opposed the motion, reiterating the facts of their petition. They also alleged that two or three months after they bought Lot 19, they received a “proposed act of correction” stating that through error and inadvertence the language reserving the mineral rights had been omitted from the credit sale deed. They also filed affidavits stating that nobody ever told them about a mineral servitude or reservation of mineral rights, and that they did not really understand what the clause “subject to any restrictions, easements and servitudes of record” meant. They argued that because the seller did not “clearly express the extent of his obligations arising from the contract,” any ambiguity or obscurity must be resolved against the seller. La. C.C. art. 2474.

At a hearing in May 2011, the Spillmans argued that the credit sale deed did not “call out specifically” or “declare the existence of this non-apparent servitude,” but referred only to “restrictions, easements and servitudes.” They also argued that Gaseo and FSM were controlled by Moran, and their collective conduct proved that they knew the reservation in the credit sale deed would not be sufficient to disclose the existence of the servitude. The defendants objected to the introduction of the proposed act of correction, but the record shows no ruling on the objection. They argued that the case was a simple application of the public records doctrine. Apparently, the court agreed and rendered summary judgment in favor of the defendants without written or oral reasons. The Spillmans have filed this appeal alleging two assignments of error.

LDISCUSSION

On appeal, summary judgments are reviewed de novo. Sparks v. United Title & Abstract, LLC, 45,766 (La.App. 2 Cir. 12/15/10), 56 So.3d 302. “Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law.” Cutsinger v. Redfern, 08-2607 (La.5/22/09), 12 So.3d 945, 949.

A motion for summary judgment shall be granted “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 mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Further, La. C.C.P. art. 966(C)(2) provides:

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 of proof at trial, there is no genuine issue of material fact.

By their first assignment of error, the Spillmans argue that the court erred in granting the motion for summary judgment because the warranty of title in the credit sale deed protected the Spillmans from the mineral servitude that the defendants had created but did not declare to exist. They contend that Gasco’s express warranty created obligations under La. C.C. arts. 2475 and 2500, and the “sale of land includes mineral rights that are not expressly reserved or excepted.” Dillon v. Morgan, 362 So.2d 1130 (La.App. 2 Cir. 1978).

By separate argument, the Spillmans contend a “seller should not be allowed to obligate himself to deliver and to warrant title * * ⅜ and then by his own act or claim derogate from, or to assert rights to the thing contrary to, his obligations.” Coleman v. Burgundy Oaks LLC, 46,314 (La.App. 2 Cir. 6/8/11), 71 So.3d 352. Further, a reference that the conveyance was subject to recorded servitudes was not sufficient. Tealwood Properties LLC v. Succession of Graves, 45,975 (La.App. 2 Cir. 4/27/11), 64 So.3d 397. The fact that Gaseo subsequently sent them a proposed correction deed proves that Gaseo felt the language of the credit sale deed was not sufficient to negate the warranty as to a mineral servitude.

Responding to these arguments, the ap-pellees first object to the introduction and use of the unsigned “act of correction” to prove the intent of the credit sale deed, contending that it constitutes inadmissible parol evidence. Texaco, Inc. v. Newton and Rosa Smith Charitable Tnist, 471 So.2d 877 (La.App. 2 Cir. 6/12/85), writ denied, Texaco, Inc. v. Smith, 475 So.2d 1104 (La.10/4/85). They argue that the “subject to any restrictions, easements and servitudes of record” language in the credit sale deed is unambiguous and sufficient to put the Spillmans on notice that they were buying Lot 19, Deer Park Estates, subject to any recorded servitudes, including the instant mineral servitude which was recorded prior to the Spillman purchase. The Spillmans never checked the public records of |fiDeSoto Parish, nor did they ask anyone to check the title to the property. Mr. Spillman said that he did not read all of the credit sale deed and probably did not read the “subject to” language in the deed. They bought the lot for purposes of building their retirement home.

The defendants argue that Coleman v. Burgundy Oaks, LLC, supra, in which some of the deeds in question had identical “subject to” non-warranty language, is not controlling because the case was decided on the “single business enterprise” theory rather than the language in the deeds. Instead, they contend that the recent case of Sparks, supra, supports their position that the public records doctrine and the identical “subject to” language in the deed in that case supports their position that the Spillmans acquired Lot 19 subject to the recorded mineral servitude and that this was the clear intent of the parties.

At the outset, we agree with the defendants that evidence of the attempted “act of correction” is inadmissible. “In general, a court may not rely on parol evidence to define an agreement regarding the sale of real property, as ‘[t]he designation of the sale should properly be based exclusively on the written act of sale.’ ” Taylor v. Fuselier, 2004-885, p. 2-3 (La.App. 8 Cir. 11/2/05), 915 So.2d 1030, 1031, quoting Strange v. Kennard, 99-406, p. 4 (La.App. 1 Cir. 3/31/00), 763 So.2d 710, 712. In a |7real estate transaction, the written “act of sale” or “contract of sale” is embodied in the deed.

Next, the defendants contend that they are all collectively protected against the Spillmans’ suit by the public records doctrine referring to the often-repeated declaration by several courts that “all persons have constructive notice of the existence and contents of recorded instruments affecting immovable property.” See, e.g., Hasslocher v. Recknagel, 160 So.2d 421 (La.App. 2 Cir. 1/09/64), writ refused, 245 La. 964, 162 So.2d 14 (La.1964); cf. Sparks, supra; A.N. Yiannopoulos, 4 La. Civ. L. Treatise, Predial Servitudes § 126 (3d ed.). Whether this declaration is accurate or has any import has been questioned; nevertheless, it is simply a restatement of the rule that a valid recorded instrument encumbering an immovable may be asserted against a subsequent acquirer of the immovable.

We distinguish Sparks, supra, which was a suit in negligence and breach of contract against the title company for an error in the deed. In this case, plaintiffs’ lawsuit is a contract action for breach of the implied warranty pursuant to C.C. art. 2500. It is well settled, though frequently misunderstood, that “for purposes of the implied warranty under Article 2500, a prospective purchaser of an immovable is not charged with ^constructive notice of recorded nonapparent conventional servitudes, nor is he required to search the public records in order to ascertain the existence or nonexistence of such servi-tudes.” A.N. Yiannopoulos, 4 La. Civ. L. Treatise, Predial Servitudes § 126 (3d ed.). (Emphasis supplied); Richmond v. Zapata Development Corp., 350 So.2d 875 (La. 1977), See also, Peter S. Title, Louisiana Real Estate Transactions, § 10.19 (1991). “The registry laws are intended only as notice to third parties and have no application whatever between parties to a contract.” Richmond v. Zapata, supra at 878; Young v. Sartor, 152 La. 1064, 95 So. 223 (1928). A vendee is entitled to rely on his deed as written and is under no obligation to search the public records in order to ascertain what the vendor has and has not sold him. Richmond v. Zapata, supra at 878; Young v. Sartor, supra at 1065, 95 So. at 228. “When a sale is made with an exception to the warranty clause, ‘constructive knowledge’ will not defeat the warranty action.” Collins v. Slocum, 317 So.2d 672 (La.App. 3 Cir.1975). Accordingly, Gasco, Inc., the vendor in the credit sale deed, cannot rely on constructive notice of the contents of the public records to defeat the plaintiffs’ warranty action. Only an express stipulation of non-warranty in the deed will prevent recovery. La. C.C. arts. 2474, 2500; Richmond v. Zapata, supra at 879.

On the other hand, Moran, whose mineral servitude was recorded prior to the plaintiffs’ acquisition of the land, and his vendor, FSM, are not vendors on the plaintiffs’ deed. They are not answerable to the plaintiffs in this warranty action unless there is merit to the plaintiffs’ theory that all three (Moran, FSM, and Gaseo, Inc.) operated as a single business |flenterprise designed to deceive and deprive the plaintiffs of their mineral rights. This issue is considered below in the plaintiffs’ second assignment of error.

We turn now to the question whether there was an adequate stipulation of non-warranty in the credit sale deed that will defeat this action in warranty. We are mindful that the relatively recent Haynes-ville Shale development has dramatically changed the landscape regarding the value of mineral rights even for small residential lots. Prior to the Haynesville Shale, mineral rights to residential lots were of minimal value, and typically, prospective homeowners rarely were concerned with whether their deed to a residential lot was subject to a prior mineral reservation, especially since the object of their real estate purchase was for residential purposes.

One of the seller’s obligations is to warrant the buyer’s peaceful possession against claims of third persons, both as to title to the thing sold and as to charges thereon not expressly declared at the time of sale. La. C.C. arts 2475 and 2500; Collins v. Slocum, supra. If the buyer is evicted from the thing sold, he is entitled to rescission of the sale. La. C.C. art. 2507. But in the case of a partial eviction from the thing sold, he may obtain rescission only if he would not have bought the thing without the part from which he was evicted. La. C.C. art. 2511. If he is not entitled to rescission, the buyer is entitled to a diminution of the price in a proportionate amount to the purchase price at the time of the sale. Id.; Collins v. Slocum, supra.

| j (Article 2500 defines the scope of the seller’s warranty against eviction, which includes the buyer’s loss of the whole or a part of the land sold because of a third person’s right that existed at the time of the sale. The warranty also covers encumbrances on the land that were not declared at the time of sale, with the exception of apparent servitudes and natural and legal nonapparent servitudes. Absent a clearly visible sign, such as a drilling operation or wellhead sitting on the property, a mineral servitude is generally considered a nonapparent servitude. Dillon v. Morgan, supra at 1131-32.

The pivotal issue in this case is whether Gaseo, Inc. limited its obligations of delivery and warranty in the deed by the decía-ration included in the description of Lot 19 that it was “subject to any restrictions, easements and servitudes of record.” As stated above, this declaration requirement arises out of the warranty of ownership and peaceful possession provided by La. C.C. art. 2475. This warranty may be modified or limited. La. C.C. art. 2503. However, La. C.C. art. 2474 requires the seller to expressly declare the extent of his obligations.

Prior to its amendment by 1993 Acts, No. 841, § 1, effective January 1, 1995, C.C. art. 2474 required a vendor to clearly “explain” the extent of his obligations:

The seller is bound to explain himself clearly respecting to the extent of his obligations: any obscure or ambiguous clause is construed against him.

By virtue of the amendment, the legislature substituted the word “express” in place of “explain”:

InThe seller must clearly express the extent of his obligations arising from the contract, and any obscurity or ambiguity in that expression must be interpreted against the seller.

The revision commentator stated that the substitution of the word “express” for “explain” was made “in order to adjust the rule to the practice of everyday transactions.” La. C.C. art. 2474, Comment (a). The defendants contend that the “subject to” language in the deed in this transaction has been used in real estate deeds for a long time, citing the use of similar language in the deeds involved in Coleman v. Burgundy Oaks, LLC, supra.

The plaintiffs contend that the declaration or stipulation of non-warranty in the instant deed does not declare the existence of a mineral servitude burdening Lot 19. They contend that a buyer of a subdivision lot would not conclude from the clause “subject to any restrictions, easements, and servitudes of record” was a reference to anything other than a servitude for utilities or streets or the like. At best, the clause is obscure and ambiguous, which must be interpreted against the seller. La. C.C. art. 2474.

While the “subject to” clause in the deed does not inform the purchaser of any actual “restrictions, easements, or ser-vitudes of record” that may encumber the property, we conclude, nevertheless, that the clause is neither ambiguous nor obscure, and it expressly limited the seller’s warranty, while the purchaser was charged to go to the public records to find if any nonapparent servitudes are of record. The clear purpose of the stipulation of non-warranty was to expressly notify the purchaser that there may be such encumbrances recorded in the conveyance records that limit the seller’s warranty of ownership and possession of the described Lot 19. 112Although this clause requires the plaintiff to search the public records to find out what he has and what he has not purchased, which is contrary to the rule stated in Richmond, supra, we know of no reason or policy why a purchaser cannot agree to such limitation or modification in the Act of Sale. La. C.C. art. 2503. We therefore conclude that the declaration in the seller’s deed, which states that the conveyance is “subject to any restrictions, easements and servitudes of record,” meets the declaration requirements of articles 2474, 2475, 2500 and 2503 regarding the mineral servitude encumbering the property.

The plaintiffs also contend that the ordinary meaning of the term “servi-tudes” does not include “mineral servi-tudes,” thereby rendering the declaration clause ineffective with regard to mineral servitudes. Although we find no prior jurisprudence making a specific ruling on this issue, we conclude that the term “servitudes” includes “mineral servitudes” in this deed. The primary object or purpose of the plaintiffs’ purchase in this case was to obtain a residential lot for a home, not the mineral rights, and the proportionate value of the mineral servitude covering that lot at the time of purchase in 2001 was- likely very small. We believe it to be a common practice in residential lot transactions to use general “subject to” language regarding restrictions and non-apparent servitudes that could possibly burden the lot but not affect its intended use as a residential property.

We conclude that Coleman v. Burgundy Oaks, Inc., supra, is not controlling in this case. In Coleman, a group of homeowners who purchased their lots from Burgundy Oaks, Inc., filed suit alleging that their Jjjdeeds did not disclose a mineral reservation that covered their respective properties. Some of the deeds contained a stipulation of non-warranty very similar to that used in the instant case, stating that the property described was conveyed “subject to all recorded servitudes, restrictions, rights-of-way, and easements.” The plaintiffs sued not only their vendor, Burgundy Oaks, Inc., but also sued its owner and the mineral rights owner, alleging, inter alia, fraud, breach of warranty, and negligent misrepresentation in a plan to deprive them of their mineral rights. The trial court granted the defendants’ motion for summary judgment. On appeal, a panel from this court reversed the summary judgment after concluding that there were issues of material fact in dispute regarding the single business enterprise theory that precluded summary judgment. There was no ruling by the panel regarding the “subject to” language in the deed.

Tealwood Properties, L.L.C., v. Succession of Graves, supra, is also factually distinguishable from the instant case. Although the deed in that case provided that the tract was sold “subject to all utility and other servitudes of record,” which would seem to make it similar to the instant case, the deed also had a specific provision regarding the landowner’s right to the minerals which stated that the vendor “does hereby convey and transfer any and all rights to oil, gas and other minerals ... except any production produced from that certain well named F.A. Baker No. 4....” The seller did not disclose that the entire property was subject to a pre-existing mineral servitude. The trial court dismissed the case based upon one-year prescriptive period for fraud. A panel of this court reversed on |14grounds that there was an extant action for reformation of the deed that was subject to the ten-year prescriptive period.

For these reasons, we conclude that the “subject to” language in the act of sale (deed) in this case did what La. C.C. art. 2500 and other relevant Civil Code articles require to exclude nonapparent servitudes, including mineral servitudes, to defeat this action for breach of the warranty against partial eviction. Accordingly, this assignment is without merit.

By their second assignment, the plaintiffs contend that the court erred in granting the motion for summary judgment because the Spillmans have a cause of action against all defendants for specific performance of the full guarantee of title and for damages in an amount equal to the minerals in, on or under their property. Moran was the “common person who had executed the documents shuffling the minerals” between himself, Gaseo and FSM; this created a single business enterprise as was found in Tealwood Properties, supra, and the defendants “cannot use a corporate cloak to play Three-Card Monte with the mineral rights to the Spillmans’ property.” They pray for judgment reversing the summary judgment.

As stated above, Moran and FSM had a pre-existing, recorded mineral servitude covering Lot 19, prior to the plaintiffs’ purchase. As third parties to the transactions creating that servitude, they are deemed to have constructive knowledge by virtue of the public records doctrine. The plaintiffs allege that Gaseo, Inc. and FSM are all owned by Moran and that these three entities worked together to conceal the fact that they were not obtaining the mineral rights to Lot 19.

11fiBecause we have concluded that the sale from Gaseo, Inc. put the plaintiffs on notice that they were purchasing Lot 19 “subject to” any servitudes, including mineral servitudes of record, and by virtue of the public records doctrine that protects instruments recorded prior to the plaintiffs’ transaction, we find no merit to the allegation that the defendants were involved in some nefarious act to deprive them of their mineral rights. Common ownership does not create liability. Teal-wood Properties, supra, is factually inap-posite, and the case presents none of the normal grounds for piercing the corporate veil. Glenn G. Morris, Piercing the Corporate Veil in Louisiana, 52 La. L.Rev. 271 (1991).

For these reasons, the judgment of the trial court is affirmed. The parties must bear their own costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, DREW and MOORE, JJ.

Rehearing denied.

      . The defendants also filed a third party demand against United Title, which performed the title exam for the credit sale deed to the Spillmans. United Title asserted the three-year peremptive period of La. R.S. 35:200, which the trial court sustained. No one has appealed the judgment sustaining this exception.

      . By way of comment only, we note that- the act of correction arguably has "reservation language” as opposed to "subject to” or language of exception. This is a critical distinction explained in Hodges v. Long-Bell Petroleum Co., 240 La. 198, 221-22, 121 So.2d 831, 839 (1959):
      There is a difference between the sale of a tract of land with a reservation of the minerals and the sale of land subject to existing mineral rights in it. The former is accomplished with language of reservation and indicates that something new is being created. A vendee under such mineral reservation is led to believe that the servitude created by it will prescribe at the end of ten years unless there is mineral development within that time on the land sold. On the other hand, the latter form of conveyance, accomplished with language of exception, puts the vendee on notice that there is a pre-existing mineral servitude on the land which may extend beyond the limits of the land purchased, and that prescription on any such servitude may have been interrupted, or may in the future be interrupted, by mineral development on land other than his own. Hence, language of reservation will suffice to declare one type of charge against the land, but language of exception is necessary to declare the other.

      . The constructive notice doctrine is strongly criticized as "technically inaccurate, unnecessary, and otherwise objectionable” by Professor Redmann. See William V. Redmann, "The Louisiana Law of Recordation: Some Principles and Some Problems,” 39 Tul. L.Rev. 491, 498 (1965).


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Robert and Jessica BOUDREAUX, Tradewinds Offshore Services, Inc. d/b/a RB Enterprises v. Jerry LARPENTER, Terrebonne Parish Sheriff, Terrebonne Parish Consolidated Government and Eugene Trahan.
    No. 2011 CA 0410.
    Court of Appeal of Louisiana, First Circuit.
    June 1, 2012.

      Stanwood R. Duval, C. Berwick Duval, II, Duval, Funderburk, Sundbery, Lovell & Watkins, Houma, LA, for Plaintiffs-Appellants Robert and Jessica Boudreaux and Tradewinds Offshore Services, Inc. d/b/a RB Enterprises.
    Gregory J. Schwab, Houma, LA, for Defendant-Appellee Terrebonne Parish Consolidated Government.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

|2The plaintiffs, Robert Boudreaux, Jessica Boudreaux, and Tradewinds Offshore Services, Inc. d/b/a RB Enterprises (Tradewinds), appeal the judgment of the trial court, which dismissed all claims against the Terrebonne Parish Consolidated Government (TPCG), with prejudice. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Robert and Jessica Boudreaux are married and live at 4673 Bayouside Drive in Chauvin, Louisiana, which is also the location of Tradewinds, the family-owned business at issue in this matter. The Bou-dreauxs purchased the initial tract of land in 1977, and by around 1995, they owned approximately eighty-five to ninety acres of land on Bayouside Drive.

In 1990 or 1991, the Boudreauxs and Tradewinds engaged in what has been described as “dump truck work,” which was associated with the construction business. Tradewinds hauled and sold river sand and limestone, which it would also stockpile at the Bayouside Drive property for later sale. In addition, a portion of the Bayou-side Drive property was set aside so that it could be excavated for dirt, after which the dirt would be hauled and sold as part of the business. In order for Tradewinds to conduct this work, it was necessary for large, heavy, commercial trucks to traverse Bayouside Drive to conduct business at the Boudreauxs’ property.

The record establishes that Bayouside Drive was initially constructed as a farm-to-market road that was overlaid with asphalt and concrete in the late 1960s. The roadway is substandard by current standards in that it is rather narrow and does not have much of a shoulder. At some point in the early 1980s, the Terrebonne Parish Police Jury, the pre-cursor to the TPCG, instructed its staff to place | ¡¡signage establishing a five-ton limit on the road to prevent large truck traffic. Thereafter, the TPCG received a petition from residents in the area to enact a five-ton weight limit restriction on the road. In response, the TPCG hired Wave Tech, Inc., an engineering firm, to perform nondestructive testing of Bayouside Drive to establish the condition and capacity of the roadway. The TPCG relied on the findings of the Wave Tech report to support the establishment of a fifteen-ton weight limit restriction.

In October 1996, the TPCG enacted Ordinance 5685, which, among other things, established a fifteen-ton weight limit restriction on the entirety of Bayouside Drive. The ordinance amended the Terre-bonne Parish Code dealing with motor vehicles and traffic and provided, in pertinent part, as follows:

The entire length of Bayouside Drive is hereby designated as a 15-ton weight limit zone, and appropriate “15 Ton Weight Limit” signs shall be erected and maintained along the said roadway to create and maintain said zone. Any vehicle traveling on Bayouside Drive shall respect the signs erected and maintained under the provisions of this section.

Mr. Boudreaux testified that he was aware that signs regarding the fifteen-ton weight limit were posted along Bayouside Drive in 1996 or 1997. Nevertheless, despite the adoption of this ordinance and the presence of the signs, Tradewinds continued to operate its business at the Bayouside Drive location without regard for the weight restrictions.

Furthermore, Tradewinds continued to expand, so that by 1999 or 2000, it owned twelve to fourteen tandem dump trucks, a fleet of eighteen-wheel trailer trucks, three bulldozers, and two excavators. According to Mr. Boudreaux, each of the tandem dump trucks weighed approximately ten or eleven tons empty and up to twenty-five tons when fully loaded. He further testified that each eighteen-wheeler weighed approximately sixteen tons empty and up to forty-four tons when fully loaded. Tradewinds used these vehicles to transport dirt, river sand, limestone, and other 14materials to and from the Bayouside Drive location in clear violation of Ordinance 5685.

Nevertheless, Mr. Boudreaux testified that law enforcement officials did not begin to enforce the ordinance until 1999, at which time various citations were given to drivers employed by Tradewinds. Law enforcement officials continued to issue citations to the drivers in 2000, and Mr. Boudreaux testified that his drivers regularly violated the ordinance, because many of the trucks used in the business weighed more than fifteen tons even when empty.

On May 9, 2000, David Norman, who was the attorney for the Boudreauxs and Tradewinds at the time, wrote a letter to the TPCG, complaining that the weight limit would effectively prohibit some or all of Tradewinds’ trucks from traveling on Bayouside Drive. The letter asserts that the weight limit “presents obvious issues of unconstitutional regulatory takings since Mr. Boudreaux was operating long before this ordinance was passed.” According to the letter, Mr. Boudreaux could not continue to operate his business in light of the enforcement of the weight limit ordinance, and he had no economically viable alternative to operating at his current location. The letter further requested alternative relief from the parish, possibly in the form of a permit, for which the ordinance did not provide a procedure.

In December 2000, the TPCG adopted Ordinance 6362, which, among other things, repealed the weight limit restrictions established in Ordinance 5685, and enacted section 18-30 of the Terrebonne Parish Code dealing with motor vehicles and traffic. This section re-enacted the fifteen-ton weight limit on Bayouside Drive and allowed for a person to obtain a permit to operate vehicles in excess of the weight limit. Specifically, section 18-30 provides:

(a)No person shall drive or operate a vehicle having a total weight in excess of fifteen (15) tons, without obtaining a permit from the director of public works, or his designee, in accordance with section 18-32 of this [ 5Code, on the following named streets or portions of streets:
Bayouside Drive
(b) The council from time to time may designate other specific streets or portions of streets on which the maximum weight limit set forth in this section applies.
(c) Any person who violated the weight restrictions imposed herein shall, in addition to the general penalties set forth for violation of a parish ordinance be liable to the parish government for any damages incurred as a result of the driving or operation of a vehicle in excess of fifteen (15) tons on any of the designated roads or streets set forth herein.
Section 18-32 provides for the following with regard to permit applications:
(a) Applications for permits to drive or operate a vehicle having a total weight in excess of the weight limits established by this Article shall be made to the director of public works, or his designee, on forms available at the department of public works. The department of public works shall notify the council member for the district for which an application is submitted. The permit application in addition to stating the name of the persons or business making the application, specify what type of vehicles the applicant is requesting for permit and the [applicant’s] anticipated duration of roadway usage.
(b) Applications required by this Article to be submitted to the director of public works shall be promptly evaluated by the department of public works based on objective criteria related to the impact of the proposed use on a parish roadway and the department shall determine the term of the permit and appropriate permit requirements for mitigation or reparation of damages, such as bonding or insurance. If the director of public works, or his designee, grants a permit, he shall notify the applicant of that determination, within thirty (30) days from the application date, by written notice to the address listed on the application form and the applicant shall within fifteen (15) days of receipt of the administrative determination, provide proof of compliance with the conditions of the permit or file an appeal, to protest the required conditions, as set forth in section 18-32(d).
(c) If the director of public works, or his designee, denies a permit application, he shall notify the applicant of that determination, within thirty (30) days from the application date, by written notice to the address listed on the application form. The applicant may appeal the denial as set forth in section 18-32(d).
(d) If the applicant is aggrieved by the administrative decision, he may appeal the decision by filing a written application for appeal, within fifteen (15) days of receipt of the administrative determination, to the council, which may hear or deny the appeal within sixty (60) days. If the council grants an application for appeal, it shall decide by motion whether to affirm, modify, or reverse the administrative determination.

Tradewinds and its drivers continued to violate the weight limit restrictions on | (¿Bayouside Drive even after the adoption of Ordinance 6362, without applying for a permit. On January 18, 2002, Jerry Lar-penter, the Sheriff of Terrebonne Parish, sent a letter to Mr. Boudreaux, advising him that he was to cease operating trucks on Bayouside Drive in violation of the weight limitations. Sheriff Larpenter further warned Mr. Boudreaux that citations would be issued if Mr. Boudreaux or his drivers continued to operate trucks in violation of the weight limit restrictions on Bayouside Drive. Thereafter, on January 28, 2002, the Boudreauxs and Tradewinds initiated the instant lawsuit by filing a motion for temporary restraining order, preliminary injunction, and permanent injunction against the TPCG.

The trial court granted the temporary restraining order and set the matter for hearing on the issue of the preliminary injunction. However, after a hearing on the preliminary injunction, the trial court noted that, because plaintiffs had not completed the permit process at the time of the hearing, the court was not in a position to determine the issue. Therefore, the trial court denied the plaintiffs’ request for a preliminary injunction.

At the hearing on the preliminary injunction, the plaintiffs also amended their petition to request a declaratory judgment, alleging that the ordinances were unconstitutional as applied to their business. Specifically, the amended petition alleged that Ordinance 5685 violated their rights to property, due process, and equal protection under the laws. Finally, the plaintiffs sought damages for inverse condemnation, claiming that the application of the ordinances had effectively taken their property rights without just and due compensation.

Meanwhile, the plaintiffs continued the application process in an effort to obtain a permit to operate their trucks on Bayou-side Drive. On April 18, 2002, the TPCG, through the assistant parish attorney, sent a letter to the plaintiffs and their attorney advising them that a permit would issue for six months upon certain conditions being 17met, including the production of “insurance, surety bond, or other acceptable security, in favor of the Parish, ... in the amount of $125,000 to cover the cost of any property damage caused to [Bayouside Drive] by the use of [their] overweight vehicles.” In an effort to comply with these conditions, the plaintiffs attempted to obtain a surety bond from Marsh USA, Inc. (Marsh). According to the plaintiffs, the bond company required that they submit audited financial statements for the company prepared by a certified public accountant, as well as a fee of approximately $2,500 to $3,125 for the bond. In addition, the plaintiffs contended that it would have cost them between $6,000 and $12,000 to pay the certified public accountant to provide the audited financial statements. Because they believed these conditions were too onerous, the plaintiffs never obtained a surety bond as required by the terms of the permit.

The parties continued to negotiate in an effort to come to an agreement on the terms of the permit; however, no agreement was ever reached. On November 20, 2002, the plaintiffs sent a letter to the Terrebonne Parish Council (council), alleging that their permit application had been constructively denied. The plaintiffs requested that the council overrule the administration and issue a permit to them, either with no requirement for a bond or with a bond in a much lower amount. Nevertheless, the parties continued to negotiate after the filing of the appeal and, although the appeal was scheduled for hearing before the council on at least two occasions, it was continued each time on the request of the plaintiffs’ attorney. As a result, the appeal was never heard by the council. In addition, the plaintiffs never complied with the conditions established for the permit, and no permit was ever issued.

In July 2004, the plaintiffs filed a second amended petition, alleging that, since the filing of the original petition, their business had been taken away from them due to the passage and enforcement of the ordinances and the failure of the TPCG to act upon the plaintiffs’ permit application. According to the plaintiffs, under such circumstances a 1 spreliminary injunction would no longer be of use to them. The plaintiffs further alleged that they had been forced to start a new business because their trucks could no longer run. Therefore, the plaintiffs restated their earlier claim for inverse condemnation, contending that enforcement of the ordinances has deprived them of virtually all economically viable use of the Bayouside Drive property. In addition to the damages requested in the earlier amended petition, the plaintiffs also prayed for costs of court and reasonable attorney fees pursuant to LSA-R.S. 13:5112.

The trial court conducted a bench trial, after which it took the matter under advisement. On March 29, 2010, the trial court signed a written judgment in favor of the TPCG, dismissing the plaintiffs’ claims against it, with prejudice. The trial court further provided written reasons, finding that the plaintiffs had failed to carry their burden of proving that the ordinance in question was unconstitutional. Plaintiffs have appealed.

DISCUSSION

The question of whether the ordinances at issue are constitutional is a legal question, which will be reviewed de novo. See State v. All Property and Casualty Insurance Carriers Authorized and Licensed to do Business in State, 06-2030 (La.8/25/06), 937 So.2d 313, 319. An ordinance, like any act of the legislature, is presumed to be constitutional. Everhardt v. City of New Orleans, 253 La. 285, 289, 217 So.2d 400, 401 (1968); Wes-T-Erre Development Corporation v. Terrebonne Parish, Through Police Jury of Terrebonne Parish, 416 So.2d 209, 215 (La.App. 1st Cir.), writ denied, 421 So.2d 251 (La.1982). Therefore, the party challenging the validity of the ordinance has the burden of establishing by clear evidence that the ordinance is unconstitutional. Wes-T-Erre Development Corporation, 416 So.2d at 215; see also State v. Citizen, 04-1841 (La.4/1/05), 898 So.2d 325, 334.

Plaintiffs contend that the TPCG enacted the ordinances in violation of Article I, § 4 of the Louisiana Constitution, as well as the Fifth Amendment to the United States | ciConstitution. At the time these ordinances were adopted, Article I, § 4 of the Louisiana Constitution provided, in pertinent part:

(A) Every person has the right to acquire,- own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
(B) 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 or into court for his benefit.... In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss....

Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law. LSA-C.C. art. 477; State Through Dept. of Transp. and Development v. Chambers Inv. Co., Inc., 595 So.2d 598, 603 (La.1992); see also LSA-Const. art. I, § 4. However, the rights of a landowner are always “subject to reasonable statutory restrictions and the reasonable exercise of the police power.” LSA-Const. art. I, § 4(A).

The police power is a power inherent in every governing authority to govern men and things and, within constitutional limits, to prescribe regulations for the promotion of public health, safety, morals, and general welfare. Wes-T-Erre Development Corp., 416 So.2d at 214. The test of whether an ordinance or regulation is a constitutionally valid exercise of police power depends on whether, under all circumstances, the regulation is reasonable and whether it is designed to accomplish a purpose properly falling within the scope of the police power. Id.

The parties do not dispute that the TPCG has the power to pass ordinances to establish weight limits on the roads within the parish. See LSA-R.S. 48:481; LSA-R.S. 33:1236. However, the plaintiffs contend that the passage of these ordinances | ^constitutes an inverse condemnation of their property in violation of the constitutional provisions above. To establish inverse condemnation, a party must show that (1) a recognized species of property right has been affected; (2) the property has been taken or damaged in a constitutional sense; and (3) the taking or damaging was for a public purpose under Article I, § 4 of the Louisiana Constitution. Suire v. Lafayette City-Parish Consolidated Government, 04-1459 (La.4/12/05), 907 So.2d 37, 60. As the trial court noted in its written reasons for judgment, there does not appear to be any dispute that any alleged taking or damaging of the Bayou-side Drive property by the passage of the ordinances would have been for a public purpose. Furthermore, it is clear that the imposition of the fifteen-ton weight limit on Bayouside Drive affected the plaintiffs’ ability to use that property in the manner it had previously been used, at least without their having to go through the additional steps necessary to qualify for a permit. Therefore, it appears that the only question left to be decided with regard to the issue of inverse condemnation is whether the Bayouside Drive property has been taken or damaged in a constitutional sense.

In Annison v. Hoover, 517 So.2d 420, 423 (La.App. 1st Cir.1987), unit denied, 519 So.2d 148 (La.1988), this court recognized a distinction between regulatory takings and physical takings of property. According to the court, physical takings are easily identifiable, while regulatory takings may or may not be. In addition, the court held that regulatory programs that adversely affect property values did not constitute a taking unless it destroyed a major portion of the property’s value. Id. Only after the court determines that there has been a destruction of a major portion of the property’s value can the question of compensation be considered. Id.

The plaintiffs suggest that the TPCG’s passage of the weight limit restrictions constitutes an unconstitutional taking of the Bayouside Drive property, because it deprived the plaintiffs of the practical economic uses of the property and substantially diminished the value of the property, without expropriation, due process, and compensation. Specifically, the plaintiffs contend that, by passing these ordinances, the luTPCG destroyed Trade-winds’ business value, as plaintiffs could no longer operate their trucks to haul dirt, sand, and limestone from the Bayouside Drive property to their customers. However, a review of the record does not support the plaintiffs’ contentions.

The record demonstrates that the fifteen-ton weight limit on Bayouside Drive was just one facet of a parish-wide plan for establishing weight limits on roads within the parish and that the weight limit established on Bayouside Drive was the most liberal limit on roadways in the parish. The record further demonstrates that the weight limit on Bayouside Drive was established after consultation with experts and in reliance on them recommendations. Testimony in the record further indicated that the weight limit on Bayou-side Drive was adopted in response to concerns about the condition of the road raised by other residents in the area. There was also evidence that the area of the road around the entrance to the plaintiffs’ property was torn up, possibly due to the constant traffic from the plaintiffs’ heavy trucks. It was not unreasonable for the TPCG to establish weight limits on a road that was being damaged and for which it was financially responsible.

It is also clear that the plaintiffs had the ability to continue conducting their business at the Bayouside Drive location by complying with the requirements necessary to obtain a permit that would have allowed them to operate their trucks with a total weight in excess of fifteen tons on Bayouside Drive. However, for whatever reason, the plaintiffs chose not to comply with these requirements. The plaintiffs have attempted to place the blame for the loss of their business on the TPCG’s failure to provide a procedure for obtaining a permit in the original ordinance. However, the record clearly demonstrates that, despite their knowledge of the weight limits on the road in 1996 or 1997, the plaintiffs continued to operate out of the Bayou-side Drive location without interference until 1999. Furthermore, even after law enforcement officials began to 11gwrite citations and issue warnings for the violation of the ordinance, the plaintiffs and their drivers continued to openly operate their business in clear violation of the ordinance. It was not until the year 2000 that the plaintiffs attempted to communicate with the TPCG about the ordinance, and later that year, the TPCG enacted a new ordinance to allow for a procedure to obtain a permit to operate vehicles in excess of the weight limit. Nevertheless, the plaintiffs failed to even apply for a permit until 2002. Even then, however, the plaintiffs failed to comply with the requirements set forth by the TPCG to obtain the permit.

The plaintiffs have attempted to demonstrate that they could not comply with the requirements to obtain a permit, because the amount of security required by the TPCG was excessive. In support of this contention, they provided a letter from Marsh, the company from which they had attempted to obtain a surety bond, in which the company suggested that it found it extremely unusual that the parish would ask for a bond in the amount of $125,000, when the overweight bonds it usually saw were much lower. However, the TPCG demonstrated that it had relied on DOTD guidelines in establishing the amount of security it would request in this matter. Furthermore, the record indicated that, in an unrelated matter, another company was required to post a $875,000 letter of credit for an overweight permit to operate on Bayouside Drive. Accordingly, we find that the plaintiffs have failed to carry their burden of proof that the passage of the ordinances caused the Bayouside Drive property to be taken or damaged in a constitutional sense.

The plaintiffs further contend that the ordinances violated their rights to both procedural and substantive due process under the United States and Louisiana Constitutions, which prohibit a person from being deprived of life, liberty, or property, except by due process of law. See U.S. Const. amends. V and XIV; LSA-Const. art. I, § 2. The central meaning of procedural due process is well-settled. Persons whose rights may be affected by state action are entitled to be heard at a meaningful time and in a meaningful manner, and in order that they may enjoy that right, they must first be | ianotified. In re Adoption of B.G.S., 556 So.2d 545, 549 (La.1990). We note, however, that the adoption and amendment of the ordinances was a legislative function undertaken by the TPCG as part of its general police power to regulate the roads in Terrebonne Parish. See LSA-R.S. 48:481; LSA-R.S. 33:1236. When a governmental action is characterized as legislative or quasi-legislative, procedural due process requirements do not apply. Jackson Court Condominiums, Inc. v. New Orleans, 874 F.2d 1070, 1074 (5th Cir. 1989); Messina v. St. Charles Parish Council, 03-644 (La.App. 5th Cir.12/30/03), 865 So.2d 158, 161, writ denied, 04-0285 (La.3/26/04), 871 So.2d 354, cert. denied, 544 U.S. 1060, 125 S.Ct. 2512, 161 L.Ed.2d 1109 (2005).

We further note that, although the TPCG never denied their permit application, the plaintiffs did schedule two appeal hearings before the council, claiming that their permit application had been constructively denied. On each occasion, the hearing was continued on motion of the plaintiffs’ attorney. Therefore, we find that the plaintiffs cannot now be heard to complain that they were not provided an opportunity for a meaningful hearing in this matter. Accordingly, there was no violation of their right to procedural due process.

The plaintiffs also contend that the ordinances violated their right to substantive due process, suggesting that the ordinances interfered with their property interests in a way that was arbitrary or capricious. Substantive due process may be broadly defined as the constitutional guaranty that no person shall be arbitrarily deprived of his life, liberty, or property. Babineaux v. Judiciary Commission, 341 So.2d 396, 400 (La.1976). The essence of substantive due process is protection from arbitrary and unreasonable action. Id.

In order to prove a violation of substantive due process, the plaintiffs must first establish the existence of a constitutionally protected property or liberty interest. Standard Materials, Inc. v. City of Slidell, 96-0684 (La.App. 1st Cir.9/23/97), 700 So.2d 975, 985-86. Once that interest has been established, a violation of substantive due process still requires arbitrary and capricious conduct by the governing authority. A114government decision regulating a landowner’s use of his property offends substantive due process if the government action is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Standard Materials, Inc., 700 So.2d at 986. In other words, government action comports with substantive due process if the action is rationally related to a legitimate governmental interest. Id.

Assuming that the plaintiffs can satisfy the first prong of the test by establishing the existence of a constitutionally protected property or liberty interest, the plaintiffs clearly cannot meet the second prong of the test. The TPCG’s conduct in passing the ordinances to establish a weight limit is clearly rationally related to its legitimate interest in protecting a road for which it was financially responsible. Keeping such a road in good repair is necessary and rationally related to public safety. As noted previously, evidence in the record indicated that the TPCG commissioned a study on the impact the heavy trucks would have on the road and used the information that study provided in determining the appropriate weight limit to establish; therefore, the weight limit was clearly not established in an arbitrary or capricious manner. Accordingly, we find that the plaintiffs are unable to sustain a claim that their substantive due process rights were violated.

Finally, plaintiffs contend that the ordinances violated their right to equal protection under the laws pursuant to the Fourteenth Amendment of the United States Constitution and Article I, § 3 of the Louisiana Constitution. Generally, the state constitutional guarantee of equal protection mandates that state laws affect alike all persons and interests similarly situated. This guarantee does not, however, take from the legislature all power of classification. Beauclaire v. Greenhouse, 05-0765 (La.2/22/06), 922 So.2d 501, 505.

1 lain Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094, 1107 (La.1985), the supreme court set forth a three-tier evaluation to determine whether there had been a violation of equal protection, as follows:

Article I, Section 3 commands the courts to decline enforcement of a legislative classification of individuals in three different situations: (1) When the law classifies individuals by race or religious beliefs, it shall be repudiated completely; (2) When the statute classifies persons on the basis of birth, age, sex,. culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis; (3) When the law classifies individuals on any other basis, it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest. [Footnotes omitted.]

It is clear that the third level of scrutiny applies in this case, because there is no classification based on race, religious beliefs, birth, age, sex, culture, physical condition, or political beliefs. When the third level of scrutiny applies, the law creating the classification is presumed to be constitutional. Thus, the party challenging the constitutionality of the law has the burden of proving it is unconstitutional by showing the statute fails to serve a legitimate governmental purpose. Beauclaire, 922 So.2d at 505-06. Great deference is given to legislative determinations, and a classification is constitutional if it has a rational relationship to a valid state interest. Beauclaire, 922 So.2d at 506.

As discussed previously, the weight limit is clearly rationally related to the legitimate governmental purpose of preserving the life span of the road and keeping it in good repair. The plaintiffs suggest in their brief to this court that there may have been some selective enforcement of the ordinances, such that others were not cited for violating the ordinances, while the plaintiffs were repeatedly cited. Assuming this to be true does not change the analysis of the language of the ordinances for equal protection purposes. Furthermore, the enforcement of the ordinances was carried out by officials with the Terrebonne Parish Sheriffs Department and other law enforcement departments, which have not been made defendants in this matter. Accordingly, we hr,find that the plaintiffs are unable to sustain a claim that they have been deprived of equal protection under the laws.

CONCLUSION

For the above reasons, we affirm the judgment of the trial court, dismissing the plaintiffs’ claims against the Terrebonne Parish Consolidated Government. All costs of court are assessed to the plaintiffs, Robert Boudreaux, Jessica Boudreaux, and Tradewinds Offshore Services, Inc. d/b/a RB Enterprises.

AFFIRMED.

      . The trial court judgment also dismissed all claims against Terrebonne Parish Sheriff Jerry Larpenter who was dismissed from these proceedings by mutual consent of the parties at the time of trial The plaintiffs have not appealed that portion of the judgment. Eugene Trahan had been previously dismissed from the proceedings by an earlier judgment.

      . Bayouside Drive is not a state highway, but a two-lane, paved parish road.

      . The record indicates that there was no ordinance establishing this five-ton weight limit; however, according to the testimony of Al Levron, who was the Public Works Director of Terrebonne Parish for many years and was the Parish Manager at the time of his testimony, such matters did not need to be handled by ordinance prior to 1984.

      . According to Mr. Boudreaux, the tandem trucks had a capacity of fourteen to fifteen yards of material, and the eighteen-wheel trailer trucks would carry between twenty-four and twenty-six yards of material.

      . Although Bayouside Drive is the only road to which the fifteen-ton weight limit applies, Ordinance 6362 also establishes various weight limits on other roads in the parish, with the fifteen-ton weight limit on Bayouside Drive being the most liberal.

      . Section 18-31 exempts emergency vehicles and vehicles performing the services of local government, including school buses, garbage, and light delivery trucks from the provisions of the posted weight limit restrictions.

      . As noted previously, Sheriff Larpenter and Eugene Trahan were also named as defendants in this matter; however, both have been dismissed from these proceedings, and neither is a party to this appeal.

      . At the hearing, Mr. Boudreaux testified that he had recently applied for a permit, but had not yet received a response.

      . Mr. Boudreaux testified that Tradewinds could have afforded the fee for the bond, but it could not have afforded the fee for the audit every six months; however, Mr. Norman, the plaintiffs’ former attorney, testified that he was not aware whether the audit requested by the bond company would have been needed every six months.

      . At trial, it was established that this new business, which involves crew boats, is more profitable than the former dump truck business.

      . This amendment provides, in pertinent part, "... nor shall private property be taken for public use, without just compensation.” U.S. Const, amend. V.

      . Paragraph (B) of Article I, section 4 of the Louisiana Constitution was amended by 2006 La. Acts, No. 851, § 1, approved September 30, 2006; however, the relevant substantive language above is largely unchanged.

      . Specifically, the TPCG commissioned a study from Wave Tech, an engineering firm, which determined that Bayouside Drive would have a life span of approximately eight- and-one-half years with a fifteen-ton weight limit, considering the traffic flow at the time of the report. As noted previously, it was based on this report that the TPCG settled on the 15-ton weight limit for Bayouside Drive.

      . In Standard Materials, Inc., 700 So.2d at 983, the court, in reliance on Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 194, 105 S.Ct. 3108, 3116, 3120, 87 L.Ed.2d 126 (1985), suggested that a substantive due process claim might not be ripe until the governmental entity charged with implementing the challenged regulations has reached a final decision regarding the application of the regulations to the property at issue. However, the court then discussed the merits of the substantive due process claim "in the event that this determination regarding ripeness is erroneous.” Standard Materials, Inc., 700 So.2d at 983. We have also discussed the merits of the substantive due process claim in this matter for the purpose of judicial economy.

      . The sheriff was originally a defendant, but he was dismissed prior to trial.


author: HUGHES, J.

text:
    Annette Bilello HAGEN v. David HAGEN.
    No. 2011 CA 1130.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 2012.

      Kentley R. Fairchild, Houma, LA, for Plaintiff/Appellant Annette Bilello Hagen.
    Steven J. Lane, New Orleans, LA, for Defendant/Appellee David Hagen.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   HUGHES, J.

12This is an appeal from a judgment reducing child support. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties to this divorce action, Annette Bilello Hagen and David Hagen, were married on June 27, 1986, and thereafter established their matrimonial domicile in Terrebonne Parish. Of this marriage five children were born; the names of the children and their approximate ages at the time of the filing of this suit for divorce, on October 24, 2005, were: Stephen, 16; David, 15; Andrew, 13; and twins, Ben and Eli, 16 months.

At the time of the filing of the suit, Annette Hagen, though a registered nurse, was not employed outside the home, and David Hagen was employed as a physician in an ENT clinic in Houma, Louisiana. Initially, the parties entered into a consent judgment, agreeing to the joint custody of David, Andrew, Ben, and Eli, with Ms. Hagen being the primary domiciliary parent. Dr. Hagen also agreed, in a subsequent consent judgment, to pay Ms. Hagen the lump sum of $6,000.00 per month for both child support and temporary periodic spousal support, pending a hearing on the issues. The consent judgment declared that “for tax purposes only” the $6,000.00 monthly payment would be considered as being comprised of $4,000.00 for child support and $2,000.00 for spousal support. The consent judgment further declared: “This apportionment shall be to the prejudice of neither party, and shall not be considered in any future modifications of child support or the establishment of final spousal support obligations.” A final judgment of divorce was signed on October 25, 2006.

|sOn August 13, 2007 Dr. Hagen sought to be named the domiciliary parent for David, and Ms. Hagen later consented. Thereafter, Dr. Hagen sought a reduction in child support and the discontinuation of spousal support.

In a January 29, 2009 consent judgment, which also dealt with the partition of community property, the parties agreed to the waiver of claims related to spousal support and the discontinuation of Dr. Hagen’s monthly $6,000.00 support payment, effective February 1, 2009. The parties further agreed to exchange financial information for a recalculation of the amount of child support owed, which would be retroactive to February 1, 2009, and that “[i]n the meantime” Dr. Hagen would pay $4,000.00 per month in child support “without prejudice to either party.”

Subsequently, Ms. Hagen filed a rule to set child support, and issues were raised concerning who should have domiciliary custody of Andrew. During a December 2, 2009 hearing on other matters, the parties agreed to Dr. Hagen having domiciliary custody of Andrew. Briefs on the child support issue were afterward filed with the trial court, and Dr. Hagen petitioned for a reduction in child support, additional physical custody time with his children, and for contempt on related issues against Ms. Hagen.

After a hearing on August 10-11, 2010 on the issues of child support, physical custody of the children, and Dr. Hagen’s motion for contempt against Ms. Hagen, the trial court fixed Dr. Hagen’s child support obligation for “the minor children, Ben, Eli and Andrew” at $3,200.00 per month, retroactive to February 1, 2009, and decreeing that Dr. Hagen would be responsible for 93% and Ms. Hagen 7% of the children’s unreimbursed Lmedical, school, and extracurricular expenses; the trial court judgment was signed on November 15, 2010.

Ms. Hagen has appealed this judgment, asserting the trial court “erred in failing to follow statutory mandates by modifying a basic child support obligation downward to an amount less than the highest amount set forth in the Louisiana Child Support Guideline Schedule of Basic Child Support Obligations.”

Subsequent to the filing of the appeal, the parties entered into a partial settlement, and stated in a “Notice of Partial Settlement,” filed September 14, 2011 with this court, the following:

I.
On August 15, 2011, the parties entered into a Consent Judgment in which the parties agreed that beginning September 1, 2011, Dr. Hagen will pay child support for the two remaining minor children in the amount of $3,000 per month. Further, the parties have agreed to maintain the 93% / 7% allocation of direct expenses.
II.
Based on the attached Consent Judgments, there is no longer an issue before this Honorable Court as to the amount of child support that Dr. Hagen should pay from September 1, 2011 forward. The only issue now before this Honorable Court is the amount of child support Dr. Hagen should be paying from the date of the filing of his Rule to Reduce Child Support on February 9, 2010, through August 31, 2011.
III.
In addition, the parties have agreed that the percentage of payment of direct expenses should be 93% to Dr. Hagen and 7% to Mrs. Hagen. Therefore, the issue of what percentage of expenses should have been [paid] from February 9, 2010 through the present is no longer before this Honorable Court.

Accordingly, we limit our review of this case to the appropriate amount of child support owed by Dr. Hagen to Ms. Hagen during the period of February 9, 2010 through August 31, 2011.

|SLAW AND ANALYSIS

The premise of the Guidelines for Determination of Child Support, as well as the provisions of the Civil Code relative to child support, 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 divorce or out-of-wedlock birth. The economic data underlying these guidelines, which adopt the Income Shares Model, and the guideline calculations attempt to simulate the percentage of parental net income that is spent on children in intact families, incorporating a consideration of the expenses of the parties, such as federal and state taxes and FICA taxes. While the legislature acknowledges that the expenditures of two-household divorced, separated, or non-formed families are different from intact family households, it 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. LSA-R.S. 9:345(A).

The Incomes Shares approach to child support guidelines incorporates a numerical schedule of support amounts. The schedule provides economic estimates of child-rearing expenditures for various income levels and numbers of children in the household. The schedule is composed of economic data utilizing a table of national averages, adjusted to reflect Louisiana’s status as a low-income state and to incorporate a self-sufficiency reserve for low-income obligors, to form the basic child support obligation. LSA-R.S. 9:315(B)(1). In intact families, the income of both parents is pooled and spent for the benefit of all household members, including the children. Each parent’s contribution to the combined income of the family [ (¡represents his relative sharing of household expenses. This same income sharing principle is used to determine how the parents will share a child support award. LSA-R.S. 9:315(B)(2).

The Louisiana Child Support Guidelines’ Schedule of Basic Child Support Obligations is set forth in LSA-R.S. 9:315.19, and there is a rebuttable presumption that the amount of child support obtained by use of the guidelines is the proper amount of child support. See LSA-R.S. 9:315.1(A). The court may deviate from the guidelines if their application would not be in the best interest of the child or would be inequitable to the parties. The court must give specific oral or ■written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts, and circumstances that warranted a deviation from the guidelines. The reasons must be made part of the record of the proceedings. LSA-R.S. 9:315.1(B)(1).

As provided in LSA-R.S. 9:B15.1(C), in determining whether to deviate from the guidelines, the court’s considerations may include: (1) that the combined adjusted gross income of the parties is not within the amounts shown on the schedule in LSA-R.S. 9:315.19; (2) the legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party’s household; (3) that in a case involving one or more families, consisting of children none of whom live in the household of the noncustodial or nondomiciliary parent, but who have existing child support orders (multiple families); (4) the extraordinary medical expenses of |7a party, or extraordinary medical expenses for which a part may be responsible, not otherwise taken into consideration under the guidelines; (5) an extraordinary community debt of the parties, (6) the need for immediate, and temporary support for a child when a full hearing on the issue of support is pending but cannot be timely held (in such cases, the court at the full hearing shall use the provisions of LSA-R.S. 9:315 et seq. and may redetermine support without tite necessity of a change of circumstances being shown); (7) the permanent or temporary total disability of a spouse, to the extent such disability diminishes his present and future earning capacity, his need to save adequately for uninsurable future medical costs, and other additional costs associated with such disability (such as transportation and mobility costs, medical expenses, and higher insurance premiums); and (8) any other consideration that would make application of the guidelines not. in the best interest of the child or children or inequitable to the parties.

In the instant case, the parties’ combined adjusted monthly gross income (more than $40,000.00 per month) exceeds the highest sum shown on the LSA-R.S. 9:315.19-schedule ($30,000.00 per month), and thus, in accordance with LSA-R.S. 9:315.1(C)(l)(b), the court must determine an amount of child’ support pursuant to LSA-R.S. 9:315.13(B)(1). Paragraph (B)(1) of LSA-R.S. 9:315.13 provides that if the combined adjusted gross income of the parties exceeds the highest level specified in the schedule contained in LSA-R.S. 9:315.19, the court must use its discretion, in setting the amount of the basic child support obligation, in accordance with the best interest of the child and the circumstances of each parent, as provided in Civil Code Article 141. Louisiana Civil Code Article 141 requires that child support be “based on the needs of the child and the ability of the parents to ^provide support.” Importantly, LSA-R.S. 9:315.13(B)(1) further states that “in no event shall it [the basic child support obligation] be less than the highest amount set forth in the schedule.” (Emphasis added.)

Ms. Hagen contends on appeal that the trial court erred by fixing Dr. Hagen’s child support obligation in this case “downward” to an amount less than the highest amount set forth in the child support guidelines. Dr. Hagen asserts that LSA-R.S. 9:315.8(E) authorizes a trial court to reduce the amount of child support owed by a nondomiciliary parent, based on the amount of time the child spends with him; LSA-R.S. 9:315.8(E) provides:

“Joint Custody” means a joint custody order that is not shared custody as defined in R.S. 9:315.9.
(1) In cases of joint custody, the court shall consider the period of time spent by the child with the nondomiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time.
(2) If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than seventy-three days, the court may order a credit to the child support obligation. A day for the purposes of this Paragraph shall be determined by the court; however, in no instance shall less than four hours of physical custody of the child constitute a day.
(3) In determining the amount of credit to be given, the court shall consider the following:
(a) The amount of time the child spends with the person to whom the credit would be applied. The court shall include in |9such consideration the continuing expenses of the domiciliary party-
(b) The increase in financial burden placed on the person to whom the credit would be applied and the decrease in financial burden on the person receiving child support.
(c) The best interests of the child and what is equitable between the parties.
(4) The burden of proof is on the person seeking the credit pursuant to this Subsection.
(5) Worksheet A reproduced in R.S. 9:315.20, or a substantially similar form adopted by local court rule, shall be used to determine child support in accordance with this Subsection.

In his oral reasons for judgment, the trial court stated that he was “deviating] from the schedule, because of ... the amount of time that Dr. Hagen has actual physical custody of the children, and because of the ninety-three (93%) percent of the expense[s] that he is paying.” Dr. Hagen maintains that LSA-R.S. 9:315.8(E) was properly applied to this case, while Ms. Hagen contends that the trial court should not have awarded less than the highest amount set forth in the LSA-R.S. 9:315.19 schedule for three children, which was $4,302.00 per month.

In this appeal, we are called upon to determine whether LSA-R.S. 9:315.13(B)(l)’s language, stating that “in no event” shall the basic child support obligation “be less than the highest amount” set forth in the LSA-jR.S.10 9:315.19 schedule, when the combined adjusted gross income of the parties exceeds the highest, level specified in the schedule, applies to the exclusion of LSA-R.S. 9:315.8(E)’s directive to the trial court to “consider the period of time spent by the child with the nondomieiliary party as a basis for adjustment to the amount of child support to be paid during that period of time.”

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9. 'When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. LSA-C.C. art. 10. The words of a law must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the law involves a technical matter, LSA-C.C. art. 11. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, LSA-C.C. art. 12. Laws on the same subject matter must be interpreted in reference to each other. LSA-C.C. art, 13. Words and phrases shall: be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. The word “shall” is mandatory and the word “may” is permissive. LSA-R.S. 1:3. When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. LSA-R.S. 1:4,

| nWhen interpreting a law, the court should give it the meaning the lawmaker intended. It is presumed that every word, sentence, or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the lawmaker inserted idle, meaningless, or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant, or useless. The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question that is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question that harmonizes and reconciles it with other provisions. A construction of a law that creates an inconsistency should be avoided when a reasonable interpretation can be adopted that will not do violence to the plain words of the law and will carry out the intention of the lawmaker. "When the expressions of a law are “dubious,” the most effectual way of discovering the true meaning of the law is to consider the reason and spirit of it, or the cause that induced the lawmaker to enact it. When a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is to be preferred over one that renders part thereof ridiculous or nugatory. If there is an irreconcilable conflict between the provisions of a law, only one provision can prevail. Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984). \nSee also Ransome v. Ransome, 2001-2361 (La.App. 1 Cir. 6/21/02), 822 So.2d 746, 752.

After a thorough review of the pertinent law, we find no ambiguity in the language of LSA-R.S. 9:315.13(B)(1) vis-á-vis LSA-R.S. 9:3158(E), when the overall statutory framework set forth in the “Guidelines for Determination of Child Support,” LSA-R.S, 9:315 et seq., is taken into account. The first step in calculating a child support obligation, pursuant to LSA-R.S. 9:315.2, is to combine the parties’ adjusted gross incomes. Then, each party’s proportionate share of the combined amount of the adjusted gross incomes is determined as a percentage (the amount obtained for each party is his or her percentage share of the combined adjusted gross income). LSA-R.S. 9:315.2(C). Next, the court determines the “basic child support obligation” amount from the schedule in LSA-R.S. 9:315.19, by using the combined adjusted gross income of the parties and the number of children involved in the proceeding. LSA-R.S. 9:315.2(D).

In the instant case, the “basic child support obligation” is determined in accordance with LSA-R.S. 9:315.13, since the Hagens’ combined adjusted income is higher (more than $40,000,00 per month) than the highest amount in the LSA-R.S. 9:315.19 schedule ($30,000.00 per month), Pursuant to LSA-R.S. 9:315.13, the trial court uses his discretion in setting the amount of the “basic child support obligation” in accordance with the best interest of the child and the circumstances of each parent, but “in no event” is the “basic child support obligation” set at an amount lower than the “highest amount set forth in the schedule.” The highest amount in the schedule for three children is $4,302.00. See LSA-R.S. 9:315.19,

Nevertheless, once the “basic child support obligation” ($4,302.00 in this case) is determined, the inquiry is not at an end. After the “basic child 11ssupport obligation” has been established, the “total child support obligation” is then calculated. See LSA-R.S. 9:315.2(E).

To accomplish this, the following adjustments are made to the “basic child support obligation:” adding net child care costs (per LSA-R.S 9:315.3); adding child/children’s health insurance premium cost (per LSA-R.S 9:315.4); adding uninsured extraordinary medical expenses, if agreed by the parties or ordered by the court (per LSA-R.S 9:315.5); adding other extraordinary expenses (such as private school tuition, expenses to enhance the health, athletic, social, or cultural development of the child, and transportation costs), if agreed by the parties or ordered by the court (per LSA-R.S 9:315.6); and deducting a child’s extraordinary income that is used to reduce the costs of a child’s basic needs (per to LSA-R.S 9:315.7 and LSA-R.S. 9:315.8(B)). The resulting sum is the “total child support obligation.” LSA-R.S. 9:315.8(A).

Each party’s share of the “total child support obligation” is then determined by multiplying his or her percentage share of combined adjusted gross income times the “total child support obligation.” LSA-R.S. 9:315.8(C). The party without legal custody or the nondomiciliary party owes his or her percentage share of the “total child support obligation” as a money judgment of child support to the custodial or domiciliary party. LSA-R.S. 9:315.8(D).

The adjustment authorized by LSA-R.S. 9:315.8(E), to be made if under a joint custody order the person ordered to pay child support has physical custody of the child for more than seventy-three days, is an adjustment that is made “to the amount of child support to be paid.” Although not directly stated in the statute, it is obvious that the “credit” authorized by LSA-R.S. 9:315.8(E) is applied against the nondomi-ciliary | ^parent’s proportional share of the “total child support obligation,” since this provision follows Paragraphs (A) through (D) of the same statute, LSA-R.S. 9:315.8 (which gives instructions on how the “total child support obligation” is calculated), and since Paragraphs (E) directly states that the credit is to be applied against the “amount of child support to be paid.”

In this case, the evidence presented showed that Dr. Hagen had physical custody of his twins about forty (40%) percent of the time, while he had Andrew about fifty (50%) percent of the time. The trial court stated that he reduced Dr. Hagen’s proportionate share of the total child support obligation, because of the amount of time that Dr. Hagen has actual physical custody of the children and because of the ninety-three (93%) percent of the expenses that he was ordered to pay. After reviewing the record on appeal, including the evidence presented by the parties, we cannot say the trial court erred in its award of child support for the period of February 9, 2010 through August 21, 2011.

CONCLUSION

For the reasons stated herein, the judgment of the trial court awarding Annette Bilello Hagen child support against Dr. David Hagen for the period of February 9, 2010 through August 21, 2011 is affirmed. All costs of this appeal are to be borne by Annette Bilello Hagen.

AFFIRMED.

McDONALD, J., dissents.

      . The domiciliary status of Stephen was not specified in a judgment, as he was away at boarding school at the time of his parents’ separation. However, it was evident from the record that Dr. Hagen ultimately assumed custody of Stephen during the remainder of his minority.

      . Though we note that there was extensive litigation on a variety of other issues between the parties, only relevant procedural history is set forth herein.

      . As stated in LSA-R.S. 9:315.1(C)(1)(a) and (b), if the combined adjusted gross income of the parties is less than the lowest sum shown on the schedule, the court shall determine an amount of child support based on the facts of the case, except that the amount awarded shall not be less than the minimum child support provided in R.S. 9:315.14, but, if the combined adjusted gross income of the parties exceeds the highest sum shown on the schedule, the court shall determine an amount of child support as provided in R.S. 9:315.13(B)(1).

      . The circumstances of the parents and the child’s best interest are determinative considerations, as are the parents’ ability to pay and the lifestyle that the child otherwise would have enjoyed if the parents had not separated. Therefore, children are entitled to the same standard of living that they would have enjoyed if they lived with the nondomiciliary parent, if the nondomiciliary parent’s financial circumstances are sufficient to permit it. Thus, one parent's comfortable lifestyle should be extended to his minor children, who should not be disadvantaged in their lifestyle because of their parents’ divorce and their living primarily with the other parent. See Dejoie v. Guidry, 2010-1542 (La.App. 4 Cir. 7/13/11), 71 So.3d 1111, 1122. writ denied, 2011-1779 (La.9/2/11) 68 So.3d 520.

      . Paragraph B(l) of LSA-R.S. 9:315.13 provides:
      If the combined adjusted gross income of the parties exceeds the highest level specified in the schedule contained in R.S. 9:315.19, the court:
      (1) Shall use its discretion in setting the amount of the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent as provided in Civil Code Article 141, but in no event shall it be less than the highest amount set forth in the scheduled]

      . We note that the trial court failed to comply fully with LSA-R.S. 9:315.l(B)(l)'s directive that "[t]he court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings.” (Emphasis added.) There is no finding in the record as to what amount would have been required under a mechanical application of the guidelines. Further, the trial judge failed to comply with LSA-R.S. 9:315.3, 315.4, and 315.6, in that he did not add the costs of net child care, health insurance premiums, or the expenses of tuition, registration, books, and supply fees of the children's private school to the basic child support obligation. (In this case, the trial court ordered Dr. Hagen to pay 93% of these costs, but did not include these costs in the calculation of the total child support obligation.) Nor did the trial court follow LSA-R.S. 9:315.8(E)(5)’s instruction that "Worksheet A reproduced in R.S. 9:315.20, or a substantially similar form adopted by local court rule, shall be used to determine child support in accordance with this Subsection.” However, in this particular case, we were able to resolve the issues presented on appeal, despite the deficiencies in the trial court record. Therefore, in the interest judicial economy and expediting the conclusion of this child support dispute, we will forgo remanding for compliance with LSA-R.S. 9:315.1(B)(1), LSA-R.S. 9:315.3, 315.4, 315.6, LSA-R.S. 9:315.8(E)(5), and LSA-R.S. 9:315.20.


text:
    L.A. HOMES, INC. v. FIRST NATIONAL BANK USA.
    No. 12-C-851.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 21, 2012.
    Mark C. Landry, Attorney at Law, Me-tairie, LA, for Relator.
    Jan M. Hayden, Camalla M. Kimbrough, Attorneys at Law, New Orleans, LA, for Respondent.
    MARC E. JOHNSON, Judge, MARION F. EDWARDS, Chief Judge, ROBERT A. CHAISSON, Judge.
   hWRIT GRANTED

Plaintiff/respondent, L.A. Homes, Inc. (“L.A. Homes”), filed a lawsuit against defendant/relator, First National Bank USA (“FNB”), for breach of contract and specific performance. In its petition,' L.A. Homes alleged it had defaulted on two promissory notes payable to FNB that were secured by multiple indebtedness mortgages on several properties. It further alleged it entered into an agreement with FNB through various email exchanges for a elation en paiment wherein FNB agreed to accept the mortgaged properties and $50,000 in cash in full satisfaction of L.A.’s Homes’ debts.

FNB filed an exception of no cause of action asserting L.A. Homes failed to allege the existence of an agreement that complies with La. R.S. 6:1122, or the Louisiana Credit Agreement Statute, and therefore the petition failed to state a cause of action against FNB. After a hearing, the trial court overruled the exception of no cause of action. The trial court reasoned that L.A. Homes alleged sufficient facts to state a cause of action for breach of contract. FNB filed this writ application seeking review of the trial court’s ruling on its exception of no cause of action.

Under La. R.S. 6:1122, “[a] debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” [Emphasis added.] A “creditor” is defined as “a financial institution or any other type of creditor that extends credit or extends a financial accommodation under a credit agreement with a debtor.” La. R.S. 6:1121. A “debtor” is “a person or entity that obtains credit or seeks a credit agreement with a creditor or who owes money to a creditor.” Id. A “credit 12agreement” is “an agreement to lend or forbear repayment of money or goods or to otherwise extend credit, or make any other financial accommodation.” Id.

The terms of the Louisiana Credit Agreement Statute clearly apply to the alleged facts of this case. In its petition, L.A. Homes alleged FNB is a bank and that L.A. Homes executed a promissory note payable to FNB that was secured by a multiple indebtedness mortgage. FNB is a “creditor,” L.A. Homes is a “debtor,” and any offer to modify the payments under the promissory notes through a dation en paiment falls under the definition of “credit agreement” as a type of “any other financial accommodation.”

L.A. Homes never alleged the agreement confected through email was signed by both parties. Further, the emails evidencing the alleged agreement, which are attached to the petition, are not signed by both parties. Therefore, under La. R.S. 6:1122, L.A. Homes is precluded from maintaining any action against FNB, including one for breach of contract. See Jesco Construction Corp. v. Nationsbank Corp., 02-57 (La.10/25/02), 830 So.2d 989; Bolen v. Dengel, 340 F.3d 300 (5th Cir. 2003), cert. denied, 541 U.S. 959, 124 S.Ct. 1714, 158 L.Ed.2d 399 (2004) (“[because Dengel did not plead that he and his wife signed the credit agreement ... as required by La. R.S. 6:1122, Dengel may not maintain an action for the alleged breach.”); and, Bass v. Chase Home Finance L.L.C, 2010 WL 3922709 (E.D.La.2010) (not reported).

Accordingly, we find the trial court erred in overruling FNB’s exception of no cause of action. Therefore, FNB’s writ application is granted and judgment is entered sustaining FNB’s exception of no cause of action.