text:
    Creig and Debbie MENARD, Individually, and on Behalf of their Minor Son, Giles Menard v. LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION.
    No. 2009 CA 0800.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.
    Writ Denied April 5, 2010.

      John A. Hernandez, III, Lafayette, Louisiana, for Plaintiffs/Appellants Creig and Debbie Menard, individually, and on behalf of their minor son, Giles Menard.
    R. Bradley Lewis, Bogalusa, Louisiana, for Defendant/Appellee Louisiana High School Athletic Association, Inc.
    Before DOWNING, GAIDRY, and McClendon, jj.
   GAIDRY, J.

12The parents of a high school athlete appeal a judgment dismissing their petition for injunctive relief and damages on the peremptory exception of lack of subject matter jurisdiction of the defendant, the Louisiana High School Athletic Association, Inc. (the LHSAA). We dismiss the appeal in part as moot, amend the judgment in part, and affirm the judgment as amended, for the reasons stated below.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs, Creig Menard and Debbie Menard, are the parents of Giles Menard. At the time they instituted this action, Giles was 17 years old and a student at Lafayette High School in Lafayette, Louisiana. Giles transferred to Lafayette High School in January 2008 after previously attending Abbeville High School in Vermilion Parish. While attending Abbeville High School, he played varsity football until he was injured in November 2007.

After Giles began to attend Lafayette High School, a request for a determination of his eligibility to play football for that school was made. On February 25, 2008, the LHSAA ruled that there was not a bona fide change of plaintiffs’ residence under its rules, and that accordingly Giles was ineligible under its “transfer rule” to play football for Lafayette High School during his initial year of attendance, which happened to be his senior year.

Plaintiffs instituted this litigation by filing a petition in Lafayette Parish, seeking a temporary restraining order and further injunctive relief against the LHSAA. In response, the LHSAA filed declinatory, dilatory, and peremptory exceptions. On September 11, 2008, the trial court in Lafayette Parish signed a consent judgment, sustaining the declinatory |3exception on the objection of improper venue, and transferring the action to East Baton Rouge Parish.

Following the change in venue, plaintiffs filed a supplemental and amending petition on October 14, 2008, reiterating their claim for injunctive relief and adding an alternate claim for damages in the event that no injunctive relief was granted allowing Giles to play football during his senior year at Lafayette High School.

The LHSAA’s remaining exceptions were heard on October 21, 2008. Noting that the objection of insufficiency of service of process of the dilatory exception was withdrawn by the LHSAA, the trial court sustained the objection of lack of subject matter jurisdiction and dismissed plaintiffs’ action under the peremptory exception, but pretermitted determination of the remaining objections under the dilatory and peremptory exceptions.

Plaintiffs appeal, contending that the trial court erred in sustaining the objection of lack of subject matter jurisdiction asserted in the LHSAA’s peremptory exception.

DISCUSSION

Injunctive Relief

It is undisputed by the parties that Giles’s senior academic year has ended and that he has graduated from high school. On the record before us, plaintiffs’ claims for injunctive relief are therefore moot. See Johansen v. La. High Sch. Athletic Ass’n, 04-0937, p. 6 (La.App. 1st Cir.6/29/05), 916 So.2d 1081, 1087. When an appeal is taken from an order denying injunctive relief, and the act sought to be enjoined is accomplished pending appeal, the appeal will be dismissed as moot. Silliman Private Sch. Corp. v. Shareholder Group, 00-0065, p. 5 (La.App. 1st Cir.2/16/01), 789 So.2d 20, 23, writ denied, 01-0594 (La.3/30/01), 788 So.2d 1194. Accordingly, we ^dismiss plaintiffs’ appeal in part, to the extent that it seeks injunctive relief. Thus, we proceed to examine the merits of the trial court’s judgment dismissing plaintiffs’ remaining claims for damages based upon lack of subject matter jurisdiction.

Subject Matter Jurisdiction

Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. La. C.C.P. art. 3.

Plaintiffs challenge the substance of the transfer rule, the LHSAA’s interpretation of the rule as applied to the underlying facts, and its conclusion under the rule that Giles’s residence in Lafayette was not the result of a bona fide change in residence. The trial court was correct in concluding that it lacked subject matter jurisdiction to determine those issues, which clearly relate to the internal affairs of a voluntary association. As we noted in Johansen, 04-0937 at p. 12, 916 So.2d at 1090, the LHSAA’s actions in investigating eligibility of student athletes and enforcing its own internal regulations are clearly not conducted under color of state law. In Johansen, we also made brief reference to, but did not specifically address, the applicability of 36 U.S.C. § 220526, part of the Amateur Sports Act, 36 U.S.C. § 220501, et seq. Id., 04-0937 at p. 3 n. 1, 916 So.2d at 1085 n. 1. 36 U.S.C. § 220526(a) provides, in pertinent part:

An amateur sports organization that conducts amateur athletic competition shall have exclusive jurisdiction over that competition if participation is restricted to a specific class of amateur athletes, such as high school students ....

LWe find, as contended by the LHSAA, that 36 U.S.C. § 220526(a) serves to preempt plaintiffs’ claims for damages under Louisiana law relating to Giles’s eligibility to play football under the LHSAA’s rules, including the transfer rule, and deprived the trial court of subject matter jurisdiction regarding the merits, interpretation, and enforcement of the LHSAA’s internal rules and regulations. See Slaney v. Internat’l Amateur Athletic Fed’n, 244 F.3d 580, 594-96 (7th Cir.2001), and Lee v. U.S. Taekwondo Union, 331 F.Supp.2d 1252, 1255-59 (D.Ct.Haw.2004).

However, we disagree with the trial court’s conclusion that it lacked subject matter jurisdiction to determine the viability and merits of plaintiffs’ claims for damages for deprivation of constitutional rights. See Chabert v. La. High Sch. Athletic Ass’n, 323 So.2d 774, 777-78 (La.1975). See also Niles v. University Interscholastic League, 715 F.2d 1027, 1029-30 (5th Cir.1983). In that respect, the trial court erred insofar as it dismissed those claims on the objection of lack of subject matter jurisdiction. However, for reasons similar to those articulated by the trial court in its oral reasons for judgment, we conclude that the LHSAA’s objection of no cause of action in its peremptory exception had merit. Accordingly, we notice the failure to state a cause of action on our own motion, as authorized by La. C.C.P. art. 927(B), and sustain the peremptory exception on that basis, as explained below.

Due Process

To prevail on their due process claim, plaintiffs must show the existence of some property or liberty interest which has been adversely affected by state action. Brennan v. Bd. of Trustees for Univ. of La. Sys., 95-2396, p. 9 (La.App. 1st Cir.3/27/97), 691 So.2d 324, 330. In some circumstances and for some purposes, a private organization or association | ^organizing and regulating public school activities, including athletic competition, may be considered a “state actor.” See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001), and La. High Sch. Athletic Ass’n v. St. Augustine High Sch., 396 F.2d 224, 227 (5th Cir.1968).

State law defines what constitutes a property interest subject to procedural due process protection. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). To have a property interest protected by due process, a person must have more than an abstract need or desire for it. He must have a legitimate claim of entitlement to it rather than a unilateral expectation of it. Id. The due process clause of the Fourteenth Amendment does not insulate a citizen from every injury at the hands of the state. Mitchell v. La. High Sch. Athletic Ass’n, 430 F.2d 1155, 1157-58 (5th Cir.1970). In Walsh v. La. High Sch. Athletic Ass’n, 616 F.2d 152 (5th Cir.1980), the plaintiff parents challenged the LHSAA’s transfer rule. In rejecting the challenge as “outside the protection of due process,” the court squarely held that “[a] student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement.” Id. at 159-60.

In their petition, plaintiffs alleged that “Giles is an outstanding athlete and will probably be awarded an athletic scholarship to play football in college should [he] be allowed to play football.” The possibility of obtaining a college athletic scholarship based upon participation in high school athletics simply does not constitute a property interest or right protected by due process, but rather a speculative and uncertain expectation or opportunity. Johansen, 04-0937 at p. 8, 916 So.2d at 1088; Marino v. Waters, 220 So.2d 802, 806 (La.App. 1st Cir.1969); Sanders v. La. High Sch. Athletic Ass’n, 242 So.2d 19, 28 (La.App. 3rd Cir.1970). See also Ind. High Sch. Athletic Ass’n, Inc. v. Carlberg, 694 N.E.2d 222, 241 n. 26 (Ind.1997).

The United States Supreme Court has clarified the nature of “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,”’ and protected by substantive due process. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772 (1997). Participation in interscholastic athletics does not rise to the level of fundamental rights and liberties so essential that “neither liberty nor justice would exist if they were sacrificed,” as described in Glucksberg. Id. See Johansen, 04-0937 at p. 9 n. 3, 916 So.2d at 1088 n. 3, citing Carlberg, 694 N.E. at 242.

In summary, plaintiffs’ son had no procedural or substantive due process right to participate in interscholastic sports regulated by the LHSAA. See Johansen, 04-0937 at p. 9, 916 So.2d at 1088. Because a student athlete has no liberty or property interest in participating in interscholastic athletics, plaintiffs cannot prevail on the merits of their claim that either Giles or they were deprived of due process by reason of his being declared ineligible to compete within the LHSAA system. See Brennan, 95-2396 at p. 9, 691 So.2d at 330. As we held in Johansen, no amendment to the factual allegations of plaintiffs’ petition could cure this fundamental flaw in that purported cause of action. Thus, plaintiffs are not entitled under La. C.C.P. art. 934 to amend their petition to attempt to state a violation of due process. See Johansen, 04-0937 at p. 9, 916 So.2d at 1088, and American Int’l Gaming Ass’n, Inc. v. La. Riverboat Gaming Comm’n, 00-2864, p. 17 (La.App. 1st Cir.9/11/02), 838 So.2d 5, 18.

| ¡¡Equal Protection of the Law

The Fourteenth Amendment of the U.S. Constitution and La. Const, art. I, § 3 provide that all persons are entitled to equal protection of the law, and require that “persons similarly situated receive like treatment.” Whitnell v. Silverman, 95-0112, pp. 9-10 (La.12/6/96), 686 So.2d 23, 29-30. But the equal protection provisions of the federal and state constitutions do not require absolute equality or precisely equal advantages. McCormick v. Hunt, 328 So.2d 140, 142 (La.1976).

The guarantees of equal protection under the federal and state constitutions differ, and therefore usually require separate analysis as to whether each has been violated. Progressive Sec. Ins. Co. v. Foster, 97-2985, p. 17 (La.4/23/98), 711 So.2d 675, 685-86. However, where no fundamental or express constitutional right or “suspect” class (such as race or religion), nor any other enumerated class such as birth, age, sex, culture, or political affiliation, is alleged as the basis for discrimination, the use of another classification is subject to the minimal or lowest level of scrutiny under the guarantees of both constitutions. American Int’l Gaming Ass’n, 00-2864 at p. 15, 838 So.2d at 17. Such a classification is unconstitutional only if proven to be not rationally related to any legitimate state interest. Progressive Sec. Ins. Co., 97-2985 at pp. 18-19, 711 So.2d at 686.

In Genusa v. Holy Cross College, Inc., 389 So.2d 908, 909 (La.App. 4th Cir.1980), the purpose of the transfer rule was described:

The purpose of the transfer rule is prophylactic in nature; without it high schools would be free to recruit athletes with a laissez-faire attitude. It protects the integrity of athletic programs and prevents transgressions by unscrupulous participants.

As we did in Johansen, we agree with the observation of the court in Genusa that “[t]he good intent of the rule is evident.” Id. The classification made by |9the transfer rule and the bona fide change of residence rule is not arbitrary or inherently suspect, and does not encroach upon a fundamental constitutional right. See Johansen, 04-0937 at p. 10, 916 So.2d at 1089, and Chabert, 323 So.2d at 779-80.

As emphasized by the LHSAA, plaintiffs’ petition fails to set forth any factual basis for a violation of federal or state equal protection rights. See American Int’l Gaming Ass’n, 00-2864 at pp. 16-17, 838 So.2d at 17. Our review of the pleadings, the record, and the parties’ briefs discloses no possible grounds supporting plaintiffs’ conclusory assertion of violation of equal protection rights. Indeed, plaintiffs’ brief on appeal does not set forth any substantive argument relating to equal protection, as opposed to due process. We conclude, in our considered discretion, that the grounds of the objection of no cause of action for violation of equal protection rights cannot conceivably be removed by amendment of the petition under La. C.C.P. art. 934. See, e.g., Johnson v. State, 06-2024, p. 11 n. 2 (La.App. 1st Cir.6/8/07), 965 So.2d 866, 872 n. 2, writ denied, 07-1784 (La.11/9/07), 967 So.2d 507. We accordingly affirm the trial court’s judgment, as amended, as we sustain the objection of no cause of action raised in the peremptory exception as to the equal protection claim.

DECREE

The appeal of the plaintiffs-appellants, Creig Menard and Debbie Menard, is dismissed in part as moot with regard to the claims for injunctive relief. The judgment of the trial court is affirmed in part insofar as it sustained the objection of lack of subject matter jurisdiction of plaintiffs’ claims for damages under Louisiana law relating to the substance, interpretation, and enforcement of the internal rules of the defendant-appellee, the Louisiana High School Athletic Association. The judgment is |inamended in part to sustain the objection of no cause of action of the peremptory exception as to the plaintiffs’ remaining claims, and, as amended, the judgment of dismissal is affirmed. All costs of this appeal are assessed to the plaintiffs-appellants.

APPEAL DISMISSED IN PART AS MOOT; JUDGMENT AFFIRMED IN PART AND AMENDED IN PART ON COURT’S MOTION, AND, AS AMENDED, AFFIRMED.


source: Caselaw Access Project

author: McClendon, j. WELCH, J.,

license: Public Domain

text:
    The Succession of William Edward FAGET. Pier Marie Faget Jenkins, as the Independent Administratrix of the Succession of William Edward Faget v. Audrey Menard Faget.
    Nos. 2008 CA 2422, 2008 CA 2423.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Pierre Y. Miller, II, Patrick Miller, New Orleans, Louisiana, and Albert J. Derbes, III, Eric J. Derbes, Metairie, Louisiana, for Plaintiffs/Appellants, Pier Marie Faget Jenkins, individually and as independent administratrix of the Succession of William E. Faget, Sr., Vivian Adelaide Faget and William Edward Faget, Jr.
    Harry P. Pastuszek, Jr., David S. Pittman, Linnette C. Goodly, Covington, Louisiana, for Defendant/Appellee, Audrey Me-nard Colomb Faget.
    Before PARRO, GUIDRY, DOWNING, McClendon and welch, jj.
   McClendon, j.

hPier Marie Faget Jenkins, individually and as independent administratrix of the Succession of William E. Faget, Sr., Vivian Adelaide Faget, and William E. Faget, Jr. (the Faget children) appeal the judgment of the trial court, which granted the motion for partial summary judgment filed by Audrey Menard Faget, denied the Faget children’s motion for summary judgment, and declared Audrey Faget a one-half owner in indivisión of the family home and its furnishings. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Dr. William E. Faget married Audrey Menard Faget on December 22,1977. Audrey Faget was Dr. Faget’s second wife. On December 15, 1977, prior to their marriage, they entered into a matrimonial agreement in which they agreed to remain separate in property. Dr. Faget remained married to and continued to reside with Audrey Faget until his death on May 12, 2003.

In late November 1992, Dr. Faget suffered a stroke, was taken to St. Tammany Parish Hospital, and was admitted into the intensive care unit. While in the hospital, on November 30, 1992, Dr. Faget signed a living will and a power of attorney in favor of Audrey Faget. Also, on November 30, 1992, Dr. Faget and Audrey Faget executed a document entitled “Residence Agreement,” by authentic act, regarding the family home and its furnishings. At the time the residence agreement was executed, the family home was the separate immovable property of Dr. Faget. The agreement provided that it was the 1 ..intention and wish of the parties that the residence and its furnishings be treated as community property. The residence agreement was not filed into the public records until September 5, 2003, after Dr. Faget’s death.

Dr. Faget was survived by three adult children from his first marriage. On July 8, 2003, the Faget children filed a petition to open the succession of their father and for the appointment of Pier Marie Faget Jenkins as independent administratrix. Thereafter, on January 13, 2005, Pier Marie Faget Jenkins, as the independent ad-ministratrix of the Succession of William E. Faget, filed a petition for a revendicato-ry action against Audrey Faget, seeking to be declared owner of the property in question and seeking an order compelling Audrey Faget to account for and deliver said property. On April 22, 2005, the revendi-catory action was transferred to and consolidated with the succession proceeding.

On October 21, 2005, Audrey Faget filed a motion for partial summary judgment in the consolidated proceedings seeking to enforce the provisions of the residence agreement and seeking a judgment declaring that she owned one-half of the family residence and one-half of its furnishings. Thereafter, the Faget children filed a cross-motion for summary judgment attacking the validity of the residence agreement. On April 5, 2006, the trial court heard oral arguments on the cross-motions for summary judgment. The trial court issued reasons for judgment on April 25, 2006, and signed a judgment in the succession proceeding, on May 9, 2006, granting the motion for partial summary judgment filed by Audrey Faget and denying the Faget children’s motion for summary judgment. The court further declared Audrey Faget the owner in indivisión of one-half of the family residence and one-half of all furnishings therein since November 30, 1992. Additionally, the trial court declared Audrey Faget to be the usufructu-ary for life over the remaining one-half of the immovable property and its furnishings, since May 12, 2003, with the Faget children being the naked owners of the remaining one-half, subject to the usufruct of Audrey Faget. The Faget children appealed from this judgment.

14On September 19, 2007, this court dismissed the appeal for lack of jurisdiction, finding that the judgment at issue was not designated as a final judgment for purposes of appeal, pursuant to LSA-C.C.P. art. 1915 B. In re Succession of Faget, 06-2159, 06-2160 (La.App. 1 Cir. 9/19/07), 984 So.2d 7. On July 14, 2008, pursuant to a motion to designate the judgment as final, the trial court issued reasons for judgment granting the motion and designating the judgment as final. Judgment was signed on August 4, 2008, and the Faget children appealed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” LSA-C.C.P. art. 966 A(2).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

A matrimonial regime is a system of principles and rules governing the ownership and management of the property of married persons as between themselves and toward third persons. LSA-C.C. art. 2325. A matrimonial regime | Bmay be legal, contractual, or partly legal and partly contractual. LSA-C.C. art. 2326. The legal regime is the community of acquets and gains. LSA-C.C. art. 2327. In a community of acquets and gains regime, each spouse owns a present undivided one-half interest in the community property. LSA-C.C. art. 2336. A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect. LSA-C.C. art. 2328. Additionally, LSA-C.C. art. 2329 provides, in pertinent part:

Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.
Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial l'egime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.

In this matter, the Faget children initially argue that the trial court erred in granting summary judgment as a matter of law in favor of Audrey Faget because court approval was required for the residence agreement to be legally effective. Specifically, the Faget children contend that the residence agreement obviously was an attempt to modify the previous contractual regime of Dr. Faget and Audrey Faget and was not a total adoption of the legal regime. Therefore, according to the Faget children, court approval of the residence agreement was required pursuant to LSA-C.C. art. 2329, and because it was not obtained, the attempt to modify the matrimonial regime by the residence agreement was invalid. Audrey Faget argues, however, that the residence agreement validly modified the matrimonial regime and any assertion that court approval was required is simply incorrect. She asserts that LSA-C.C. art. 2329 clearly permits parties to modify a separate property regime to create, in whole or in part, a _|¿egal regime without prior court approval. Alternatively, she asserts that the residence agreement was a donation pursuant to LSA-C.C. art. 2343.1.

Clearly, the residence agreement expressed an intent and desire to treat only the family home and its furnishings as community property. In all other respects, the matrimonial regime established by Dr. Faget and Audrey Faget prior to their marriage was to remain in effect. Thus, all other assets were to remain the separate property of Dr. Faget or Audrey Faget. Therefore, the agreement sought to establish a mixed regime, partly legal and partly contractual, as defined in LSA-C.C. art. 2326. Hence, the issue before us is whether the residence agreement herein, which applies to only some of the spouses’ assets, modified the separate property regime that existed between Dr. Faget and Audrey Faget or subjected them to a legal regime as set forth in LSA-C.C. art. 2329.

The legislature in enacting LSA-C.C. art. 2329 specifically provided that spouses can enter into a matrimonial agreement that modifies or terminates a matrimonial regime during their marriage but only upon joint petition and a finding by the court that it serves their best interests and that they understand the governing principles and rules. However, the legislature permitted spouses to subject themselves to the legal regime by a matrimonial agreement at any time without court approval. Article 2329 is clear and unambiguous. The legislature created three specific categories of matrimonial regimes and designated only one of those three as not requiring coui’t approval during marriage. Thus, because the residence agreement in this matter sought to establish a partly legal and a partly contractual regime, court approval was necessary under Article 2329.

Nonetheless, Audrey Faget cites the cases of O’Krepki v. O’Krepki, 529 So.2d 1317 (La.App. 5 Cir.), writ denied, 532 So.2d 767 (La.1988), and Martello v. Martello, 06-0594 (La.App. 1 Cir. 3/23/07), 960 So.2d 186, in |7support of her argument that court approval was not necessary. However, we find these cases to be clearly distinguishable. Unlike the facts in the O’Krepki and Martello decisions, the present matter is not one in which the parties wished to terminate their contractual matrimonial regime in order to establish the legal regime of a community of acquets and gains. The residence agreement in this case attempted to remove only the family home and its furnishings from the contractual regime of separation of property and transform them into community assets. Otherwise, the parties were to remain separate in property.

Audrey Faget makes the alternative argument that the residence agreement was a donation by one spouse to another pursuant to LSA-C.C. art. 2343.1. Article 2343.1 provides:

The transfer by a spouse to the other spouse of a thing forming part of his separate property, with the stipulation that it shall be part of the community, transforms the thing into community property. As to both movables and im-movables, a transfer by onerous title must be made in writing and a transfer by gratuitous title must be made by authentic act. (Emphasis added.)

In all cases referring to Article 2343.1, a community property regime already existed. See, e.g., Smith v. Smith, 95-0913 (La.App. 1 Cir. 12/20/96), 685 So.2d 649; Succession of Davis, 496 So.2d 549 (La.App. 1 Cir.1986). See also Goines v. Goines, 08-42 (La.App. 5 Cir. 6/19/08), 989 So.2d 794; In re Succession of Allen, 05-0745 (La.App. 4 Cir. 1/4/06), 921 So.2d 1030; Landry v. Landry, 610 So.2d 1045 (La.App. 3 Cir.1992). In this matter, the spouses contracted out of a community property regime prior to their marriage. We cannot find that the residence agreement amounted to a donation that “shall be part of the community” of acquets and gains pursuant to LSA-C.C. art. 2343.1, where no community existed. It was the choice of the legislature to use “the community” as opposed to “a community.” Our interpretation of Article |⅜2343.1 requiring the existence of a community of acquets and gains in order to donate to the community, is consistent with LSA-C.C. art. 2329. Otherwise, LSA-C.C. art. 2343.1 could be used to circumvent the requirement of court approval for matrimonial agreements which modify the matrimonial regime. We do not believe that was what the legislature intended. Accordingly, we find this argument to be without merit.

Because we conclude that the modification of the contractual regime of separation of property by the residence agreement did not subject Dr. Faget and Audrey Faget to a total legal regime, as contemplated by LSA-C.C. art. 2329, we find that court approval was required. Unquestionably, said court approval was not sought nor was any evidence presented that court approval was obtained. Consequently, the residence agreement did not meet the requirements necessary for a matrimonial agreement to be valid as set forth in Article 2329 and cannot be recognized as such. Additionally, the residence agreement was not a donation under LSA-C.C. art. 2341.1, as there was no existing legal regime. Accordingly, we conclude the trial court erred in granting summary judgment in favor of Audrey Faget.

CONCLUSION

For the above and foregoing reasons, the August 4, 2008 judgment in favor of Audrey Faget is reversed. This matter is remanded for further proceedings. Costs of this appeal are assessed to Audrey Fag-et.

REVERSED AND REMANDED.

WELCH, J., dissents and assigns reasons.

DOWNING, J., dissents.

WELCH, J.,

Dissenting.

hi respectfully disagree with the majority opinion in this case and would affirm the judgment of the trial court. Essentially, the majority concludes that the residence agreement is not enforceable because it is a matrimonial agreement that sought to modify the parties’ existing contractual separate property regime, and pursuant to La. C.C. art. 2329, required a finding by the court that the modification served their best interest and that the parties understood the governing principles and rules. I believe the majority’s decision in this regard is legally incorrect.

Louisiana Civil Code article 2329 provides in pertinent part as follows:

Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interest and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.

In order to conclude, as the majority has done, that court approval of the residence agreement was necessary, the residence agreement must be classified, under La. C.C. art. 2329, as “a matrimonial agreement that modifies or terminates a matrimonial regime.” A matrimonial regime is defined in La. C.C. art. 2325 as a 12“system of principles and rules governing the ownership and management of property of married persons.” The reference to “system” contemplates a “methodic arrangement of rules rather than an isolated or single transaction.” Spaht and Hargrove, Matnmmial Regimes, § 8.6 at 788, 16 Louisiana Civil Law Treatise (2007). Thus, a matrimonial agreement requiring judicial approval “is the kind of agreement that affects the classification and management of future acquisitions.” Id.

In this case, the residence agreement provided as follows:

[i]t has been the intention and wish of each appearer that though separate in property per [mjarriage [cjontract dated December 15, 1977, the residence be treated as community, and that in the event of the death of either party, that individual 50% interest in the residence and all furnishings is to be inherited by that individuals’ children.

Therefore, the effect of the residence agreement was limited to a single asset, which was already owned by Dr. Faget, and thus was an isolated transaction. It did not establish any rules regarding the classification and management of any future assets. Accordingly, I do not believe that the residence agreement was a matrimonial agreement that modified the parties’ matrimonial regime.

Furthermore, even if the residence agreement could be construed as a matrimonial agreement, La. C.C. art. 2329 provides that spouses may “subject themselves to the legal regime at anytime without court approval.” If spouses may subject themselves to the legal regime, in its entirety, at any time without court approval, then logically, it follows that they may subject a specific asset to the legal regime without court approval, i.e. the greater includes the lesser.

Lastly, at the very least, I believe that the residence agreement meets the definition of a donation by one spouse under La. C.C. art. 2343.1. The majority reasons that the residence agreement cannot be a donation to the community under La. C.C. art. 2343.1 as a community property regime must already exist in order | ;ifor that article to apply. However, I do not see any such requirement under the specific terms of that article. All the article requires is that the thing to be transferred form part of the spouse’s separate property and, and if the transfer is by onerous title, it must be in writing, and if the transfer is by gratuitous title, it must be made by authentic act. There is no dispute that prior to the execution of the residence agreement, the residence was Dr. Faget’s separate property. The residence agreement clearly demonstrated Dr. Faget’s intent that his separate residence be treated thenceforth as a community asset and the residence agreement was made an authentic act. Thus, the residence agreement meets the requirements of La. C.C. art. 2343.1.

Thus, I respectfully dissent.

      . While we note that the 1977 matrimonial agreement was not made part of the record in this matter, it is undisputed that Dr. Faget and Audrey Faget contracted to remain separate in property. Further, portions of the deposition of Audrey Faget, submitted in support of the Faget children's motion for summary judgment, show that Dr. Faget and Audrey Faget "would be separate and apart in [their] finances.” When asked if there were any ways in which she and Dr. Faget did not keep their finances separate, Audrey Faget testified diat she and Dr. Faget filed their income taxes together. She stated that if one spouse had a loss for income tax purposes, the other spouse would claim the loss to offset the gains of the other spouse. Audrey Faget also testified that she and Dr. Faget had made investments together, but those investments were all completed prior to his death. Each spouse had their own separate checking accounts, savings accounts, and stock portfolios. Audrey Faget testified that one of her checking accounts had Dr. Faget’s name on it and was the account he put $500 in as a monthly allowance for Audrey Faget to spend on general household expenses. In all other respects, Audrey Faget testified that they remained separate and that the immovable property on which the house in question was built was acquired by Dr. Faget before they married and was titled separately in his name.

      . Dr. Faget died intestate.

      . Louisiana Civil Code article 2329 was enacted by 1979 La. Acts, No. 709, § 1, effective January 1, 1980.

      . Article 2343.1 was added by 1981 La. Acts, No. 921, § 2, and clarifies the law. See Revision Comment (a). Revision Comment (b) provides:
      Under this article, a spouse may convey to the other spouse a thing that forms part of the transferor's separate property, with the stipulation that the thing shall be part of the community. The thing may be a thing that the transferor owns as sole owner or an undivided interest. In effect, the trans-feror conveys to the other spouse one-half of what he owns and retains the other half as co-owner under the regime of acquets and gains.

      . As no issue was raised as to whether the residence agreement was a donation other than a donation to the community under LSA-C.C. art. 2343.1, we do not address that issue.


author: PETTIGREW, J.

text:
    RED STICK STUDIO DEVELOPMENT, L.L.C. v. STATE of Louisiana by and through the DEPARTMENT OF ECONOMIC DEVELOPMENT; State of Louisiana by and through the Division of Administration; & State of Louisiana by and through the Office of Entertainment Industries Development.
    No. 2009 CA 1347.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.
    Rehearing Granted for Limited Purpose of Correcting Opinion; Rehearing Denied March 12, 2010.

      Mary Olive Pierson, V. Thomas Clark, Jr., Michael J. Busada, Baton Rouge, LA, for Plaintiff-Appellee, Red Stick Studio Development, L.L.C.
    W. Scott Keaty, Paul H. Spaht, Leu Anne Lester Greco, Stephanie Gray La-Grange, Carlos A. Romanach, Pamela Miller Perkins, Baton Rouge, LA, for Defendants-Appellants State of Louisiana through Division of Administration, State of Louisiana through Department of Economic Development & State of Louisiana through Office of Entertainment Industry Development.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

| gDefendants/appellants, the State of Louisiana, through the Division of Administration, the State of Louisiana, through the Department of Economic Development, and the State of Louisiana, through the Office of Entertainment Industries Development (“the State”), appeal from the trial court’s judgment in favor of plaintiff/appellee, Red Stick Studio Development, L.L.C. (“Red Stick”), in a suit involving a dispute over the proper interpretation of Section 3(C) of Act 456 of the 2007 Regular Session of the Legislature (“Act 456”). Act 456 amended La. R.S. 47:6007, which concerns motion picture investor tax credits for both productions and infrastructure. Section 3(C) of Act 456 concerns grandfathered infrastructure projects, projects for which an application for pre-certification or initial certification was filed on or before August 1, 2007. This portion of Act 456 is commonly referred to as “the Grandfather Clause.” For the reasons that follow, we affirm.

PERTINENT FACTS AND RULING OF THE LOWER COURT

According to the record, on February 27, 2007, Red Stick submitted an application for motion picture investor credits for a “State-certified infrastructure project” as defined in La. R.S. 47:6007 B(12) as follows:

(12) “State-certified infrastructure project” shall mean a film, video, television, and digital production and postproduction facility, and movable and immovable property and equipment related thereto, or any other facility which supports and is a necessary component of such proposed state-certified infrastructure project, all as determined and approved by the office, the secretary of the Department of Economic Development, and the division of administration under such terms and conditions as are authorized by this Section. The term “infrastructure project” shall not include movie theaters or other commercial exhibition facilities.

Red Stick’s application and application fee were submitted in accordance with the requirements of La. R.S. 47:6007 D(2)(a)(ii) and D(2)(b)(ii), which provide as follows with regard to applying for motion picture investor credits:

(2)(a) Application. An applicant for the motion picture investor credit shall submit an application for initial certification to the office and the secretary of the Department of Economic Development and, in the case of infrastructure projects, to the office, the secretary, and the division of administration that includes the following information:
ls(ii) For state-certified infrastructure projects the application shall include:
(aa) A detailed description of the infrastructure project.
(bb) A preliminary budget.
(cc) A complete detailed business plan and market analysis.
(dd) Estimated start and completion dates.
(b) If the application is incomplete, additional information may be requested pri- or to further action by the office or the secretary of the Department of Economic Development or, in the case of infrastructure projects, the office, the secretary, and the division of administration. An application fee shall be submitted with the application based on the following:
(i) 0.2 percent times the estimated total incentive tax credits.
(ii) The minimum application fee is two hundred dollars, and the maximum application fee is five thousand dollars.

On August 27, 2008, the State made the determination that Red Stick’s project, with estimated expenditures of $665,500,000.00, met all of the criteria for the issuance of the Initial Certification Letter. The letter provided as follows:

In the opinion of the Department of Economic Development (DED) and the Office of Entertainment Industries Development (OEID), as approved by the Louisiana Division of Administration (DOA), certain descriptions of the project outlined in your submission, dated February 27, 2007, referenced above as supplemented by additional information provided by you, appear to meet the criteria of an infrastructure project under the Louisiana Motion Picture Incentive Act. You may proceed as a “State-Certified Infrastructure Project” in the meaning of R.S. 47:6007(B)(12), as of the effective-date of the statute, July 1, 2005, provided that expenditures are made for “infrastructure” as provided by law and determined by the State. Although your project appears to meet the criteria of a State-Certified Infrastructure Project, you should be aware that the administrative rules implementing the procedures and guidelines on the tax credit program for state-certified infrastructure projects are in the process of promulgation in accordance with law. Application of these rules will govern the expenditures that are qualifying “investment” and may ultimately limit or apportion the amount of your proposed investments that will qualify for the tax credits authorized by the Act. Subject to this limitation, to the extent that the actual expenditures are in conformance with the rules, then the expenditures for the infrastructure project you describe qualify for the following credits described in R.S. 47:6007 Section 3(B), as follows:
(ii) Since this application was filed on or before August 1, 2007, the applicant shall have until January 1, 2010, to earn tax credits on this project.

In response to this letter, Red Stick filed a petition for mandamus, arguing that the language contained in the paragraph numbered (ii) in the August 27, 2008 Initial ^Certification Letter was not found anywhere in La. R.S. 47:6007 or in Act 456. Red Stick prayed for the issuance of a writ of mandamus directing the State to remove the requirements contained in paragraph (ii) and either not replace them or replace them with the language taken directly from the Section 3(C) of Act 456. Red Stick subsequently amended its petition for mandamus, requesting a declaratory judgment concerning the meaning of La. R.S. 47:6007 as amended by Act 456.

On November 24, 2008, the petition for mandamus was argued by the parties, who advised the court that a stipulation had been reached wherein the parties agreed that paragraph (ii) of the Initial Certification Letter dated August 27, 2008, be replaced with the language from Section 3(C) of Act 456. Red Stick reserved its right to proceed with a declaratory judgment action, and the parties agreed that the request for a writ of mandamus would be dismissed with prejudice. The stipulation was agreed to by all parties on December 3, 2008.

Trial on the petition for declaratory judgment was held on March 10-16, 2009. In a judgment signed March 25, 2009, the trial court found in favor of Red Stick, declaring that Section 3(C) of Act 456 is clear and unambiguous and that the term “qualify for” means that an application must receive its Initial Certification Letter and spend a minimum of 20 percent or $10 million of the total base investment provided for in the Initial Certification Letter that is unique to film production infrastructure before January 1, 2010. Thereafter, the application may earn 40 percent infrastructure tax credits for the life of the project. The trial court also ordered that the December 3, 2008 stipulation previously entered into by the parties be made the judgment of the court. This appeal by the State followed.

ASSIGNMENTS OF ERROR

1. The trial court erred in concluding that Section 3(C) was “clear and unambiguous” and that the words “qualify for” mean that an application must receive (i) its initial certification letter and (ii) spend a minimum of 20% or $10 million of the total base investment provided for in the initial certification letter that is unique to film production infrastructure before January 1, 2010; if it does so it may earn tax credits after January 1, 2010, until the project is finished.
| b2. The trial court erred in allowing the testimony of supposed legislative intent by legislators; evidence of statements (including post-enactment statements) by legislators concerning the meaning of Section 3(C); evidence of private communications with legislators concerning supposed legislative intent; and the opinions of numerous non-legislators concerning their interpretation of Section 3(C) during the five day trial.
3. The trial court erred in failing to consider the contemporaneous legislative history of Act 456 of 2007.
4. The trial court erred in failing to conclude that Section 3(C) means that an application filed on or before August 1, 2007, shall have twenty-four months in which to make expenditures for which tax credits are sought. Expenditures made after January 1, 2010, may not earn tax credits.

DISCUSSION

The proper interpretation of a statute is a question of law, which we review de novo. CDI Corp. v. Hough, 2008-0218, p. 7 (La.App. 1 Cir. 3/27/09), 9 So.3d 282, 287. Legislation is the solemn expression of legislative will. La. Civ. Code art. 2. The interpretation of a statute begins with the language of the statute itself. Denham Springs Economic Development Dist. v. All Taxpayers, Property Owners, 2004-1674, p. 6 (La.2/4/05), 894 So.2d 325, 330. Louisiana Civil Code article 9 instructs that when a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. La. Civ.Code art. art. 9; Denham Springs, 2004-1674 at 6-7, 894 So.2d at 330-331.

However, when the language of a statute is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. State Farm Mut. Auto. Ins. Co. v. U.S. Agencies, L.L.C., 2005-0728, p. 4 (La.App. 1 Cir. 3/24/06), 934 So.2d 745, 747-748, writ denied, 2006-0933 (La.6/16/06), 929 So.2d 1288. When a statute is ambiguous or when its literal construction produces an absurd or unreasonable result, the letter must give way to the spirit of the law and the statute construed to produce a reasonable result. Fontenot v. Chevron U.S.A. Inc., 95-1425, p. 7 (La.7/2/96), 676 So.2d 557, 562.

|,Jn ruling in favor of Red Stick, the trial court issued the following detailed oral reasons for judgment:

[I]t appears to this court ... that the law is clear and unambiguous. To qualify for, that means to meet the condition to this court. The conditions being A, B, and C. Thereafter, you move for-ward_ It appears that the Legislature in their infinitive wisdom made a determination and wrote a statute, had the votes going in; they knew they had the votes, passed what they wanted to pass in [lighting] fashion as they typically do the last day of the [session] ... knowing they could pass it, but also knowing that it’s subject to a gubernatorial veto if the executive branch doesn’t want it. So it could have easily have been vetoed. This court is firmly of the opinion that this is a clear and unambiguous statute. Therefore, the court does not need to go looking for a legislative intent, and it will apply it so that it does not reach any absurd consequences. Having said that, however, if the court were going to look for legislative intent, certainly, it is embodied in the testimony of the House and Ways Chairman, Taylor Townsend, who clearly and unequivocally and even unabashedly testified [to] exactly what goes on down at the Legislature. Now, the Legislature is the most plenary of the three branches, the most powerful of the three branches, because it represents the exercise of the people to govern themselves by their Legislators. Closest to the people is the House of Representatives.... The Senate being the upper chamber yields to the House from time to time, but it’s supposed to exercise more reason than the house. Be that all as it may, but once the committee has been appointed, the conference committee, and this particular one was unanimous, once they made their decision, the ball carrier gets the ball over to the House and that’s what happened here. Mr. Townsend had his votes lined up without respect to merits and without respect to the nuances because it was a clear understanding going in. Therefore, the court will hold as a matter of law that this statute is clear and unambiguous. [Red Stick] qualified when [it] reached condition number three and got that pre-certification letter. [It] has from that point until [it] finishes [the] project to claim the forty percent tax credit. Judgment to be signed accordingly.

After a thorough review of the record in this case, we agree with the trial court’s finding that Section 3(C) of Act 456 is clear and unambiguous, and its application does not lead to absurd consequences. Section 3(C) of Act 456 provides as follows:

(C) An application for an infrastructure project filed on or before August 1, 2007, shall have twenty-four months from the date of approval of the rules or January 1, 2008, whichever is earlier, in which to qualify for the forty percent tax credits earned on expenditures. Tax credits on infrastructure projects shall be considered earned in the year in which expenditures are made, provided that a minimum of twenty percent or ten million dollars of the total base investment provided for in the initial certification that is unique to film production infrastructure shall be expended before infrastructure tax credits can be earned on expenditures. The payment of tax credits may extend beyond or be made after the year expenditures are made. [Emphasis added.]

|7We agree with the trial court’s determination that the words “qualify for” as they are used in Section 3(C) mean that an application filed on or before August 1, 2007, must (1) apply for and receive its Initial Certification Letter and (2) spend a minimum of 20 percent or $10 million of the total base investment provided for in the Initial Certification Letter that is unique to film production infrastructure before January 1, 2010. Thereafter, it is qualified to earn 40 percent infrastructure tax credits for the life of the project. The law is to be applied as written with no further interpretation made in search of the intent of the legislature. La. Civ. Code art. 9.

DECREE

Accordingly, we affirm the judgment of the trial court in all respects. Appeal costs in the amount of $4,721.10 are assessed against defendants/appellants, the State of Louisiana, through the Division of Administration, the State of Louisiana, through the Department of Economic Development, and the State of Louisiana, through the Office of Entertainment Industries Development. We issue this memorandum opinion in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1 B.

AFFIRMED.

      . We note, as did the trial court in its oral reasons for judgment, that if we were to look past the language of Act 456 and consider other evidence of record in search of the intent of the Legislature, our conclusion would remain the same, i.e., that the Legislature passed Act 456 with no deadline for incurring expenditures for "grandfathered projects.” Rather, the Legislature established a minimum expenditure of 20 percent or $10 million of the total base investment to be expended within the twenty-four month time period before a project is able to earn any tax credits. The record is replete with testimony to support such a finding. Thus, although we need not look for additional evidence of legislative intent in the instant case, a complete record was made below by the trial court. Moreover, we find no error in the trial court's decision to allow numerous witnesses, including legislators, to testify during the five-day trial concerning their interpretation of Sec-lion 3(C). Louisiana Revised Statutes 24:177 provides as follows with regard to the admissibility of evidence to determine legislative intent:
      B. (1) The text of a law is the best evidence of legislative intent. (2)(a) The occasion and necessity for the law, the circumstances under which it was enacted, concepts of reasonableness, and contemporaneous legislative history may also be considered in determining legislative intent.
      The statute also enumerates what "shall not constitute proof or indicia of legislative intent,” but as correctly pointed out by Red Stick in brief, "[njotably absent is a prohibition on the use of trial testimony of legislators, or members of the executive branch, or the prohibition on the examination and use of the prior versions of what was ultimately enacted by the legislature.”


author: GUIDRY, J.

text:
    Wendell K. JOHNSON v. CITY OF BATON ROUGE THROUGH BATON ROUGE POLICE DEPARTMENT, Cpl. Kenneth J. Camallo, Jr., Cpl. James R. Cutrer, Sgt. D. Brim, Lt. R. Cowart, Joseph Leduff in his Official Capacity as Chief of Police, East Baton Rouge Sheriff Office, Sgt. J. Sandridge.
    No. 2009 CA 1112.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.
    Terry L. Bonnie, Baton Rouge, LA, for Plaintifi/Appellant, Wendell K. Johnson.
    Arlene C. Edwards, Asst. City Parish Attorney, Baton Rouge, LA, for Defendants/Appellees, City of Baton Rouge through Baton Rouge Police Dept, Chief Jeff Leduff, Cpl. Kenneth J. Camallo, Jr., Cpl. James R. Cutrer, Sgt. D. Brim and Lt. R. Cowart.

      Tara L. Johnston, Baton Rouge, LA, for Defendants, EBRP Sheriffs Office and Sgt. J. Sandridge.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|2Plaintiff, Wendell K. Johnson, appeals a judgment sustaining a peremptory exception raising the objection of prescription and dismissing his suit for damages against the Baton Rouge Police Department and various law enforcement officers. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On or about November 10, 2006, in the course of being issued a misdemeanor citation, plaintiff was arrested and booked into East Baton Rouge Parish Prison on an outstanding warrant issued by the State of Florida against another man with the same name. Several hours later, after law enforcement officers with the Baton Rouge Police Department, the East Baton Rouge Sheriffs Office, and the Orange County Sheriffs Office in Florida had verified to their satisfaction that plaintiff was not the same person identified in the outstanding Florida warrant, plaintiff was released. Almost a year later, on November 7, 2007, plaintiff filed a petition for damages against the City of Baton Rouge, the Baton Rouge Police Department, and various law enforcement officers under docket number 560,922 in the Nineteenth Judicial District Court.

A request for service on all the named defendants was included with the petition, but the request did not provide addresses for any of the named defendants. A document providing addresses whereby the named defendants could be served was filed with the trial court over eight months later, on June 19, 2008. Thereafter, on September 22, 2008, the trial court signed an order dismissing the petition filed under docket number 560,922 without prejudice. Prior to the dismissal of the first suit, however, plaintiff filed another petition against all of the same defendants, plus the East Baton Rouge Sheriffs Office, on September 17, 2008. All of the named defendants, except the East Baton Rouge Parish Sherriffs Office and Sgt. James Sandridge, peremptorily excepted to the second suit on the basis of | ^prescription. Following a hearing on the exception, the trial court sustained the exception and dismissed the plaintiffs second suit with prejudice on March 18, 2009.

It is from this March 18, 2009 judgment that plaintiff appeals, asserting that the trial court erred in ruling pursuant to La. R.S. 13:5107(D), when the parties to the earlier suit jointly and voluntarily moved for dismissal of that suit, and in finding that the second petition did not relate back to the first petition for the purpose of ruling on the peremptory exception urging prescription.

DISCUSSION

Plaintiff alleges that the trial court committed legal error when it applied the provisions of La. R.S. 13:5107(D) to determine that the filing of the first suit did not interrupt the running of prescription as to the second suit. We find no merit in this allegation because contrary to what the plaintiff states, the trial court expressly acknowledged that the first suit was dismissed at the request of the plaintiff. AsJjthe trial court explained to counsel for the plaintiff, “the second suit stands on its own, because it’s an independent action that you filed, and you dismissed your first action.... It wasn’t an amendment. It wasn’t a request to serve, to reserve.” Thus, the record shows that the trial court did not rely on the provisions of La. R.S. 13:5107(D) to find that the filing of the first suit did not interrupt the running of prescription as to plaintiffs second suit.

Plaintiff also argues that the trial court should have found that the first action interrupted the running of prescription as to the second action based on La. C.C. art. 8462. Louisiana Civil Code article 8462 states, in pertinent part, that “[prescription is interrupted when ... the obligee commences action against the obli-gor, in a court of competent jurisdiction and venue.” However, La. C.C. art. 3463 further provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue ... continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial. [Emphasis added.]

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. La. C.C. art. 9. Plaintiff plainly admits that he voluntarily dismissed the first suit. Consequently, La. C.C. art. 3463 unambiguously provides that any interruption of prescription resulting from the first suit “is considered never to have occurred” as a result of plaintiff having voluntarily dismissed the first suit. Since interruption was deemed never to have occurred, the filing of the second suit, even before the dismissal of the first suit, was untimely as the second suit was filed more than a year after the alleged tortious conduct sued upon occurred. Accordingly, the trial court did not err in |5sustaining the peremptory exception on the basis of prescription or in dismissing plaintiffs second suit with prejudice.

CONCLUSION

For the reasons stated herein, we affirm the March 18, 2009 judgment of trial court sustaining the peremptory exception raising the objection of prescription and dismissing the suit filed by plaintiff on September 17, 2008, with prejudice. All costs of this appeal are cast to the plaintiff, Wendell K. Johnson.

AFFIRMED.

      . An exception raising the objections of lack of procedural capacity, no cause of action, and prescription was filed by the East Baton Rouge Parish Sheriff's Office and Sgt. San-dridge on March 3, 2009, the day after the trial court heard arguments on the objection of prescription urged in the peremptory exception filed by the other defendants. Consequently, the objections raised in the exception filed by the East Baton Rouge Sheriff’s Office and Sgt. Sandridge are not the subject of the March 18, 2009 judgment.

      . Louisiana Revised Statutes 13:5107(D) provides:
      (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
      (2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
      (3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the stale, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue. [Emphasis added.]

      . See La. C.C. art. 3492.


text:
    Wade CLARK, Perry Tucker, Ann Guidry, Martha Lacaze, and Harry Dawsey v. STATE of Louisiana.
    No. 2009 CW 1376.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.
    Frederick Mulhearn, Monica Doss Washington, Shone T. Pierre, David Hansen, Donald Bowman, Miranda Conner, Antonio Ferachi, Baton Rouge, LA, for Defendant/Relator, State of Louisiana, Department of Revenue.

      Patrick W. Pendley, Stan P. Baudin, Plaquemine, LA, for Plaintiffs/Respondents, Wade Clark, et al.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

l2In response to a writ for supervisory review filed by the State of Louisiana, Department of Revenue, this court granted certiorari to determine the correctness of a judgment by the district court rendered on original appeal of a ruling by the Board of Tax Appeals (BTA). The district court overruled the BTA’s finding that the plaintiffs’ claims were prescribed and also overruled the BTA’s denial for class certification. After a thorough review of the entire record in this case, and for the following reasons, we reverse the district court’s judgment and reinstate the BTA’s findings that the claims were prescribed.

BRIEF FACTUAL BACKGROUND

Prior to any litigation, the five named plaintiffs herein, Wade Clark, Perry Tucker, Ann Guidry, Martha LaCaze, and Harry Dawsey (hereinafter referred to collectively as plaintiffs) were among a group of up to 400,000 customers, each of whom was previously issued a refund of overpay-ments made to Cajun Electric Power Cooperative, Inc. (Cajun) after said payments were deemed to have been overcharges for electricity service provided.

In July 2000, the Louisiana Public Service Commission (LPSC) rendered a decision directing the disposition of funds totaling $197,469,668.00 received by the LPSC as part of a settlement of the bankruptcy proceedings of Cajun. The funds, which had been placed in escrow pending investigations, were deemed to represent overcharges collected from Cajun’s customers, including plaintiffs, and refunds to the rate payers were ordered.

This matter has a long history and underlying all of the attendant litigation is an assertion by the plaintiffs, on behalf of a proposed class of up to 400,000 members, |sthat they are entitled to a refund from the State of Louisiana, Department of Revenue of the sales taxes they paid on the monies that were refunded to them as overcharges.

BRIEF SUMMARY OF ISSUES PRESENTED

The BTA’s finding that the plaintiffs’ claims were prescribed was based on the plaintiffs’ failure to comply with the statutory requirement that a taxpayer first file a claim for refund with the secretary of the Department of Revenue (Department). It is only after the Department has acted or failed to act on a taxpayer’s claim that such taxpayer may appeal to the BTA for a redetermination of the alleged overpayment. La. R.S. 47:1431. Notwithstanding the plaintiffs’ admitted failure to follow the statutory mandate for proceeding with a claim for refund against the department, both the plaintiffs and the district court rely on language in a prior decision from this court on a related matter in this litigation, which they claim constitutes law of the case on the issue of prescription.

As to the BTA’s ruling denying plaintiffs’ class certification, the plaintiffs claim that issue was not even before the BTA because that request had been withdrawn by them as unnecessary to the proceedings before the BTA. In the alternative, they argue that the district court’s analysis and determination that they properly met the requirements for class certification was correct and should be affirmed.

A broad understanding of the statutory scheme applicable to the BTA, as well as a delineation of the long protracted procedural history of this matter, are necessary for a resolution of the issues presented herein.

APPLICABLE LAW

Louisiana Constitutional article 7, § 3 mandates the legislature to provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer. The legislature enacted La. R.S. 47:1401, creating a Board of Tax Appeals |4to “act as an appeal board to hear and decide, at a minimum of expense to the taxpayer, questions of law and fact arising from disputes or controversies between a taxpayer and the collector of revenue” of the State of Louisiana. Louisiana Revised Statutes 47:1501 A specifies that the terms “collector,” “collector of revenue,” “secretary,” or “secretary of revenue,” when used in that Title, mean “the secretary of the Department of Revenue for the state of Louisiana.”

To further fulfill its constitutional mandate, the Louisiana legislature has provided three separate remedies: (1) the Claims Against the State procedure, La. R.S. 47:1481, et seq.; (2) the Payment Under Protest procedure, La. R.S. 47:1576, et seq., and (3) the Overpayment Refund procedure, La. R.S. 47:1431 and La. R.S. 47:1621, et seq.

Louisiana Revised Statutes 47:1407 confers jurisdiction on the BTA as follows:

(1) All matters relating to appeals for the redetermination of assessments, or for the determination of overpay-ments, as provided in R.S. 47:1431 through 47:1438.
(2) All matters relating to the waiver of penalties, as provided in R.S. 47:1451.
(4) All matters relating to claims against the state, as provided in R.S. 47:1481 through 47:1486.

Claims Against the State procedure

Louisiana Revised Statutes 47:1481 provides that in a claim against the state for money erroneously paid into the State Treasury, the taxpayer may file a claim directly with the BTA, seeking the BTA’s determination of the claim based on “justice, merits and correctness.” Once the BTA determines the claim is valid, it issues a warrant upon the State Treasurer recommending that the legislature authorize payment. If the claim is for more than $1,000.00, the BTA must petition the legislature to have a bill passed appropriating the payment of the claim from the state |5treasury. See: La. R.S. 47:1483-1485. For claims against the state, there is no right of judicial review or appeal of the BTA’s decision through the court system, but a claimant may still petition the legislature for permission to sue on the claim in a court of competent jurisdiction. La. R.S. 47:1486.

Overpayment Refund procedure Louisiana Revised Statutes 47:1431 provides that when a taxpayer “aggrieved ... by the collector’s action or failure to act on a claim for refund or credit of an overpayment, such taxpayer may appeal to the [BTA] for ... a determination of the alleged overpayment, by filing a petition with the [BTA] within the respective periods set forth in R.S. 47:1565, 47:1566 and 4.7:1625.” (Emphasis added.)

Louisiana Revised Statutes 47:1434 provides for the judicial review of the decision of the BTA as follows, in pertinent part:

After a decision or judgment of the [BTA] ... the taxpayer may, within thirty calendar days after such decision or judgment has been rendered and signed, file a petition with the district court ... for review of the said decision or judgment of the [BTA].
[T]he taxpayer may file his petition for review ... setting forth specifically any errors which may have been committed by the [BTA] in reaching its decision or judgment. [Emphasis added.]

Louisiana Revised Statutes 47:1435 further provides that the district courts have exclusive jurisdiction to review the decisions or judgments of the BTA, and the district court’s judgment shall be subject only to a suspensive appeal in accordance with law.

The procedure for “Refund of Overpay-ments” is provided in La. R.S. 47:1621, et seq. Louisiana Revised Statutes 47:1623 A, entitled “Prescription of refunds or credits,” provides in pertinent part:

After three years from the 31st day of December of the year in which the tax became due or after one year from the date the tax was paid, whichever is later, no refund or credit for an overpayment shall be made unless a claim for credit or refund has been filed with the secretary by the taxpayer claiming such credit or refund before the expiration of the | (¡three-year or one-year period.... The secretary shall prescribe the manner of filing claims for refund or credit. [Emphasis added.]

If the Department denies the claim in whole or in part, or if it fails to act on the claim within a year, the taxpayer may appeal to the BTA for a hearing on the claim. The BTA is vested with jurisdiction to determine the correct amount of the tax and to render judgment ordering the refunding or crediting or any overpayment or the payment of any additional tax, interest and penalty found to be due. La. R.S. 47:1625.

PROCEDURAL HISTORY

BTA Case Docket No. 5313

This litigation began on August 17, 2000, with a petition filed by the plaintiffs with the BTA, bearing docket number 5313, for “Refund of State Sales Tax.” In that petition, the plaintiffs alleged to be proceeding under the “Claims Against the State procedure,” La. R.S. 47:1481, et seq., which is intended to give the BTA the authority to grant claims for taxes erroneously paid to the state, when principles of justice and equity so require, even though a refund may not be permitted by law. Sperry Rand Corp. v. Collector of Revenue, 376 So.2d 505, 507 (La.App. 1st Cir.), writ denied, 376 So.2d 156 (La.1979). They also alleged that the overpayments had not been made under protest, as provided in La. R.S. 47:1576, et seq. The plaintiffs averred that the BTA should invoke that authority under La. R.S. 47:1481, et seq. in this case and grant their claim for a refund. The plaintiffs also alleged and requested class certification for the proposed class. The petition named the State through the Department of Revenue as defendant and the petition was served on the secretary of the Department of Revenue, Cynthia Bridges.

Nineteenth Judicial District Court Docket No. 483,150

On April 9, 2001, the plaintiffs filed a petition in the Nineteenth Judicial District Court, Docket No. 483,150, for “Payment of a Thing Not Owed and Refund |7of State Sales Taxes.” The plaintiffs alleged that they had paid a thing not owed to the State of Louisiana in the form of state sales taxes on approximately $169,900,000.00 overcharged for electricity, and specifically sought a refund of the taxes assessed on the overcharge. They also alleged and specifically requested class certification for the proposed named class.

Judgment(s) in Docket No. 483,150

Following a hearing on the state’s exceptions alleging objections of lack of subject matter jurisdiction, lis pendens, and prescription and on the plaintiffs’ motion for class certification, held on August 12, 2002, judgment was signed by the district court on August 21, 2002, denying the state’s exceptions. By judgment dated February 11, 2003, the district court granted the plaintiffs’ motion for class certification (as defined in the petition) and gave class counsel 30 days to submit a notice plan and “Form of Notice” for the court’s approval.

The state sought writs for supervisory review of the foregoing rulings from this court. On January 27, 2003, this court denied the writ. Clark v. State, 02-1936 (La.App. 1st Cir.1/27/03)(unpublished writ action). The state then applied for writs to the Louisiana Supreme Court, which writ was granted on April 25, 2003, and the matter was remanded to this court for briefing, argument, and a full opinion. Clark v. State, 03-0591 (La.4/25/03), 842 So.2d 388.

First Circuit decision in Clark v. State, 02-1936 (La.App. 1st Cir.1/28/04), 873 So.2d, 32, writ denied, 04-0452 (La.4/23/04), 870 So.2d 300

Upon remand from the Louisiana Supreme Court, this court reversed the judgment of the district court and sustained the state’s declinatory exception of lack of subject matter jurisdiction. In sustaining the exception, this court noted that “[i]t is well settled that laws regulating the collection of taxes are sui generis and constitute a system to which the general provisions of the Civil Code have little, if any, ^application.” Clark, 02-1936 at pp. 6-7, 873 So.2d at 35. This court also noted with cited authority that attempts to assert refund claims against a taxing authority, under La. C.C. art. 2299 providing for payment of a thing not due, have consistently been rejected by our courts. Clark, 02-1936 at p. 7, 873 So.2d at 36. This court concluded that the exclusive authority vested in the BTA is not circumscribed by the constitutional grant of jurisdiction to the district court. This court held that the legislative mandate to “provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer” as reflected by La. R.S. 47:1434-36 “clearly establishes that the district courts’ jurisdiction in judicial review of ‘decisions or judgments’ of the [BTA] is appellate in nature.” Clark, 02-1936 at p. 8, 873 So.2d at 36. Therefore, this court held that the district court in this matter lacked original jurisdiction to consider the merits of plaintiffs’ claims. Thus, this court reversed in part the district court’s judgment and sustained the declinatory exception of lack of subject matter jurisdiction. Clark, 02-1936 at pp. 8-9, 873 So.2d at 37.

This court’s decision also addressed constitutional challenges, raised by the plaintiffs in a supplemental and amending petition, to the validity of the statutes providing the procedural mechanism for the assertion of their claims (i.e., La. R.S. 47:1434-36), and held that the district court did have jurisdiction over those claims, and also held that because “the validity of the claim procedure and the merits of defendant’s prescription defense are intertwined with the issue of the constitutionality of the challenged statutes,” it was still necessary for the district court to rule on those issues. Clark, 02-1936 at p. 9, 873 So.2d at 37. This court remanded the case to the district court for “further proceedings, including the determination of the constitutional issues raised by the plaintiffs.”

This court also held that until the BTA completes its fact finding function and renders its decision on the prescription issue and others, the district court lacked appellate jurisdiction to review the merits of the case, including the issue of | ¡prescription. Accordingly, this court vacated the district court’s denial of the peremptory exception of prescnption.

Further, this court held that plaintiffs’ cause of action and claims for refund of the sales tax overpayments asserted in the district court “are stayed, in order to permit plaintiffs to proceed with the pending administrative remedy initially sought.” (Emphasis added.)

As noted earlier, this decision by this court was rendered on January 28, 2004, and wiits were denied by the Louisiana Supreme Court on April 23, 2004.

On Remand to the BTA

Rather than proceeding in the pending action before the BTA (Docket No. 5313), on May 6, 2004, the same five named plaintiffs filed a new petition “for appeal for determination of overpayments” with the BTA, naming as defendant the State of Louisiana, through Cynthia Bridges as Secretary of the Department of Revenue. The matter was assigned docket number 6143. During the proceedings, the BTA noted this discrepancy, and proceeded to consider the matters as consolidated.

In their new petition, plaintiffs sought a refund of state taxes they overpaid in conjunction with their purchases of electricity and asserted facts supporting then* request that the matter be certified as a class action. The Department responded to the petition with a peremptory exception of prescription and an opposition to the request for class certification. The BTA heard the exception and opposition on November 16, 2004, and issued reasons for judgment on March 15, 2005, stating that it was denying the plaintiffs’ request for class certification and sustaining the peremptory exception of prescription. Judgment was signed on May 4, 2005, dismissing the plaintiffs’ claims.

BTA Reasons for Judgment

With respect to the objection of prescription, the BTA found that claims for refunds of overpayments are governed by La. R.S. 47:1621, with the prescriptive | inperiod for such claims being governed by La. R.S. 47:1623(A). That section requires that a claim for refund must be filed by the taxpayer with the secretary no later than three years from the 31st day of December of the year that the tax was due. While La. R.S. 47:1625 gives the taxpayer the right to appeal to the BTA, that section also provides that no appeal to the BTA may be filed until the expiration of one year from the date the taxpayer has filed with the secretary or within 60 days from the date that the secretary denied the claim. The BTA noted that no claim for refund or credit had ever been filed by any of the allegedly aggrieved taxpayers 'with the Secretary of the Department of Revenue. The BTA also found that plaintiffs’ rights to file first with the Secretary had prescribed; and therefore, sustained the peremptory exception of prescription and dismissed the case.

In denying the request for class certification, the BTA reasoned that it is not a “court” as contemplated in Code of Civil Procedure articles 591, et seq. (providing the law and authority for class actions). Instead, the BTA is an independent agency in the executive department of state government, the power and authority of which are set out in Chapter 7 of Title 47 (La. R.S. 47:1401-1486). The BTA noted that there is no express or implied authority for it to establish or hear a class of claims, finding instead that the express authority granted the BTA is to hear the claim of “a taxpayer” or “the taxpayer.”

District Court Action Docket No. 538,279

On November 28, 2005, plaintiffs filed a petition for judicial review of the BTA decision in the Nineteenth Judicial District Court, Docket No. 538,279.

A hearing was held on April 27, 2009, at which time oral arguments were presented by the parties and the matter was submitted and taken under advisement. | nThe district court issued a ruling on June 29, 2009, finding the BTA erred in denying class certification, overruling the BTA’s finding that the matter was prescribed, and remanding the matter to the BTA for a ruling on the merits of the sales tax refund. The district court found that the previous district court judge had granted class certification, a ruling that had not been appealed before the matter was again presented to the BTA; therefore, the BTA did not have the authority to overrule the certification, which at that point in time, was binding on the BTA.

In overruling the finding that the claims were prescribed on the basis that the plaintiffs failed to first request a refund directly from the Department as required by La. R.S. 47:1621, et seq., the district court agreed with the plaintiffs that “the courts” had already found that the plaintiffs had filed a timely claim. In so finding, the district court relied on dicta language in this court’s earlier opinion, wherein this court stated: “Although plaintiffs’ administrative claim was initially filed with the [BTA] rather than directly with the Department, the Department was named as a ‘defendant’ and served through its Secretary. The petition may therefore be viewed as the functional equivalent of a claim for refund of overpayments filed with the Department under La. R.S. 4.7:1621.” Clark, 02-1936 at p. 6, 873 So.2d at 35. (Emphasis added.)

These two rulings are presently before us on review.

STANDARD OF REVIEW

Pursuant to Louisiana’s Constitution and statutes, we review this case as a second court of appellate review. The Nineteenth Judicial District Court is vested with the power to review the decision of the BTA herein. La. Const, art. V, § 16; La. R.S. 47:1434-35. Thereafter, the ruling of the district court is subject to appellate review by suspensive appeal to this court, in the exercise of appellate jurisdiction over civil matters. La. Const, art. V, § 10; La. R.S. 47:1435; Chamberlain v. Kennedy, 03-0488, p. 4 (La.App. 1st Cir.12/31/03), 868 So.2d 753, 756.

112Judicial review of a decision of the BTA is rendered upon the record as established before the BTA and is limited to facts on the record and questions of law. The BTA’s findings of fact should be accepted where there is substantial evidence in the record to support them, and should not be set aside unless they are manifestly erroneous in view of the evidence on the entire record. With regard to questions of law, the judgment of the BTA should be affirmed if the BTA has correctly applied the law and has adhered to the correct procedural standards. Secretary, Department of Revenue v. Calcasieu Refining Company, 00-1735, p. 6 (La.App. 1st Cir.9/28/01), 809 So.2d 1023, 1028 (citations omitted.)

DISCUSSION AND ANALYSIS

Prescription

It is wholly undisputed that the plaintiffs have never filed a claim for a refund directly with the collector, ie., the secretary of the Department of Revenue, as expressly required by La. R.S. 47:1431. Therefore, we must review our earlier opinion in light of the plaintiffs’ claim and the district court’s finding that we held plaintiffs’ claim had been properly filed, and that this “holding” constitutes law of the case in this matter concerning prescription.

At the outset, it should be clearly noted that the ultimate holding in our earlier opinion was that the district court lacked subject matter jurisdiction over the plaintiffs’ claim because of the pending administrative proceeding that included the issue of prescription. Clark, 02-1936 at p. 9, 873 So.2d at 37. In that decision, we vacated the district court’s ruling denying the peremptory exception of prescription, and the matter was remanded to the BTA for a ruling on the merits of the claim for refunds. Clark, 02-1936 at p. 9, 873 So.2d at 37.

Moreover, a very careful and close reading of our earlier opinion reveals that the language relied on by the plaintiffs and the district court constitutes dicta, which relates to a peripheral discussion we entertained on a related but separate issue. In | ^support of numerous exceptions, the defendant noted a discrepancy between the plaintiffs’ alleged characterization of their claims as being brought pursuant to the Claims Against the State procedure, La. R.S. 47:1481 (which allows a proceeding to be initiated at the BTA without a prior filing with the Department), and the actual remedy sought by the plaintiffs, a refund of their overpayments, available only through the Overpayment Refund procedure, La. R.S. 47:1621 (requiring that a claim be first presented to the Department). In that discussion, this court agreed that a careful review of the plaintiffs’ claims revealed they prayed for a judgment of monetary award from the BTA, and therefore, in the context of and for purposes of determining by which procedure the plaintiffs had chosen to proceed, we noted in dicta that the plaintiffs’ petition “may ... be viewed as the functional equivalent of a claim for refund of overpayments” under La. R.S. 47:1621 (as opposed to the Claims Against the State procedure under La. R.S. 47:1481, et seq.). Clark, 02-1936 at p. 6, 873 So.2d at 35.

Clearly, this court did not intend, nor do we have the authority, to sanction a claim as being properly filed when the very clear and express statutory requirement that it first be presented to the secretary for the Department has not been met. Therefore, we find the plaintiffs’ reliance on this dicta as alleged law of the case is wholly misplaced, and the district court erred in agreeing with that argument.

Indeed, we find the BTA correctly applied the law and proper analysis to the plaintiffs’ claims, finding them prescribed for not having ever been initially presented to the Department for action, or inaction, prior to proceeding before the BTA as clearly required under the statutory scheme. Accordingly, we reverse the judgment of the district court and reinstate the BTA’s finding that the plaintiffs’ claims had prescribed.

| uClass Certification

In light of our finding the plaintiffs’ claims before the BTA were prescribed, the issue and discussion regarding class certification is pretermitted.

CONCLUSION

For all the foregoing reasons, we reverse the judgment of the district court and reinstate the decision of the BTA sus-tabling the state’s peremptory exception based on prescription as to the plaintiffs’ claims, which are hereby dismissed. Costs of this appeal are assessed to the plaintiffs.

DISTRICT COURT JUDGMENT REVERSED; THE BOARD OF TAX APPEALS FINDING THAT THE PLAINTIFFS’ CLAIMS HAD PRESCRIBED IS REINSTATED.

      . The record reveals the taxes were paid to the electric cooperative, Cajun, which were then forwarded to the Department of Revenue by the electric service providers.

      . In light of the already pending claim before the BTA, the plaintiffs assert that they only filed this petition in the district court "out an abundance of caution."

      . The record reveals that the plaintiffs also concurrently filed in Docket No. 483,150 a motion to lift the stay (imposed by this court on appeal) and also a petition for judicial review in that suit as well. Apparently, that petition was met by a dilatory exception of improper cumulation of actions; the district court agreed and ordered plaintiffs to file a separate petition for judicial review.