filed it appealed the judgment dismissing all of the claims when we filed our appeal brief we limited the appeal to the loop decline the louisiana unfair trade practices claim and we only are pursuing that claim against the roust defendants not against the developers and i think all the developers have filed motions to be dismissed believe they've all been dismissed and the suit to claim under loop and for these other cause of action but like i said we're only pursuing the loop the claim so that's all i'll be talking about today this dispute began back in two thousand and thirteen when the sheriff let me ask you what was there a claim below that your your client just didn't state any claims on the loop yes there was don't believe that that is before the court but in our reply brief we did respond to that so would be appropriate for us to remain and for the district court to consider in the st instance whether or not any claims w i think that's correct i think the only issue before this court is whether the claims that were asserted were printed or prescribed whether a proper claim was asserted under loopt i don't think is before the court because the district  my client filed a motion for reconsideration or a new trial which was denied all that was before the amendment the other claims that were filed were actually dismissed in july of two thousand and eighteen and this amendment didn't even become a fact of until august one of two thousand and eight what are you arguing that it's retroactive yes sure on what basis well the there's there's about six cases now that say that but the basis for that is that the louisiana courts say that prescription statutes are procedural and the general rule is that procedural changes in the law are retroactive and there is you know it but well according to the six cases that i'm referring to the two that i cited in the brief and there's been four new ones since i filed the brief they all say it's a prescriptive period not a perempt period and all six of those cases that it's retroactive it's procedural there's no vested rights the other side is arguing they had a festive right to assert this defense i believe that the st decision that came out after the amendment was by judge d'iberville in the middle district of louisiana in the trinity case and he has a long opinion about all the different arguments that are made here and in that case he found that it was procedural it should be applied retroactively there was no v and doctrine such as contra nonviolent him would apply and then there was a rd circuit case out of louisiana of the catholic church case offer get the exact name of it in it agreed with hi sided both of those cases in our original bridge but we updated our research for today and there's actually four new cases out since we filed our brief and i'll just mention those to you  the four new cases four hundred dollars run gun club that's out of the middle district of louisiana and that's my judge did it who is the judge that dismissed this claim case by and she actually agreed with judge you prevail and followed everything he said and then there's another case man versus alston contractors out of the eastern district of louisiana there's a swivel reynolds versus petro case out of the western district of louisiana and there's the johns versus mcbride case out of the western district of louisiana all four of those cases follow what judge the rebels said now i will mention to you that there is in a dish i'm a state law case out of the louisiana for a circuit camm soft data they came out a few weeks ago and it actually goes the other way it says that it's preemptive statute it doesn't talk about the amendment it doesn't side to any of the cases that have come out since the amendment but it does say it's a preemptive statute so i wanted you to be aware that case also be the amendment that's correct the memento became effective august one and the ruling dismissing the remaining claims was dated july does ya know i wouldn't say that it it opens them but the case is not really final until it's it's it's gone up on appeal and there's been a final ruling and i believe the law is that courts decide cases based upon the law that's existing at the time and the law that existing at the time that we're here on this case is with that amendment and it's so is is it the time that the cases just said it or the time the action on which this is followed took place your honor to my understanding it's based on the law at the time that the court rules at the time that this court rules it would be based on the law that if that exists or true troy yes your honor if it's retroactive that's my understanding i will say this on this issue about you know when an argument was made in in my opponent's brief where they said that my client waived this argument because they did not file a nd motion for a new trial after the ruling on july th remember they did file a motion for true for a new trial or reconsideration after the ruling on the loop the statute and they said they should we should have filed another one and raise this issue at the district court and we did and they say case there had been a change in the law and the party filed a motion for a new trial with the court but they didn't raise that with the with the district court which is different than our situation so i think what that camp ok stands for that if if you file a motion for a new trial and you ask the court to reconsider what it did you have to advise them about the you know the change in the law an amendment and that's not what we have here we we were there was a ruling issued on july th and we filed a notice of appeal and i don't know of any law any case law out there that says in that situation you have to go file a motion for a new trial and raise the issue of the of the amended statute with the court i think you could you could do that but i think you can also file an appeal which is which is what we did and you know it's not totally analogous but there is a case from this court the auckland loan servicing vs bury case where there was  a change in the law and the appellant didn't argue that in their original free and the issue was whether or not they were going to be allowed to file a supplemental prate brief to argue that and this court allowed that to be done and the other thing i would mention your honour's is that there isn't a discretionary exception to the waiver rule that applies where a dispute concerns a pure question of law and a miscarriage of justice would revolt from the court's failure to consider it well the issue before this court is a pure question of law it's whether the statute is prescriptive peremptory if and whether or not contra non or the continuing violation doctrine applies under this statute so that your questions of law whether they apply and whether prescriptive corrective and under the circumstances counsel makes use the get to which date you think is the relevant date with regard to the filing of your complaint yet well yana my clients learned about these restrictions in these leases they kept shopping center developers from leasing to my clients they learned about those in september of two thousand and fifteen and january of two thousand and sixteen and so i thought the complaint said you learned something about it in april of two thousand and fifteen i think that you may be referring to your honor that  where there was no brought refusal to the lease to my client but they didn't actually learn about these leases and the restrictions to they went to the clerk of courts office and they found the leases and i'm pretty sure the from jupiter crossing development ok and so what happened was my client went to the courthouse and they found the the leases in september of two thousand fifteen and they found another one in september of in january of two thousand and sixteen that's when they uncovered the leases and that wrongful act was with the leases were executed and then they became public record when they were very sure records well they did become public record your honor but i'm not aware of any case that is a person has an obligation to be running to the clerk of courts office and look and see what's of public record i think the test for content on the limb is whether you knew or should have known and it's our position that our client should have known about these restrictions in the lease is until they found these leases now the court never got to this issue because the court ruled that continent lynam did not apply because it was a primitive  period of time that the statute set forth so that issue has never been fleshed out and there's not been any kind of hearing or or evidence put on of when my client knew or should have known all we have is what is in the petition on the face of the petition to the record show what prompted your client to look at the public record i don't know your honor the the there is no evidence that was somewhere in thirty two thousand and thirteen and some in two thousand and fifteen i don't think my client learned about the leases until years after that they were done so is there a problem with between these developers and other parties that they lease to i would submit that there isn't there is not unless you have some notice that they're doing something to you and my client had no idea that to know or should have known if there's an unlawful act taking place between the developer and rouses that's what i would say about that your honor without more and i believe my time is up but are there any the ones that the petition states that the folks thought they had a deal were the th hour applause and then there was an abrupt termination and then they supposedly her received a telephone  call three years two years later as opposed to say well the reason was that there was this restrictive covenant the final lease was executed and record on february the th of two thousand and fifteen this l bases for affirming the court's decision to dismiss this case in the grounds of rummy asked in that connection let me ask you this if the determination is that it's prescriptive and we can look to when that when they discovered the fun or are always it too late it's still too late i believe your eye when you were quoting from the record i frankly couldn't recall and i don't know that the petition specifies the specific date in april that they purportedly got this telephone call i don't think that the specific defend it to either revive a term in a cause of action or to disturb a vested right and i think that's precisely the situation we're faced with here in shia chance then statute of limitations a one year statute take there after the legislature changed our law to eliminate a prescriptive period for any minor who suffered disabilities as a result of a product defect under that statute suit with five honda successfully secured from the court of appeals a determination that because the case in effect had been perscribe under the then statue of limitations the one year the subsequent really could not be revived the supreme court affirmed that and held that yes while prescription may be retroactive for those individual decade later in thomas versus roberts our court of appeals extended that same doctrine to preemption holding that once a peremptory a period runs it then becomes a vested right such t subsequent change in the law may not undermine or take away that vested right to eliminate any doubt the simply a change in the legislation is dispositive in versus a pea green rights specifically of you should there was the supreme court to help the plaintiffs had a claim for medical monitoring and commit an action with this best ohs injure the the following year the legislature adopted a statute saying there is no claim for medical monitoring it is not a remedy and this is simply interpretive of the statute that existed previously not withstanding the supreme court's decision holding this cause of action exists the plaintiffs pursued those claims the supreme court held no once the court interpreted that that exists that claim existed there was a vested rights and the not have found vested rights because he didn't believe that the claim was barred whether subject to peremptory or prescription there was nothing to vest hearing contrast we believe that as a matter of corruption as judge dick held before in the spring of two thousand and seventeen which leads me to the other point the court must be congress enough the reality here is there has been no mention made of this theory of this claim whatsoever to the district court and we submit under those bases this court can probably recognize this was way there was no position taken on this and as a result nothing was to sustain for purposes of appeal indeed in response to the original motion to dismiss there was no suggestion that the court should view this as a prescription period subject contra nonviolent on the contrary the defense was simply st that they didn't know which took them nowhere but that this was a continuing tort and therefore peremptory and could not apply that was in response to the st motion dismissed judge dick reversed and rejected that there was then a motion for reconsideration again single act as to which there may be alleged injury thereafter and you recognize we have three acts here we have three leases that were recorded and the fact that they may bar future involvement is not of continuing toward the acts all occurred  statute was so harebrained the term the judge dick must be biased to say was denied there was no suggestion again that prescription apply we go then to a series of motions to dismiss in the extinguished and there can be no further point that cannot be disturbed by the thereafter determination for crippen sure what finally in any event just a few things here on of we i spent all my time a minute ago talking about prescription versus parin and contra when i didn't really speak about the continuing violation doctrines i wanted to counsel brought that up i want to speak about that that was argued in the court below and judge just a court judge found that it did not apply we believe that it does apply and operating cause of injury is continuous giving rise to success as successive damages well the operating cause of injury in this case are the leases and the covenants that restrict the developer from ever leasing to my client and those those restrictions and those violations of rouses duty not to prohibit others from competing or engaging in business those happen every single day they happened they became effective on the day the leases were signed their effect of a year from now they're five how was how was it happening every single day well they made a decision apparently only takes one decision our decision is going to be we're not going to we're not going to agree that we're going to lease space in any place where you will also be leasing space that is those that's just one to see isn't it john or it's a decision that applies for the next twenty five  thirty years however long that lease is my client can never go into that shopping center and not only does it applied it is a these restrictions apply to the owners of visitors it applies to the affiliated businesses i mean this rouse's is out to not only punish is a but they're out to punish the owners and any other businesses that they own and so if if these other businesses try to go in there next year they can't any business owned by the owners of businesses can never go there the way these restrictions are written but there's only one that's the restrictive  the fact that it's ten years or twenty years or thirty years does make it continually under the law what constitutes a continue well your honor i know that that's what the other side is arguing but i disagree with that i think that the act is continuing to act that prohibits my client from ever going into those shopping centers is a continuing act and it applies to my client for years and years to come it's not just a one time act that my client can't go into that shopping center today it's an act that keeps my client from going into that shopping center for for however long that lease is in effect so i think it's a continuing act and i mean i don't know how else to say it but what is your best case well it is my best case and i think it's right i just find it's not the case you give us a case on continuing tort that would support this argument about the covenant in this well there is no case r i have cases that is a continuing violation is one in which the operating cause of intrigue is continuous and what is the operating cause of injury in this case is the restrictions in the lease i have cases that say that and we cite those in our brief what would be the operating cause of interest in this case if it wasn't the restriction in the lease i mean that that's that's what caused it and you know rouses maintaining this lease they continue to pay the rentals on it they continue to have a shopping center there so they're continuing to do things to maintain this lease and keep this restriction in place so it's your under the continuous violation doctrine the time period doesn't start to run into the violation ians and i think that's what should apply here all right thank you counsel i think you will take this matter o advisement when to take a ten minute recess at this