author: PER CURIAM. WOLF, C.J.,

text:
    Mark THURMAN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D03-0525.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.

      Appellant, pro se.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Mark Thurman, appeals from an order of the Florida Unemployment Appeals Commission (UAC) dismissing as untimely his appeal from an administrative decision denying unemployment compensation benefits. We affirm.

Appellant submitted an Internet application for unemployment benefits. On the application he listed his address as “POB 50541, Jacksonville, FL 32245.” Thereafter, the claims adjudicator determined that appellant was discharged for misconduct connected with his work, and was therefore disqualified from receipt of unemployment benefits. The document setting forth the adjudicator’s determination states that the notice was mailed October 1, 2002, and sent to the address appellant provided. Appellant had 20 days thereafter to file his notice of appeal with the UAC. See § 443.151(4)(b)(l), Fla. Stat. (2002).

In his notice of appeal from the denial of his claim, Thurman alleges that he did not become aware of the adjudicator’s decision until October 11, 2002, when he telephoned the claims office to inquire about the status of the claim. At that time, appellant requested a written copy of the decision. Upon its receipt, he mailed and sent by facsimile transmission his appeal from the denial of unemployment benefits. In these documents he stated, for the first time, that his address was “POB 54501,” and not, as previously listed, “POB 50541.” The notice of appeal, received by the agency on October 29, 2002, states the appeal is from the examiner’s decision dated 10/1/02, and includes the following explanation given by appellant for the late filing: “It’s a little late because I just received it about a week ago.” The cover sheet of the facsimile transmission reflects the notice of appeal was successfully transmitted on October 28, 2002.

A telephone hearing was conducted to determine the timeliness of the appeal. Appellant testified that he received the notice of the adjudicator’s denial of benefits on October 24, 2002, and he mailed his notice of appeal on October 28, 2002. He maintained that if the notice of appeal was late, it was due to the agency’s delay in providing him with the adjudicator’s decision. Appellant testified that he checks for mail at his post-office box daily.

On November 25, 2002, the appeals referee issued a decision dismissing the appeal due to lack of jurisdiction. The referee found that (1) the determination of the claims adjudicator was mailed to appellant on October 1, 2002, and (2) appellant’s appeal was not filed until October 29, 2002. The appeals referee thereupon ruled the appeal was not timely filed within the statutory 20-day period; thus, the referee was without jurisdiction to consider the merits of the case. On January 16, 2003, the UAC issued an order confirming the decision of the appeals referee.

We review an administrative agency’s interpretation of law under the “clearly erroneous” standard.. See Accord Human Res. of Fla., III, Inc. v. Unemployment Appeals Comm’n, 868 So.2d 595, 597 (Fla. 5th DCA 2004). An administra tive hearing officer’s findings of fact must be accepted by both an administrative agency and by a reviewing court, if “those findings are supported by competent, substantial evidence.” Id. See also Lucido v. Unemployment Appeals Comm’n, 862 So.2d 913 (Fla. 4th DCA 2003).

Section 443.151(4)(b), governing appeals from UAC determinations, does not provide a “good cause” exception that would permit the UAC to accept an untimely filed appeal. See Pelletier v. State, Unemployment Appeals Comm’n, 761 So.2d 413 (Fla. 2d DCA 2000). While there are no statutory exceptions for late appeals, the courts have carved out a limited exception in cases in which a claimant alleges the notice of the decision was not mailed to him or her in a timely manner. Id. at 413-14. The untimeliness of unemployment appeals has been excused on grounds of fairness and due process when the untimeliness was “occasioned by the actions of the Commission.” Assam v. Fla. Unemployment Appeals Comm’n, 871 So.2d 978, 980 (Fla. 3d DCA 2004). See also Rodriguez v. Unemployment Appeals Comm’n, 869 So.2d 657 (Fla. 3d DCA 2004); Guerrero v. Florida Unemployment Appeals Comm’n, 855 So.2d 266 (Fla. 3d DCA 2003); Reynolds v. SV Central Dania Props., Inc., 849 So.2d 1181 (Fla. 4th DCA 2003); Ebersol v. Unemployment Appeals Comm’n, 845 So.2d 945 (Fla. 5th DCA 2003); Goldberg v. Unemployment Appeals Comm’n, 842 So.2d 952 (Fla. 4th DCA 2003); Brooks v. Unemployment Appeals Comm’n, 760 So.2d 1108 (Fla. 4th DCA 2000).

Ordinarily, the mailing date shown on the face of a decision is, by itself, insufficient to rebut a party’s claim that he or she did not receive timely notice of the decision. See Ebersol, 845 So.2d at 946, n. 2 (citing Landrum v. James Rummer Timber Harvesting, Inc., 645 So.2d 577 (Fla. 2d DCA 1994)); Robinson v. Morrison, Inc., 501 So.2d 1323 (Fla. 4th DCA 1986). This rule must, however, be tempered by a showing, as earlier stated, that the untimeliness of a claimant’s appeal was caused by the actions of the Commission. In the case at bar, the failure of appellant to prosecute his appeal within the time required was solely attributable to his own negligence in not providing the Commission with an accurate address. Although we have found no cases relating to the issue of whether a party may be excused for not timely appealing an administrative decision under circumstances where the untimeliness was the result of the party’s own negligence, we have consulted persuasive federal authority, because the resolution of the issue turns primarily on whether the notice requirements of due process were satisfied.

In Green Tree Fin. Servicing Corp. v. Karbel, 220 B.R. 108 (BAP 10th Cir.1998), the court ruled that the notice provided in a debtor’s motion for valuation of a creditor’s collateral, which was mailed to the address designated by the creditor pursuant to the clerk’s Practice and Procedure Guide, and which was not received by the creditor’s consumer-goods division within the time allotted for it to respond, satisfied due process, notwithstanding that the Guide was not legally binding, and the creditor intended that the address which it had designated be used only for mobile-home transactions, rather than for consumer goods, which were the subject of the notice. The court began its analysis- by observing that “[sjervice of process must satisfy both the statute under which service is effectuated and constitutional due process.” Id. at 112. It observed that Federal Rule of Bankruptcy Procedure 7004(b)(3), providing for mailing a copy of the summons and complaint to the categories of persons listed in the rule, was complied with in that the debtor properly mailed his notice to the address supplied by the creditor to the clerk of the court which was used in the standard creditor-address system implemented in the clerk’s office. In rejecting the creditor’s argument that the Guide, which established the system for serving such notices, was not legally binding, the court answered: “[A] party ‘cannot submit an address to the court as that to which all notices should be sent and then argue that it was not properly served when notices are sent to that address.’ ” Id. (quoting with approval In re Village Craftsman, Inc., 160 B.R. 740, 745 (Bankr.D.N.J.1993).)

The court next decided that all due process requirements had been satisfied. The due process clause requires notice “ ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Id. at 113 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). The court in Green Tree concluded that the notice afforded pursuant to the system followed by the clerk was reasonably calculated to apprise the creditor of the pendency of the action and provide it with an opportunity to be heard, despite the fact that the creditor “mishandled” the notice. Id.See also Teitelbaum v. Equitable Handbag Co., 49 B.R. 536, 540 (Bankr.S.D.N.Y.1985) (finding that because the defendant had supplied address where the proof of claim was sent, notice was reasonably calculated to provide defendant with actual notice of the proceeding; therefore, defendant could not validly assert that service of process was defective or violated its rights).

In the case at bar, section 443.151(4)(b)(l) requires the Commission to mail its determination to the claimant at his “last known address.” This it did. Clearly such notice was reasonably calculated to afford Thurman both with its decision, and an opportunity for him to present his objections. As a consequence, because claimant’s last known address was that which he erroneously furnished the Commission, he cannot complain that he was not properly served with the adjudicator’s determination.

AFFIRMED.

ERVIN and VAN NORTWICK, JJ„ concur; WOLF, C.J., specially concurs with opinion.

WOLF, C.J.,

specially concurring.

I concur in the well written opinion of the majority. I write to point out that the statement within the opinion which reads “[ojrdinarily, the mailing date shown on the face of the decision is, by itself, insufficient to rebut a party’s claim that he or she did not receive timely notice of the decision” is neither the holding in this case nor a principle that has been adopted by this court.

Section 90.406, Florida Statutes, states, Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.

Professor Ehrhardt in his treatise on evidence comments on the statutory section:

When a business or other organization establishes a routine method of performing a particular act, proof of that routine method is admissible under section 90.406 to prove that the act occurred on a particular occasion, even though there is no corroboration that the act occurred. Evidence of a business’s routine office procedure with regard to mailing letters will be admissible to show the letter in question was mailed.

Charles W. Ehrhardt, Florida Evidence, § 90.406 (2004 Edition).

The numerous cases cited by Ehrhardt, including Home Ins. Co. v. C. & G. Sporting Goods, Inc., 453 So.2d 121, 123 n. 3 (Fla. 1st DCA 1984), support the proposition that evidence of routine office practices satisfies the general requirement demonstrating mailing. In fact, it would be impossible for an organization with a large amount of employees and paperwork to ever demonstrate mailing if they did not have the benefit of the rule relating to routine business practices.

While the cases from the other district courts cited by the majority appear to stand for the proposition that we should deviate from the general business practice rule in unemployment compensation cases, they do not cite to section 90.406, nor do they set forth a compelling reason for departing from the general rule embodied within the statute.

      . Section 443.151 (4)(b)( 1), Florida Statutes (2002). provides:
      The claimant or any other party entitled to notice of a determination as herein provided may file an appeal from such determination with an appeals referee within 20 days after the date of mailing of the notice to her or his last known address or, if such notice is not mailed, within 20 days after the date of delivery of such notice.
      (Emphasis added.)


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ulysses LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1485.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant and Appellant, pro se.
    Charles J. Crist, Jr., Attorney General, and Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Ulysses Lynch, appeals the trial court’s order denying his motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2), contending that his prior conviction for possession of cocaine within five years of his instant conviction cannot constitute a qualifying offense pursuant to section 775.084(l)(a)(2)(b) and (l)(a)(3), Florida Statutes (2002), when read in pari mate-ria. We affirm the trial court’s conclusion that this “is not provided in the statute and should not be read into the statute as a matter of statutory construction.” See Edwards v. State, 743 So.2d 76 (Fla. 5th DCA 1999) (“Nothing in the statute ... prohibits sentencing a defendant as a habitual felony offender when the current offense was committed within five years of release from prison for a conviction for purchase or possession of a controlled substance in violation of 893.13.”).

AFFIRMED.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    BOONE WASTE MANAGEMENT and Gallagher Bassett Services, Inc., Appellants, v. John CARMAN, Appellee.
    No. 1D03-2504.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.
    Pamela Craig of Stump, Webster, Craig, Staten & Recksiedler, P.A., Orlando, for Appellants.
    Dora Kerner, Gainesville, and Sharon H. Proctor, Avon Lake, OH, for Appellee.
   PER CURIAM.

The employer/carrier and the claimant in this workers’ compensation case challenge various aspects of the final order entered by the judge of compensation claims. Although the judge erred in failing to authorize the employer/carrier to take a crédit in the amount of temporary partial disability benefits already paid for the period of January 1, 2001 through February 25, 2001, against amounts payable for temporary total disability benefits awarded for that same period of time, we otherwise find no error in the order under review. Accordingly, except as to the failure to authorize the credit, the order is affirmed, and this case is remanded for the judge to authorize an appropriate credit.

ERVIN, ALLEN and HAWKES, JJ., concur.


author: HAWKES J.

text:
    Linda GEROW, as personal representative for the estate, etc., Appellant, v. YESTERDAY’S and Fireman’s Fund Insurance Company, Appellees.
    No. 1D03-2818.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.
    Kevin G. Bennett; Grossman & Goldman, P.A., Boca Raton, for Appellant.
    Susan J. Arrick; Arrick, Peacock, Hodges & Wiener, Miami, for Appellee.
   HAWKES J.

We are asked to determine whether the amendments adopted by the 2000 Florida Legislature to section 440.20(ll)(c), Florida Statutes (2001), eliminated the JCC’s jurisdiction to determine whether a settlement agreement was reached, or to determine the terms of such an agreement. Based on the reasoning discussed in Jacob-sen v. Ross Stores & Sedgwick Claims, 1D03-2868, 882 So.2d 431, 2004 WL 1877558 (Fla. 1st DCA Aug. 24, 2004), we conclude they do not. Because it is within the province of the JCC to determine whether a settlement agreement was reached, and if so, to establish its terms, the JCC’s order to the contrary is REVERSED.

ERVIN and ALLEN, JJ., concur.


author: BENTON, J. POLSTON, J.,

text:
    Willie Fred BAUCHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2855.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.
    Nancy A Daniels, Public Defender; Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal from his conviction fox-resisting an arresting officer with violence, in contravention of section 843.01, Florida Statutes (2002), Willie Fred Baucham contends that the trial court erred in precluding cross-examination of the arresting officers about antecedent events which, he maintains, biased them against him, motivated their use of excessive force during the arrest, and led to their giving false testimony against him at trial. Persuaded the trial court erred in failing' to allow the defense to pursue this line of questioning, we reverse and remand for a new trial.

Mr. Baucham’s defense at trial was that he was defending himself against unlawful or excessive force. While “[n]on-violent resistance to an unlawful arrest is no crime[, s]ee State v. Espinosa, 686 So.2d 1845 (Fla.1996); State v. Saunders, 339 So.2d 641 (Fla.1976),” Sims v. State, 743 So.2d 97, 100 (Fla. 1st DCA 1999), section 843.01 condemns violent resistance even to an unlawful arrest. On the other hand, the law “ ‘permitfs] an individual to defend himself against unlawful or excessive force, even when being arrested.’ ” State v. Holley, 480 So.2d 94, 95 (Fla.1985) (quoting Ivester v. State, 398 So.2d 926, 930 (Fla. 1st DCA 1981)).

The defense theory was that Captain Steve James and Sergeant Gary Hunnings of the Apalachicola Police Department, the officers who arrested Mr. Baucham, used unlawful or excessive force against which he lawfully defended himself. See Johnson v. State, 634 So.2d 1144, 1145 (Fla. 4th DCA 1994); Holley, 480 So.2d at 95-96; Ivester, 398 So.2d at 929-30. Mr. Bauc-ham contended that they arrested him on trumped up charges (as to which the trial court did in fact grant the defense’s motion for judgment of acquittal at the close of the State’s case). His theory was that they used excessive force in effecting his arrest since they had it in for him, because he had on another occasion complained about their job performance to the chief of police who had called them to task as a result.

The defense sought to establish, by cross-examining Captain James and Sergeant Hunnings, that (as the police chief had apparently already testified on deposition) Mr. Baucham had contacted the police chief, the officers’ supervisor, and complained about their delay in the handling of a case. Mr. Baucham sought to prove that, because he had complained to the police chief, the police chief had instructed Captain James and Sergeant Hunnings to complete paperwork they had failed to submit. Mr. Baucham sought to show that this caused the officers to be “biased against him because he got them in trouble with ... their boss,” “giving them a motive to try and get even with Mr. Baucham.”

The trial court ruled that no cross-examination about Mr. Baucham’s complaints to the police chief would be permitted, declaring the matter collateral and irrelevant. See Griffin v. State, 827 So.2d 1098, 1099 (Fla. 1st DCA 2002) (“An issue is collateral for purposes of impeachment by contradiction, if it cannot be introduced for any reason other than contradiction.”); Strasser v. Yalamanchi, 783 So.2d 1087, 1095 (Fla. 4th DCA 2001) (“Evidence is collateral and therefore inadmissible when it neither (1) is relevant to prove an independent fact or issue nor (2) would discredit a witness by establishing bias, corruption, or lack of competency on the part of the witness.”).

But a witness may be impeached by testimony tending to prove bias, even if the testimony concerns facts not otherwise germane. See § 90.608, Fla. Stat. (2002) (“Any party, including the party calling the witness, may attack the credibility of a witness by: ... (2) Showing that the witness is biased.”); see also Harmon v. State, 394 So.2d 121, 125 (Fla. 1st DCA 1980) (“All witnesses are subject to cross-examination for the purpose of discrediting them by showing bias, prejudice or interest.”). The cross-examination proposed here went to the credibility of Captain James and Sergeant Hunnings, and should have been allowed. See Sanders v. State, 707 So.2d 664, 667 (Fla.1998) (“[L]imiting cross-examination in a manner that precludes relevant and important facts bearing on the trustworthiness of testimony constitutes error, especially when the cross-examination is directed at a witness for the prosecution.”); Livingston v. State, 678 So.2d 895, 897 (Fla. 4th DCA 1996) (“Because liberty is at risk in a criminal case, a defendant is afforded wide latitude to develop the motive behind a witness’ testimony....”); Lewis v. State, 570 So.2d 412, 416 (Fla. 1st DCA 1990) (“It is, of course, fundamental that a criminal defendant has a constitutional right to full and fair cross-examination to show a witness’s possible bias or motive to be'untruthful.”), quashed on other grounds, Lewis v. State, 591 So.2d 922 (Fla.1991).

The proposed cross-examination also went to the putative motive for the alleged use of excessive force by Captain James and Sergeant Hunnings in the first place. For this reason, too, failing to permit the line of questioning proposed was error. See Lawson v. State, 651 So.2d 713, 715 (Fla. 2d DCA 1995) (“If the evidence is relevant to independently prove a material fact or issue, or if it goes to discredit a witness by pointing out bias, corruption, or lack of competency, it will be allowed.”); compare Griffin, 827 So.2d at 1099 (finding no abuse of discretion in excluding testimony, as collateral, where offered solely to contradict a witness’s testimony on an immaterial fact, and not to establish bias, corruption, or lack of competency). “[A defendant] has a constitutional right to confront his accuser and develop his defense through reasonable cross-examination.” Lewis v. State, 591 So.2d at 925.

Reversed and remanded.

BROWNING, J., concurs; POLSTON, J., dissents with opinion.

POLSTON, J.,

dissenting. .

The excluded testimony the lawyers proffered indicates that the paperwork in every Franklin County case takes a long time to be submitted, the paperwork was provided by the officers, and the officers were not reprimanded or disciplined in any way. The trial judge made a close relevance call, which I would affirm because there was no abuse of discretion. See Smith v. State, 843 So.2d 1010, 1011 (Fla. 1st DCA 2003) (ruling that the trial court did not abuse its discretion by prohibiting cross-examination of two police officers regarding prior reprimands); Forte v. State, 662 So.2d 432, 433 (Fla. 3d DCA 1995) (ruling that the trial court did not abuse its discretion by limiting cross-examination of police officers who were witnesses as to a prior internal affairs investigation); Sexton v. State, 697 So.2d 833, 837 (Fla.1997) (stating that “[a] trial court has broad discretion in determining the relevance of evidence and such a determination will not be disturbed absent an abuse of discretion”).


text:
    Thomas FORD, Petitioner, v. James CROSBY, Jr., Secretary, Florida Department of Corrections, Respondent.
    No. 1D04-1107.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.

      Thomas Ford, pro se, petitioner.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The order of dismissal is reversed on the authority of Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). The case is remanded to the Circuit Court for Leon County for a ruling on the merits.

REVERSED and REMANDED.

BOOTH, WEBSTER and DAVIS, JJ„ concur.


text:
    Louis SCLEASE, III, d/b/a Sclease Construction Co. # CG C036233, Appellant, v. CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    No. 1D04-1636.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.
    William R. Waters, Jr., Pearson & Waters, P.A., Tallahassee, for Appellant.
    Adrienne C. Rodgers and Gail Scott Hill, Tallahassee, for Appellee.
   PER CURIAM.

Finding that a “Final Order” filed on October 9, 2003 “was not properly served,” the Construction Industry Licensing Board filed a “NOTICE OF REFILING OF FINAL ORDER,” on March 12, 2004. The NOTICE OF REFILING OF FINAL ORDER does not purport to be an order itself. While an agency has authority to vacate and reenter otherwise final orders in order to avoid due process problems, see Millinger v. Broward County Mental Health Div. And Risk Management, 672 So.2d 24 (Fla.1996); Johnson v. Terry Hunt Construction Co., 878 So.2d 1282 (Fla. 1st DCA 2004); Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998), the NOTICE OF REFILING OF FINAL ORDER does not purport to be such a superseding order.

DISMISSED.

BENTON, BROWNING and POLSTON, JJ., concur.


text:
    FIRST PROFESSIONALS INSURANCE COMPANY, INC., Appellant, v. HEALTHMARK OF WALTON, INC., d/b/a Walton Regional Hospital, and Linda Yell, an individual, Appellees.
    No. 1D04-2645.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.

      Harold R. Mardenborough Jr. of McFarlain & Cassedy, Tallahassee; Richard B. Collins and A. Dean Johnson, Tallahassee; Jennifer S. Carroll, Palm Beach Gardens, for Appellant.
    Louis K. Rosenbloum, Pensacola, Robert J. Mayes and Jonathan Mayes, Gulf Breeze, W. Douglas Hall, Tallahassee, for Appellee Healthmark of Walton, Inc.
    Marcus J. Michles II, Pensacola, for Ap-pellee Linda Yell.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of June 28, 2004, this appeal is hereby DISMISSED for lack of jurisdiction. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); Monticello Ins. Co. v. Thompson, 743 So.2d 1215 (Fla. 1st DCA1999).

WOLF, C.J., ERVIN and LEWIS, JJ, concur.


author: CASANUEVA, Judge.

text:
    MARCO ISLAND CIVIC ASSOCIATION, INC., a Florida not-for-profit corporation; and Sally Bhavnani, and the class she represents, Appellants, v. Luc Christian MAZZINI, Appellee.
    No. 2D03-2361.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2004.

      Jeffrey D. Fridkin and Jacqueline J. Buyze of Grant, Fridkin, Pearson, Athan & Crown, P.A., Naples, for Appellants.
    Michael R.N. McDonnell of McDonnell Trial Lawyers, Naples, for Appellee.
   CASANUEVA, Judge.

Marco Island Civic Association, Inc., and a class of homeowners appeal from a final judgment declaring void certain deed restrictions on three lots owned by the-plaintiff, Dr. Luc Christian Mazzini. The deeds restrict the development of each lot to one detached single-family dwelling not to exceed two stories in height. The 'final judgment voiding the restrictions permits Dr. Mazzini to build a medical office building on the property. Because such restrictions cannot equitably be removed as long as the restriction is for the benefit of and remains of any substantial value to the dominant estate, we reverse.

In 1995, Dr. Mazzini acquired lots 7, 8, and 9 in Marco Beach Unit Three Subdivision of Collier County with the intention to construct a medical arts building. At that time the lots were bordered by an office building to the west and a day care center to the east. Dr. Mazzini’s property fronts on State Road 92. To the extent that they are developed, the lots to the rear are residential or adjoin residential properties. Unfortunately for Dr. Mazzini, even though the deeds put him on constructive notice of the restrictions, he did not actually become aware of the limitation on the type of building he was permitted to build until some time after the purchase. Once Dr. Mazzini learned of the restrictions, he instituted procedures to have the zoning applicable to his lots changed from residential to C-l, a type of zoning used to buffer residential districts from nearby commercial areas, and in 1998 the government rezoned his property. He then filed this action for declaratory relief, seeking to void the deed restrictions on the ground that the area surrounding his lots had become commercialized.

In support of his cause of action, Dr. Mazzini testified concerning the zoning re-designation as well as the physical changes that had occurred in the area since he bought his property. Since that time, a fire station had been constructed or had so expanded in size that it was often referred to as the “Taj Mahal.” A former bank building now houses both City Hall and the police station. Furthermore, within 150 yards of his property, Marco Hospital has doubled in size, and there exist plans for construction of an assisted care facility. The day care facility immediately to the east of his property has also undergone changes: the parking lot has been paved, an apron-type driveway has been added, and the center remains open as late as 11 p.m. Furthermore, although he did not present any statistical or other evidence concerning traffic flow on State Road 92 at the time he purchased his lots, Dr. Mazzini did show the court a DVD depicting traffic at the time of the trial.

Several nearby homeowners testified in opposition to Dr. Mazzini’s action. They demonstrated that more residences had been built in the subdivision since Dr. Mazzini acquired his lots; thus, they concluded, the residential character of the subdivision had increased rather than decreased. Furthermore, despite the rezoning and other nearby commercial uses, these neighbors testified that their residences had increased in value. The owner of property located immediately to the rear of the existing medical center, however, testified that no one would buy his home for that reason, and a second medical building would further deter potential purchasers. -

The trial court weighed this evidence and made several findings. The court concluded that there had been many changes in the character of the surrounding neighborhood that materially affected the restricted land and frustrated the object of those restrictions. Dr. Mazzini’s lots, the court observed, are located at the edge of the subdivision on what is now a busy thoroughfare whereas the majority of the lots in Unit Three front interior residential streets. The court concluded that this was a unique situation, because Dr. Mazzini’s lots are situated between commercial properties on the outer fringe of the subdivision and face other medical and commercial activity.- Furthermore, Dr. Mazzini proposes to construct an attractive low-key medical building that would function as an intermediate buffer between more intense commercial activity and the residential areas. The trial court thus decided to cancel the restrictive covenants on Dr. Mazzini’s lots to the extent necessary to allow him to build and operate his medical arts building as proposed.

Any analysis of a trial court’s decision to cancel a restrictive covenant must begin with an examination of controlling precedent from the Florida Supreme Court. Seminal in this field is the 1938 case of Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938), in which the trial court was faced with determining whether a restrictive covenant requiring that the subject land be used only for residential purposes remained enforceable. The supreme court affirmed the chancellor’s decision that no relief from the restrictions was appropriate, noting that all of the changes to the property had taken place before the purchaser acquired the property, thereby putting him on notice of the nature of the area. Thus, although the Avondale court recognized the general rule that a “change in the circumstances ánd the neighborhood materially affecting the lands will warrant the granting of relief from restrictive covenants,” id. at 138, relief was inappropriate in that case.

The supreme court reaffirmed the vitality of the Avondale rule in Wood v. Dozier, 464 So.2d 1168 (Fla.1985). The First District had questioned the continued application of the Avondale holding and had certified the issue to the supreme court. See Dozier v. Wood, 431 So.2d 184 (Fla. 1st DCA 1983). In answering the First District’s concerns, the supreme court reiterated that a property owner clearly cannot rely on changes that took place before his or her acquisition of the property when seeking to remove a deed restriction. “Where a purchaser of land intends to use it for a purpose not allowed by a restrictive covenant, he should seek to have the deed restriction removed before purchasing the property.” Wood v. Dozier, 464 So.2d at 1170. Moreover, such restrictions “serve a valid public purpose in enabling purchasers of property to control the development and use of property in the surrounding environment.” Id.

The issue of whether and when a change in the character of the neighborhood has occurred is a question of fact. Vetzel v. Broum, 86 So.2d 138, 140 (Fla. 1956). Because the trial court in this case weighed the evidence of changed circumstances and made factual findings in Dr. Mazzini’s favor, it would be inappropriate for this court to disturb those findings on appeal. However, the inquiry does not end with the determination that the character of the neighborhood has changed since Dr. Mazzini purchased his lots.

In addition to delineating factors that will not support removal of deed restrictions, the supreme court has also indicated, in the positive sense, what a property owner must demonstrate to void a deed restriction. The “test to be applied is whether or not the original intent of the parties to the restrictive covenants can be reasonably carried out or whether the changed conditions are such as to make ineffective the original purpose of the restrictions.” Wahrendorff v. Moore, 93 So.2d 720, 722 (Fla.1957). In Wahren-dorjf, as here, a property owner sought to void a restrictive covenant imposed by a plat that limited the use of the property to no more than a single residence. In its review of the evidence, the supreme court noted that the fact that the area had been rezoned, as here, was an admissible but not conclusive fact. In upholding the residential restriction, the court observed that the subdivision owners had purchased and built on their property in reliance upon the restriction. Although the impact of this case is to some extent limited because the holding turns on the court’s deference to the chancellor’s evaluation of the credibility of the evidence rather than upon its sufficiency or lack thereof, Wahrendorjf is nevertheless instructive because of its conclusion that voiding the restriction would result in a chain reaction. As the use of the properties changed, eventually their residential value would be lost. Id. at 723.

In AC Associates v. First National Bank, 453 So.2d 1121, 1127 (Fla. 2d DCA 1984), this court stated and applied the following rule:

[I]n an action to cancel a restrictive covenant^] the test is whether or not the covenant is valid on the basis that the intention of the parties can be carried out despite alleged materially changed conditions or, on the other hand, whether the covenant is invalid because changed conditions have frustrated the object of the covenant without fault or neglect on the part of the party who seeks to be relieved from the restrictions. See Barton v. Moline Properties, Inc., 121 Fla. 683, 164 So. 551 (1935). If a restriction on the servient estate was for the benefit of, and is still of substantial value to, the dominant estate, it will be enforced regardless of changed conditions. Barton, 164 So. at 557; Acopian v. Haley, 387 So.2d 999, 1001 (Fla. 5th DCA 1980).

Subsequently, in Essenson v. Polo Club Associates, 688 So.2d 981, 984 (Fla. 2d DCA 1997), this court held that the party seeking to be relieved of the deed restriction had failed to carry its burden of proof by showing that “the change occurred, (1) after the agreement, (2) without any fault on its part, and (3) that the change destroyed all value of the covenant,” in spite of the fact that the plaintiff demonstrated changed circumstances resulting from a rezoning affecting its property. To the extent that Essenson refers in its third element of proof to destruction of all value of the covenant as opposed to the AC Associates determination that the restriction must remain of substantial value, we note the apparent conflict. However, in Essenson, the court observed that the “covenant continues to provide benefits,” thereby applying the correct standard. 688 So.2d at 984.

The equities are admittedly stacked against one seeking to void á restrictive covenant if he or she has purchased the property with actual or constructive notice' of its existence. In 1956, the supreme court observed in Vetzel, 86 So.2d at 140, that “[s]uch restrictions are favored’by our public polity today,” and we have’ uncovered no case law suggesting that our public policy is any different in 2004. It is apparent that the appropriate focus in cases such as this must be on the dominant rather than the servient estate. Although the highest and best use of Dr. Mazzini’s property might well be a medical arts building, that consideration, under the present state of the law, is of little consequence. Rather, Dr. Mazzini cannot legally prevail unless he presents evidence that the area has so changed in character from the time that he bought his property that construction of single-family homes on his lots would no longer be of substantial value to the subdivision.

Here, the evidence was legally insufficient for the trial court to conclude that enforcement of the deed restriction would no longer substantially benefit the subdivision as a whole. In a similar situation, the Fifth District held that evidence of a general increase in commercial traffic, a change of use of a warehouse to an office, and the graveling of a driveway fell “far short of a showing of material changes in the character of the neighborhood” that had occurred subsequent to the purchase of the property by the plaintiff. Lancaster v. Banks, 492 So.2d 464, 465 (Fla. 5th DCA 1986). More important, however, as in Lancaster, Dr. Mazzini presented no evidence establishing that the deed restrictions no longer confer substantial value on the dominant estate, and the trial court erred in cancelling the deed restrictions in the absence of such evidence.

Reversed and remanded for entry of judgment in favor of the defendants.

WHATLEY and WALLACE, JJ., concur.


author: | JOHNSON, Justice. | .PER CURIAM.

text:
    STATE of Louisiana v. EXPUNGED RECORD (NO.) 249,044.
    No. 2003-KA-1940.
    Supreme Court of Louisiana.
    July 2, 2004.
    Opinions on Rehearing Sept. 24, 2004.

      Hon. Charles C.' Foti, Jr., Attorney General, Hon. James C. Downs, District Attorney, Burton P. Guidry, Asst. Attorney General, H. Bradford Calvit, Alexandria, Counsel for Applicant.
    Thomas D. Davenport, Jr., W. Jay Lu-neau, Counsel for Respondent.
    Donald W. North, Baton Rouge, Counsel for Southern University Criminal Law Clinic (Amicus Curiae).

      . See LSA-R.S. 44:9 Historical and Statutory Notes.

   | JOHNSON, Justice.

We are called upon in this case to determine the constitutionality of LSA-R.S. 44:9(B)(1) which provides for the expungement and destruction of an arrest record when an individual was arrested for the violation of a misdemeanor offense, but prohibits destruction of the arrest record when an individual was arrested for the violation of a felony offense. The trial court ruled that the statute was unconstitutional because it violated appellee’s equal protection rights under the Louisiana and United States Constitutions and the Separation of Powers Doctrine. For the reasons that follow, we reverse the trial court’s ruling and hold that LSA-R.S. 44:9(B)(1) is constitutional because the statutory classification is rationally related to a valid state interest.

J^FACTS and PROCEDURAL HISTORY

On January 9, 1998, Appellee was arrested by the Rapides Parish Sheriffs Office for the felony offenses of Obstruction of Justice, in violation of LSA-R.S.14:130.1, and False Impersonation, in violation of LSA-R.S. 14:112.1. The alleged violations occurred during the course of a criminal investigation where appellee, who at the time was a deputy marshal for the City of Monroe, allegedly interviewed a minor without proper authorization and misrepresented himself as a U.S. marshal. On September 8, 1998, after review, the Rapides Parish District Attorney’s office dismissed the felony charges against ap-pellee. Appellee then moved to have his arrest record expunged and destroyed.

The trial court ordered appellee’s arrest record expunged, but not destroyed. After the time limitations for instituting prosecution of the crimes expired, Appel-lee filed a Rule to Modify Judgment or, Alternatively, Petition for Declaratory Judgment where he asserted that “(o)n January 9, 2002, the Petitioner became vested with the right to have the January 9, 1998 arrest record completely destroyed as if it never existed.” In the alternative, Appellee argued that LSA-R.S. 44:9(B)(1) was unconstitutional because it violated his equal protection rights under the Louisiana and United States Constitutions and because the statute violated the Separation of Powers Doctrine.

On March 11, 2002, the trial court granted Appellee’s motion and directed all appropriate entities to destroy all records in connection with Appellee’s arrest of January 9, 1998. The Rapides District Attorney’s Office appealed the decision to the Third Circuit Court of Appeal.

| ?iThe Court of Appeal concluded that LSA-R.S. 44:9 provided for the expungement and destruction of misdemeanor arrest records but that there was no such provision for felony arrest records. State v. Expunged Record Number 219,011, 02-589 (La.App. 3 Cir.2002), 833 So.2d 553, 555. Therefore, the Court of Appeal reversed the trial court’s ruling and held that the “trial court’s grant of Appellee’s request for destruction of his felony arrest records was a misapplication of the law.” Id.

Regarding the constitutionality of the statute, the Court of Appeal determined that there was no evidence in the record that the Attorney General had ever been served, as required by law when the constitutionality of a statute is at issue. Id. As a result, the Court of Appeal determined that the issue of constitutionality was not properly before the court, and thus the case was remanded to the trial court for further proceedings. The Attorney General was subsequently served, and on February 10, 2003, a hearing was held in the trial court on the constitutional issue.

On April 3, 2003, the trial judge signed a final judgment declaring LSA-R.S. 44:9(B)(1) unconstitutional because the State failed to prove a legitimate governmental interest was served by the statute and because the Statute violated the Separations of Powers Doctrine. The trial court’s judgment was appealed to this court by the Attorney General’s office, the Rapides Sheriffs Office, and the Rapides District Attorney’s Office. Our appellate review is governed by LSA-Const. Art. V, Section 5(D) which provides that “a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional ...”

LAW and DISCUSSION

The determination of a statute’s constitutionality is a purely judicial function, which is constitutionally vested in the courts. LSA-Const. Art. 5, Sec. 1. 1 ¿Constitutional scrutiny favors the statute. State v. Griffin, 495 So.2d 1306, 1308 (La.1986). Statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. State v. Hart, 96-0599 (La.1/14/97), 687 So.2d 94. In adjudicating a constitutional challenge, the court must analyze and interpret the language of the constitutional provision specified by the challenger. Louisiana Municipal Association v. State of Louisiana, 00-0374 (La.10/6/00), 773 So.2d 663, 667. Constitutional provisions are to be construed and interpreted by the same rules as are other laws. Louisiana Dep’t. of Agriculture and Forestry v. Sumrall, 98-1587 (La.3/2/99), 728 So.2d 1254.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. Art. 9. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. LSÁ-C.C. Art. 12.

Under the general rules of statutory construction, courts begin their review with the premise that' legislation is the solemn expression of legislative will, and, therefore, the interpretation of the law primarily involves the search for the legislature’s intent. Cole-Miers Post 3619 V.F.W. of De Ridder v. State, Department of Revenue & Taxation, Office of Alcoholic Beverage Control, 1999-2215 (La.1/19/00), 765 So.2d 312. However, legislative intent is not the appropriate starting point for statutory interpretation. Rather, the appropriate starting point is the language of the statute itself. In re Louisiana Health Service and Indem.. Co., 1998-3034 (La.10/19/99), 749 So.2d 610, 615.

In the present case, LSA-R.S. 44:9(B)(1) provides:

B. (1) Any person who has been arrested for the violation of a felony offense or who has been | Sarrested for a violation of R.S. 14:34.2, R.S. 14:34.3, or R.S. 14:37 may make a written motion to the district court for the parish in which he was arrested for the expungement of the arrest record if:
(a) The district attorney declines to prosecute, or the prosecution has been instituted, and such proceedings have been finally disposed of by acquittal, dismissal, or sustaining a motion to quash; and
(b) The record of arrest and prosecution for the offense is without substantial probative value as a prior act for any subsequent prosecution. (Emphasis added)

However, only expungement, not destruction, of a felony arrest record is allowed. LSA-R.S. 44:9(B)(2) provides, in pertinent part:

(2) If, after a contradictory hearing with the district attorney and the arresting .law enforcement agency, the court finds that the mover is entitled to the relief sought for the above reasons, it shall order all law enforcement agencies to expunge the record of the same in accordance herewith. (Emphasis added).

The inability to have their arrest record destroyed distinguishes this class of persons from individuals arrested for violations of misdemeanor offenses.

LSA-R.S. 44:9(A)(1) grants a person arrested for the violation of a misdemeanor offense the ability to make a written motion to the district, parish, or city court in which the violation was prosecuted or to the district court located in the parish in which he was arrested, for the expungement of the arrest record if “(a) The time limitation for the institution of prosecution of the offense has expired, and no prosecution has been instituted; or (b) If prosecution has been instituted, and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.” Although LSA-R.S. 44:9(A)(1) instructs persons arrested for misdemeanor violations to make a written motion “for the expungement of the arrest | ¿record,” LSA-R.S. 44:9(A)(2) requires the court, if it determines that the mover is entitled to the relief sought, to “order all agencies and law enforcement offices having any record of the arrest” to “destroy any record of arrest, photograph, fingerprint, or any other information of any and all kinds or descriptions.” (Emphasis added)

LSA-R.S. 44:9 was enacted in 1970 and has since been amended more than a dozen times. The convoluted nature of the statute has previously been noted by this court. Referring to LSA-R.S. 44:9, and related statutes, this court noted in State v. Savoie, 92-1586, 93-1955 (La.5/23/94), 637 So.2d 408, that “(o)ur observation that the clarity of these laws, as amended, leaves much to be desired is an understatement. Savoie at 409. However, the statute, as presently written, is clear and unambiguous in that it provides for the expungement and destruction of a misdemeanor arrest record, but prohibits destruction of a felony arrest record.

Expungement and destruction are different. LSA-R.S. 44:9(G) defines ex-pungement in the following manner:

“Expungement” means removal of a record from public access but does not mean destruction of the record. An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry or the Louisiana State Board of Examiners of Psychologists.

In Savoie, supra, this court concluded that, “the word ‘expungement’ is distinct from the word ‘destruction’ and that the two words cannot be used interchangeably or to mean the same thing. Public records which may be ‘expunged’ need not be ‘destroyed.’ ” Id. at 410. Appellee argues that the inability to have his record destroyed creates a burden on the class of individuals arrested for felony violations. |7The record of their arrest and prosecution continues to exist, while the record of the misdemeanor arrest is destroyed. The question for the court is whether or not that burden is constitutional.

Constitutional Framework

The doctrine of equal protection is embodied in our state and federal constitutions. Article I, Section 3 of the Louisiana Constitution and the Fourteenth Amendment to the United States Constitution provide that no person shall be denied the equal protection of the laws. Thus, the. judiciary’s role is to analyze a law to determine whether it abridges an individual’s right to equality, and to determine its constitutionality.

The federal courts have used a three-tier system in order to determine whether a statute violates the equal protection clause. Racial classifications are constitutionally suspect, and subject to the most rigid scrutiny, because the core of the Fourteenth Amendment is the prevention of unjustified official distinctions based on race. Thus, racial classifications bear a far heavier burden of justification than other classifications. Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969).

IsSimilarly, classifications that infringe upon substantive due process rights, such as the right to interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and the right to vote, Harper v. Virginia Bd. Of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), and 1st Amendment rights, such as the right to free speech, Police Department of Chicago v. Mosley, 408 U.S, 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), and the right to associate, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), are also strictly scrutinized and thus held unconstitutional absent a compelling governmental justification.

The middle-tier level of analysis, commonly referred to-as intermediate scrutiny, is applied by the courts in cases involving important, but not fundamental interests, such as cases involving gender, Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), alienage, Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), illegitimacy, Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), and wealth, Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941). When applying eqüal protection intermediate scrutiny analysis, the Court will uphold government conduct if it is substantially related to an important governmental interest.

Lastly, the lowest level of equal protection analysis is referred to as minimal scrutiny. Where legislation does 'not burden a suspect class or a constitutionally protected right, then the legislative act faces minimal scrutiny. This scrutiny is commonly referred to as the rational basis test. For example, the rational basis test is applicable in cases that involve economic legislation, City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), and social legislation, City of Cle-burne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

In Sibley v. Bd. Of Sup’rs of Louisiana State U., 477 So.2d 1094, (La.1985) this court joined a growing number of state courts and criticized the three-tier level |9of equal protection analysis employed by the federal courts. In a thorough analysis and critique of the three-tier federal system, this court concluded that “(t)he federal three level system is in disarray and has failed to provide a theoretically sound framework for constitutional adjudication.” Id. at 1107. Instead, Louisiana instituted a workable alternative whereby “(t)he constitutionality of governmental action would not depend upon the level of scrutiny applied in a particular case,” but “would naturally focus upon governmental and individual interests, resulting in a more precise and reliable evaluation of constitutional questions.” Id.

Louisiana’s equal protection analysis articulated by the court in Sibley, supra, commands the court to decline enforcement of a legislative classification of individuals in three different situations:

(1) When the law classifies individuals by race or religious beliefs, it shall be repudiated completely;
(2) When the statute classifies persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis; and
(3) When the law classifies individuals on any other basis, it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest. Id. at 1107.

Under the first situation, statutory classifications based on race or religious beliefs are absolutely forbidden classifications. In Louisiana Associated General Contractors, Inc. v. State of Louisiana, through the Division of Administration, Office of State Purchasing, 95-2105 (La.3/8/96), 669 So.2d 1185, this court held that the minority-set aside provisions of the Louisiana Minority and Women’s Business Enterprise Act violated the equal protection clause of the Louisiana Constitution. Id. |1nIn so doing, this court concluded that LSA-Const. Art. I, Sect. 3 absolutely prohibits any state law which discriminates on the basis of race. Id. at 1196.

Under the second situation, a statute is unconstitutional unless the proponents of the statute prove that the classification substantially furthers an appropriate state purpose. In Manuel v. State of Louisiana, 95-2189 (La.1996), 692 So.2d 320, 338 this court applied this level of equal protection analysis in a case involving the constitutional challenge of a statute that raised the minimum drinking age from eighteen to twenty-one. Id. at 340. This court made the following determination,

(T)he standard of scrutiny appropriate for review of a statute that classifies persons on the basis of age is whether the classification substantially furthers an appropriate governmental purpose. There is general agreement that improving highway safety is an appropriate governmental purpose, and an important one. The narrow issue is thus whether the age classification in these statutes substantially furthers that purpose.

The court held that the law raising the minimum drinking age did substantially further the appropriate government interest of improving highway safety. Id. at 338.

Under the third situation, where the challenged classification is based on grounds other than discrimination because of birth, race, age, sex, social origin, physical condition, or political or religious ideas, the burden shifts to the challenger of the statute who must show that the statute fails to serve a legitimate government purpose.

In Med Exp. Ambulance Service, Inc. v. Evangeline Parish Police Jury, 96-0543 (La.11/25/96), 684 So.2d 359, the court employed this criteria to scrutinize an ordinance that required an owner or operator of an ambulance to obtain an operating permit. The court held that when an ordinance or statute does not affect fundamental rights, but is merely an economic or social regulation, it need only have a rational relationship to a legitimate governmental interest. Id. at 365.

Inin the case sub judice, the statutory classification distinguishes between persons who have been arrested for the violation of a felony offense and persons who have been arrested for the violation of a misdemeanor offense. The classification is determined by an individual’s arrest status, either misdemeanor or felony.

Since the challenged classification is predicated on grounds other than birth, race, age, sex, social origin, physical condition, or political or religious ideas, the minimal standard of scrutiny is the appropriate level of equal protection analysis. Therefore, under Louisiana’s equal protection analysis, as set out in Sibley, supra, appellee “has the stringent burden of demonstrating that the classification does not suitably further any appropriate governmental interest.” Id. For the reasons that follow, we conclude that the trial court erred in assigning the burden of proof, and that appellee has failed to meet his burden of proof.

Under the minimal level of equal protection analysis, great deference is given to legislative determinations, and a classification is constitutional if it has a rational relationship to a valid state interest. Louisiana Seafood Management Council v. Louisiana Wildlife and Fisheries Com’n, 97-1367 (La.5/19/98), 715 So.2d 387. Protecting the public health, safety and welfare of citizens is a valid state interest within the meaning of the rational relationship test for determining whether a statute violates equal protection principles. Med Exp. Ambulance Service, Inc. v. Evangeline Parish Police Jury, supra.

Appellee argues that he has been denied equal protection of state and federal laws, and has been singled out for disfavored legal status and general hardship. Appel-lee cites Utz v. Cullinane, 520 F.2d 467 (1975), for the proposition that there is no rational reason to retain a “collection of dismissed, abandoned or withdrawn arrest |^records so.that later those records may be bootstrapped for some unearned and undeserved significance.”

Also, appellee urges that he has been injured in his reputation, and he has suffered loss of a significant liberty interest. He asserts that this law inflicts on him and other persons similarly situated “immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed by the State.” Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).

The purpose of a statute may be either the elimination of a public mischief or the achievement of a public good. This court concludes that retention of felony arrest records serves a valid state purpose. In State v. Nettles, 375 So.2d 1339 (La.1979), this court concluded that “(a)rrest records are useful in uncovering criminal conduct, aid in setting bond, and facilitate the work of correctional institutions.” Id. at 1342. This point was underscored at trial, where the State offered the testimony of a felony investigator who testified to the usefulness of the closed files in the investigation and enforcement of criminal laws.

In State v. Bradley, 360 So.2d 858 (La.1978), we held that a portion of LSA-R.S. 44:9(A)(2) was unconstitutional because it denied the benefits of expungement to persons arrested but not convicted of the misdemeanor offense of driving while intoxicated, but allowed expungement for persons arrested but not convicted of other misdemeanor offenses. This court concluded that there was no rational basis for distinguishing between these different types of misdemeanor offenses. Id. at 862. The Bradley holding, cited by appel-lee, is inapplicable to the case at hand because it involved misdemeanor offenses, exclusively. The present case involves the distinction between a felony offense and a misdemeanor offense. Thus, we reject 11sappeIIee’s arguments and instead embrace the concurrence written by Justice Kimball in State v. Savoie, supra, where Justice Kimball emphasized that

expungement of criminal records under La.R.S. 44:9(C), as opposed to destruction of such records under La.R.S. 44:9(B) and (E), removes such records only from public records. In my view, expungement does not affect the collection and processing of criminal history record information by the Louisiana Department of Public Safety or the Louisiana Bureau of Criminal Identification and Information ... nor does it affect the non-public dissemination of criminal history record information to any court, criminal justice agency, or law enforcement agency involved in the detection, investigation, apprehension, prosecution, sentencing, confinement, release, or rehabilitation of criminal offenders. This interpretation of La.R.S. 44:9 is supported by Subsection F of that statute, which provides:
F. For investigative purposes only, the Department of Public Safety may maintain a confidential, nonpublic record of the arrest and disposition. The information contained in this record may be released, upon specific request, therefor and on a confidential basis, to any law enforcement agency. The receiving law enforcement agency shall maintain the confidentiality of such record.

We concede that expunged, but undes-troyed, arrest records can impact a citizen in significant areas, i.e. credit applications, licenses, job opportunities, perhaps admission to a college or university and eligibility for educational loans or grants. However, under the minimal standard of equal protection scrutiny, disfavored or unequal treatment alone is insufficient to prove a statute is unconstitutional where the State, under its police powers, has a legitimate interest being served by the classification.

CONCLUSION

In conclusion, we hold that appellee, the party challenging the constitutionality of the statute, has failed to meet his stringent burden of proving that LSA-R.S. 44:9(B)(1) does not meet a valid state purpose, under the minimal scrutiny standard 114of Louisiana’s equal protection analysis. We conclude that retaining felony arrest records does serve a legitimate government interest, as does the statutory classification. Therefore, we find LSA-R.S. 44:9(B)(1) to be constitutional. The trial court’s ruling is hereby REVERSED.

ON REHEARING

| .PER CURIAM.

Rehearing is granted for the sole purpose of clarifying one statement contained in this court’s original opinion. In our original opinion, we stated the following:

We concede that expunged, but undes-troyed, arrest records can impact a citizen in significant areas, i.e. credit applications, licenses, job opportunities, perhaps admission to a college or university and eligibility for educational loans or grants.

881 So.2d at 112. In its application for rehearing, the State contends this statement is at odds with the provisions of the Public Records Act and La. R.S. 44:9(1). While the above statement is dicta, we recognize that it may be impacted by the application of La. R.S. 44:9(1), which provides:

I. Except to those agencies listed in Subsection G of this Section, no person whose record of arrest and conviction has been expunged pursuant to the provisions of this Section shall be required to disclose that he was arrested or convicted for the subject offense or that the record of the arrest and conviction has been expunged, | «.unless otherwise provided in this Section.

Accordingly, we issue this clarification to recognize the potential applicability of La. R.S. 44:9(1) to some of the instances mentioned in the sentence at issue in our original opinion.

In all other respects, rehearing is denied.

| .JOHNSON, J., would deny rehearing application of Rapides Parish District Attorney James C. Downs and Rapides Parish Sheriff William Earl Hilton and assigns reasons.

Because La.R.S. 44:9(G) is so general, it is unclear how wide access to expunged records truly is. La.R.S. 44:9(G) provides,

An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, the Louisiana Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry or the Louisiana State Board of Examiners of Psychologists.

The medical agencies are specific, but “law enforcement agencies” and “criminal justice agencies” could be broadly construed.

Additionally, the scope of disclosure required by the statute is an issue. La.R.S. 44:9(1) provides,

Except to those agencies listed in Subsection G of this Section, no person whose record of arrest and conviction has been expunged pursuant to the provisions of this Section shall be required to disclose that he was arrested or convicted for the subject offense or that the record of the arrest and conviction has been expunged, unless otherwise provided in this Section.

| gHowever, we know from our own experience that there are agencies other than those listed in La.R.S. 44:9(G) that require disclosure of arrests and convictions despite expungement. For instance, the Louisiana Committee on Bar Admissions requires full disclosure of expungement. Question #22 on the Character and Fitness Information application states the following:

22. Have you ever been cited, arrested, charged, or convicted for any violation of any law other than as a juvenile? (Omit traffic violations.)
NOTE: This should include matters that have been expunged or been subject to a diversion program.

The applicant who fails to make full disclosure of an expunged record is deemed lacking in the required moral character, and can be denied admission to the practice of law in Louisiana.

Without doing an exhaustive search of all employers, educational institutions, lenders, etc., I remain of the opinion that an individual once accused of a criminal offense, can be negatively impacted over the course of his lifetime.

      . LSA — Const. Art. 1, Sect. 3. provides:
      No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the later case as punishment for crime.

      . U.S.C.A. amend. XIV provides, in pertinent part:
      Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      . Jeffrey M. Shaman, The Evolution of Equality in State Constitutional Law, 34 RULJ 1013 (2003).

      . Joseph Tussman and Jacobus ten Broek, The Equal Protection of the Laws, 37 California Law Review 341, 346 (1949).


text:
    In re Brian P. BRANCATO.
    No. 2004-B-1919.
    Supreme Court of Louisiana.
    Sept. 1, 2004.
   ORDER

Considering the Motion to Remand and Consolidate filed by the Office of Disciplinary Counsel,

IT IS ORDERED that this matter be remanded to the disciplinary board for consolidation with the proceedings numbered 04-DB-073. After appropriate consideration of the consolidated matters, the board is directed to issue a single recommendation of discipline to this court encompassing all disciplinary matters involving respondent.

FOR THE COURT:

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    In re Walter HUNTER, Jr.
    No. 2004-B-1142.
    Supreme Court of Louisiana.
    Sept. 1, 2004.
   ORDER

Considering the Motion for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent,

IT IS ORDERED that the Motion for Interim Suspension be and hereby is denied. The ODC has not produced sufficient evidence demonstrating that respondent presently poses a substantial threat of serious harm to the public, as required by Supreme Court Rule XIX, § 19.2.

FOR THE COURT:

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana


text:
    In re Mark A. McADOO.
    No. 2004-OB-1717.
    Supreme Court of Louisiana.
    Sept. 1, 2004.
   ORDER

Considering the “Motion to Withdraw Application Without Prejudice” filed by petitioner, Mark A. McAdoo,

IT IS HEREBY ORDERED that petitioner’s application for admission to the Bar be and hereby is dismissed. .

FOR THE COURT:

/&/ Catherine D. Kimball Justice, Supreme Court of Louisiana


text:
    In re Stephen Alan WALLACE.
    No. 2004-B-1657.
    Supreme Court of Louisiana.
    Sept. 3, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to promptly remit settlement funds to his client and practiced law while he was ineligible to do so. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Stephen Alan Wallace, Louisiana Bar Roll number 24246, be suspended from the practice of law in Louisiana for a period of one year. It is further ordered that said suspension shall be fully deferred, subject to respondent’s successful completion of a two-year period of probation governed by the conditions set forth in the petition for consent discipline.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Stephen M. WILES.
    No. 2004-B-1562.
    Supreme Court of Louisiana.
    Sept. 3, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected his client’s legal matter. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Stephen Michael Wiles, Louisiana Bar Roll number 17865, be publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: J^DENNIS R. BAGNERIS, Sr., Judge. | MURRAY, J.,

text:
    Godiva Hawkins ROBERTSON, et al. v. Eric HESSLER, et al.
    No. 2003-C-1060.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 14, 2004.
    Writ Denied July 2, 2004.
    Craig S. Sossman, Joseph B. Harvin, Harvin & Sossman, P.L.C., Metairie, LA, for plaintiffs-respondents.
    James B. Mullaly, Patrick R. Bossetta, asst, city attys., Joseph V. DiRosa, Jr., Paul L. Zibilich, chief deputy city attys., and Sherry Landry, acting city atty., New Orleans, LA, for defendants/relators.
    Court Composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR.
   J^DENNIS R. BAGNERIS, Sr., Judge.

On December 29, 2003, this court received an order dated December 19, 2003 granting certiorari and remanding this ease to this court. On January 6, 2004, the plaintiffs filed a motion to dismiss the writ application for failure to comply with Uniform Rules of Court, Rules 4-2, 4-3, and 4-5. On January 9, the defendants filed an opposition to the motion to dismiss. On January 14, 2004, this Court issued an order that 1) directed the Clerk of CDC to provide the entire record for the case; 2) ordered the court reporter to provide a copy of the transcript of the March 14, 2003 hearing on the motion to compel discovery; and 3) ordered the trial judge to provide this court with a per curiam. The transcript of the March 14, 2004 hearing and the per curium from the trial court were received on January 29, 2004.

FACTS AND PROCEDURAL HISTORY OF THE CASE

The underlying litigation arises out of the fatal shooting of Steven Hawkins, Jr. on March 17, 2001 by off-duty officer, Eric Hessler. In March of 2000, the parents of the decedent filed suit against Officer Hes-sler and the New Orleans Police Department seeking damages occasioned by the fatal shooting of their son. The plaintiffs requested a trial by jury. The defendants filed a motion to strike the jury, and the plaintiffs filed a motion to compel discovery. Following a hearing, the trial court ruled in favor of the plaintiffs on various portions of the motion to compel discovery. Additionally, the court granted the motion to strike the jury as to the City of New Orleans. However, the court kept the jury with reference to the | ^police department, noting that the defendants were welcome to take writs on the issue. The defendants’ attorney requested thirty days to take a writ, and the court responded, “That’s fine.”

On June 13, 2003, the City of New Orleans (City) filed writ application No.2003-1060 seeking review of the judgment denying its motion to strike the plaintiffs jury request and granting the plaintiffs motion to compel discovery of defendant, Eric Hessler’s home address. In its writ application the City alleged that the complained of judgments were rendered following a hearing held on May 9, 2003, and the City further alleged that the complained of judgments were attached to the writ application as exhibits one and two. However, the writ application contained no attachments. In addition to failing to attach the May 9, 2003 judgments the City also failed to attach a notice of intent to seek supervisory writs or an order setting a return date for the filing of the writ application. Moreover no motions or oppositions of any type were included with the writ application. Rather, the City merely set forth two short legal arguments on the merits of the writ application.

Upon receipt of the writ application, personnel from the Clerk’s Office contacted the attorney handling the case for the City at least four times and requested the missing documentation. Approximately one month later, on July 11, 2003, the clerk received a letter from the City’s attorney apologizing for not including all necessary judgments or notices with the writ application; however, the attorney alleged that the writ was filed before all necessary judgments or notices were obtained. However, the City still failed to attach any of the needed ^documents. On July 14, 2003, the plaintiffs filed a motion for extension of time to respond to the writ application, noting that it did not learn that the City had filed a writ application until July 11, 2003 when a copy of the writ was faxed to counsel. On July 22, 2003, the plaintiffs filed a reply to the writ application. As of August 29, 2003, the City still had failed to supplement its writ application with any of the requested documents; thus, notwithstanding numerous calls to the City Attorneys’ office, the City’s writ application remained incomplete. Meanwhile, along with their reply brief, the plaintiffs provided the court with a copy of a judgment signed on May 9, 2003, along with a notice dated May 12, 2003 addressed to the attorney for the plaintiffs and the attorney for the City. The judgment supplied by the plaintiffs only addressed discovery issues; it was silent on the issue of the motion to strike the jury. Moreover, in contradiction of the City’s allegation that the judgment was rendered on May 9, 2003, the plaintiffs averred that the trial court heard the motion to compel and the motion to strike the jury on March 14, 2003 and orally ruled on both motions from the bench that same day. The plaintiffs further averred that the City notified the court it intended to file writs, and the court told the City that it had thirty days within which to file the writs. Assuming arguendo that the discrepancies in dates were resolved in favor of the City, the starting date for the filing of the writ would have been May 9, 2003. Thus, based on the allegations of the writ application the writ application was filed untimely because it was not filed until June 13, 2003, over thirty days after the notice of signing of judgment. For that reason and also because the writ was incomplete, the writ application was not considered. Further, because the May 9, 2003 judgment submitted by the plaintiffs with their reply brief only addressed the discovery issue, the writ|4application contained nothing to show that the trial court had ruled on the jury trial issue. For that reason this Court concluded that no basis for ruling on the jury trial issue existed.

On September 10, 2003, this Court denied the City’s writ based on the showing made. On October 8, 2003, the City sought writs in the Louisiana Supreme Court. On November 26, 2003 (while its writ of certiorari was still pending in the Louisiana Supreme Court), the City filed another writ application in this Court. The sole assignment of error in this second writ application was that the trial court had erred in denying the defendants’ motion to strike the plaintiffs’ jury trial request. This new writ application contained a judgment signed on July 17, 2003 indicating that the court orally denied the motion to st4rike the jury trial on March 14, 2003. However, this second writ application was incomplete in that it contained no notice of intent to seek supervisory writs, no order setting a return date for the filing of the writ, no certificate of service, and no indication that the defendants had given either the trial court or the plaintiffs notice of the filing of the writ application. Additionally, the writ was untimely on its face.

Accordingly, on December 19, 2003, this Court dismissed writ no. 2003-C-2087 for failure to comply with Uniform Rules of Court, Rule 4-2, Rule 4-3 and Rule 4-5. This Court has received no documents and no allegations have been made by any of the parties to suggest that the defendants sought any further review of the dismissal of writ no. 2003-2087.

However, in Robertson v. Hessler, 2003-2783 (La.12/19/03), 861 So.2d 573, the Louisiana Supreme Court issued the following ruling regarding writ no. 2003-C-1060: “Granted and remanded to Court of Appeal.”

DISCUSSION

The first issue to be considered by this court is whether the plaintiffs’ motion to dismiss this writ application has merit.

The plaintiffs argue that the writ application should be dismissed because the original writ application filed in this court was incomplete and the writ application was filed untimely.

The defendants’ writ application was clearly incomplete at the time of filing and remained incomplete for approximately three months while this Court attempted to obtain the missing pleadings, i.e. the judgment, the notice, and order setting a return date. While counsel for the defendants acknowledged in writing that the judgment and notices were missing, counsel never provided these documents to the court.

The trial record contains a judgment dated July 17, 2003, which states that the claims against the City of New Orleans shall be heard before a judge and the claims against Officer Hessler shall be heard before a jury. Additionally the record contains a notice of signing of judgment showing that the July 17, 2003 judgment was sent to the defendants’ attorney on July 18, 2003. Yet, the defendants failed to provide this judgment to this Court prior to dismissal of its writ application in September of 2003. The defendants, while acknowledging the deficiencies in their original writ application, argue that they should not be penalized for their attorney’s “procedural oversight.” While acknowledging that the original dismissal was most likely due to the writ being untimely, the defendants argue that this issue was subsequently resolved when they requested that the trial court re-issue its judgment to allow for a timely review based on the fact that the initial notice of signing of judgment was mailed to prior counsel’s 1 fiprivate office. It was this mailing of the notice to counsel’s private office that they allege prohibited them from seeking a timely review. However, they note that the trial court re-issued notice on September 22, 2003, and they then timely filed their notice of intent and filed their second writ, writ application No.2003-C-2087. Yet, they also admit that they neglected to attach the new notice to writ no. 2003-2087. They label this failure “inadvertent” on the part of their counsel and argue that notwithstanding the numerous procedural deficiencies in the two prior writ applications, the court should now entertain this case to prevent a manifest injustice against the defendants. Moreover, they noted that despite these procedural defects, the Louisiana Supreme Court granted their writ and remanded the case to this Court for consideration. While acknowledging that the Supreme Court gave no reasons for the remand, they argue that the Supreme Court undoubtedly granted their writ to cure what the court recognized to be an obvious miscarriage of justice because the law clearly states that no trial by jury is available in a suit against a municipality or an employee thereof acting in the course and scope of his employment.

There is no question that both of the writ applications previously filed in this court were incomplete and contained other procedural irregularities that prevented this Court from considering the merits. Moreover, as to the jury trial issue, the first writ application was either premature or untimely and the second writ application was clearly untimely when filed. The writ was premature because at the March 14, 2003 hearing, the trial court failed to address the issue of whether the plaintiffs were entitled to a jury trial against Officer Hessler. Rather, the record clearly indicates that at the March 14, 2003 hearing, the court orally granted the motion to strike the jury trial request with reference to the City, but kept the jury with 17reference to “the police department.” The defendants were given thirty days to take writs from this ruling and failed to do so within the thirty-day period. However, when the judgment rendered at the March 14, 2003 hearing was reduced to writing on July 17, 2003, the judgment stated that the court was dismissing the police department from the litigation and keeping the City and Officer Hessler as defendants. Clearly, there was some confusion on the part of the parties as to the granting of the jury trial. Only in the written judgment was any mention made of the granting of a jury trial against Officer Hessler. However, there is a discrepancy in the transcript and the judgment. Ordinarily in such cases, the transcript would prevail. Thus, having reviewed the records now available and having discovered that no mention of a jury trial against Officer Hessler was made, it is clear that writ No. 2003-C-1060, which was filed on June 13, 2003, was premature as related to any ruling allowing a jury trial against Officer Hessler.

While the July 17, 2003 judgment was attached to writ no. 2003-C-2087, it was based on the documents in file, that writ was untimely because it was filed on November 26, 2003, more than thirty days after the judgment was signed. Moreover, the plaintiffs sought no further review of that writ. Thus, the primary issue to be considered is the effect of the new notice of signing of the July 17, 2003 judgment that was mailed on September 22, 2003. If that notice was valid, the notice of intent filed on October 7, 2003 would have been timely, and the writ filed on November 26, 2003 would also have been timely. None of the parties cites any jurisprudence providing for a re-issuance of a notice of signing. However, by re-issuing the notice, the trial court implicitly extended the time for filing the writ application. While it would appear a trial court has discretion to decide whether to extend the time for filing a writ application, this court has held that a return date |smay not be extended after the time for filing the writ has expired. A writ application challenging the July 17, 2003 judgment should have been filed no later than August 18, 2003, yet the defendants let that day pass and then apparently sought a re-issuance of the judgment at some later, undetermined date.

The record contains no documents to explain why the trial court reissued the July 17, 2003 judgment on September 22, 2003. The defendants suggest that it was because the previous judgment was sent to their prior counsel’s private office. However, the record does in fact show that the notice of signing was mailed to a different address other than the City Hall address to which the previous correspondence to counsel was sent. Thus, it is possible that although there is no allegation that prior counsel (who was still counsel of record when the judgment was mailed and who was the counsel who filed the original writ application) never received the notice, the trial court may reasonably have believed that re-issuance of the notice was justified.

A copy of the writ application filed with the Supreme court was obtained from our Clerk’s office and has been reviewed. The sole assignment of error raised in the petition for writ of certiorari was that this Court committed manifest error in affirming the denial of the defendants’ motion to strike the jury. In support of its writ to the Louisiana Supreme Court, the City attached a judgment from the trial court that had been signed on July 17, 2003, and a copy of the September 10, 2003 judgment from this court denying its writ application based on the showing made. The July 17, 2003 judgment, which was never filed with this court, provided in relevant part as follows:

|,IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiffs’ claims against the City of New Orleans shall be heard before a Judge.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiffs’ claims against Eric Hessler, (sic) shall be heard before a jury.

Likewise, although the plaintiffs filed a reply to the City’s writ of certiorari on November 21, 2003, the plaintiffs did not address the motion to compel issue. Instead, in addition to addressing the merits of the City’s argument that this court had erred in affirming the judgment denying the City’s motion to strike the jury trial as related to Officer Hessler, the plaintiffs addressed the timeliness and/or prematurity of writ no. 2003 C 1060, the writ filed in this court.

As previously stated, a review of the record supports a finding that the City’s writ application challenging the denial of the motion to strike the jury was clearly either untimely and/or premature. Nevertheless, the judgment denying the motion to strike the jury trial as to Sergeant Eric Hessler was erroneous and should be reversed.

La. R.S. 13:5105 provides in relevant part, “No suit against a political subdivision of the state shall be tried by jury....” Additionally, La. R.S. 13:5101 provides in relevant part:

B. This Part applies to any suit in contract or for injury to person or property against the state, a state agency, an officer or employee of the state or a state agency arising out of the discharge of his official duties or within the course and scope of his employment, or a political subdivision of the state, as defined herein, or against an officer or employee of a political subdivision arising out of the discharge of his official duties or within lmthe course and scope of his employment. ... (emphasis added)

La. R.S. 13:5101 extends the prohibition contained in La. R.S. 13:5105 against a trial by jury to an officer or employee of a political subdivision arising out of the discharge of his official duties or within the course and scope of his employment. Hampton v. Miller, 620 So.2d 896, 897 (La.App. 4 Cir.1993), citing Scott v. Clark, 583 So.2d 938, 944 (La.App. 1 Cir.1991).

The City of New Orleans is a political subdivision and municipality within the Parish of Orleans, State of Louisiana, and the City, through the New Orleans Police Department, is the employer of defendant, Officer Eric Hessler.

As quoted from the plaintiffs’ own pleadings, the plaintiffs admit:

rv.

At all times pertinent, defendant, Hes-sler, was an employee, officer and acting within the course and scope of his employment with defendant, New Orleans Police Department.

Because the plaintiffs have admitted that Officer Hessler was acting within the course and scope of his employment with the Police Department at the time of the incident forming the basis for their action, the prohibition against a jury trial applies.

The procedural history of the case clearly indicates that this Court correctly denied writ No. 2003-C-1060 based on the information presented in the writ application at that time. However, considering the entire record before this Court, the trial court erred by denying the motion to strike as to Officer Hessler, and the judgment of the trial court is reversed.

WRIT GRANTED; JUDGMENT REVERSED AND REMANDED.

McKAY, J., concurs in the result.

MURRAY, J., concurs with reasons.

| MURRAY, J.,

concurs with reasons.

The trial court erred in denying the City of New Orleans’ motion to strike the jury as to Officer Hessler. The plaintiffs, in their petition, allege that Officer Hessler was at all pertinent times acting in the course and scope of his employment with the New Orleans Police Department. As such, the jurisprudence holds that it is improper to have a jury try the plaintiffs’ claim against Officer Hessler. Given that the Louisiana Supreme Court’s decision to remand this matter was apparently intended to give this court an opportunity to correct this legal error on supervisory writ, I respectfully concur in the result.

      . The suit was later amended to substitute the City of New Orleans for the New Orleans Police Department.

      . Dianne Cassioppi called and spoke to Mr. Bossetta and/or someone in his office on June 13, June 17, June 20 and June 26 and requested the needed documents, to no avail.

      . On October 2, 2003 a motion was filed to substitute new counsel for the City. An order allowing the substitution was signed on October 10, 2003. The order incorrectly has October 10, 2002, but this is impossible because the motion was not filed until October of 2003 and order was not entered on minutes until October 14, 2003.


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

text:
    Ferdinand F. VALTEAU Jr., et al. v. MELLON MORTGAGE COMPANY. Chase Mortgage Company-West v. Barbara Hubbard Valteau, et al.
    Nos. 2003-CA-2056, 2003-CA-2057.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 2004.
    Ferdinand F. Valteau III, New Orleans, LA, for Plaintiffs/Appellants.
    . George B. Dean, Jr., Dean Morris, LLP, Monroe, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   hMAX N. TOBIAS, JR., Judge.

The defendants/appellants, Barbara Hubbard Valteau and Ferdinand Valteau, Jr., (hereinafter “the Valteaus”), appeal from a summary judgment granted in favor of the plaintiff/appellee, Chase Mortgage Company-West (hereinafter “Chase”), formerly known as (“f/h/a”) Mellon Mortgage Company (hereinafter “Mellon”). After a review of the record and the applicable law, we affirm the judgment.

On 15 June 1979, the Valteaus executed a note in the amount of $53,850.00 payable to Carruth Mortgage Corporation (hereinafter “Carruth”) and secured by a mortgage affecting the property located at 4977 Lafon Drive, New Orleans, Louisiana. On 30 July 1979, the note and mortgage were assigned to the Federal National Mortgage Association (“Fannie Mae”), which in turn appointed Mellon as its servicing agent.

| ^Following a series of difficulties in the servicing of the loan by Mellon, the Val-teaus and their children filed a petition for damages, temporary restraining order, preliminary injunction, and permanent injunction against Mellon. The damage suit alleged that Mellon intentionally and/or negligently administered the Valteaus’ escrow account, causing them physical and mental injury, pain, anguish, distress, inconvenience, and related medical expenses. On 20 July 2000, Chase, as successor by merger with Mellon, filed a suit on the note with recognition of the mortgage against the Valteaus for their failure to pay the loan. The two cases were consolidated by the district court.

Chase filed two motions for partial summary judgment. The first sought to dismiss the personal injury claims against it and the second was to obtain a judgment on the outstanding balance of the note, as well as recognition of the mortgage. On 25 October 2002, the trial court denied Chase’s motion for partial summary judgment seeking to dismiss the personal injury claims. Chase filed a supervisory writ of review with this court. On 26 February 2003, this court granted the writ, reversed the trial court, and rendered summary judgment dismissing the Valteaus’s suit for damages.

On 30 October 2002, the trial court granted Chase’s motion, and rendered judgment in its favor, in the principal amount of $37,591.56. In addition, the trial court ordered that the mortgage securing the debt was recognized and declared 13enforceable in accordance with law, which mortgage encumbered the property located at 4977 Lafon Drive. It is from this judgment that the Valteaus appeal.

The principal assignment of error by the Valteaus is that the trial court erred by granting summary judgment because Chase it is not the holder of the note in question. It is undisputed that the Val-teaus have not made monthly payments on the loan since July 1998. In addition, the record does not reveal that the Valteaus have alleged any fraud or defect in the mortgage note; their only objection concerns Chase as a “holder” of the note.

The corrected affidavit filed into the record in support of Chase’s motion for summary judgment states that Chase f/n/a Mellon has the “responsibility for servicing, administering, collecting and foreclosing” the mortgage loan in question. The Valteaus have not refuted this sworn statement. They merely contend that because the note was not formally assigned or indorsed to Chase, Chase cannot proceed with the action at issue.

We note that the Valteaus have never contested Mellon’s legal authority to collect the mortgage payments and/or service the loan at issue, which Mellon has done since 1979. In fact, in their own petition for damages, the Valteaus contend that Mellon “at all relevant times mentioned [is] the mortgagor or mortgage lender on the piece of property located at 4977 Lafon Dr., New Orleans, Louisiana.” Although this statement is factually incorrect, it is evidence of the Valteaus’ recognition of Mellon’s authority. As it is undisputed that Chase is the successor |4by merger to Mellon, which was the successor to Car-ruth, we find that this assignment of error is without merit.

We also reject all other assignments of error set forth by the Valteaus. The promissory note’s endorsement by Carruth to Fannie Mae is proof that Fannie Mae is the current holder of the note. Chase is not the “holder” of the instrument in question and there has not been a transfer by Fannie Mae to Chase. As servicing agent for Fannie Mae, Chase has the responsibility for servicing, administering, collecting, and foreclosing on the mortgage loan. This duty is not strictly personal to Fannie Mae or non-assignable to Chase. See La. C.C. art. 3023. Thus, Chase has procedural capacity to sue to enforce the rights of Fannie Mae. See La. C.C.P. art. 694. As the mandatary and agent, Chase may perform all acts that are incidental to or necessary for the performance of its obligations to Fannie Mae. See La. C.C. art. 2995. These acts include servicing the debt and filing the instant suit to collect the outstanding debt on the note and recognition of the mortgage against the Val-teaus.

Based on the foregoing, we affirm the summary judgment rendered in favor of Chase.

AFFIRMED.

      . The records of the Louisiana Secretary of State indicate that Carruth is the previous name of Mellon, which, in turn, is the previous name of Chase. A "servicing agent” is defined as the person responsible for receiving any scheduled, periodic payments from a borrower. 42 U.S.C.A. § 4003(a). We understand the servicing agent to be the manda-tary of the principal, in this case Fannie Mae.

      . Valteau v. Mellon Mortgage Company, 2002-CA-2524, unpub. (La.App. 4 Cir. 2/26/03), 838 So.2d 946 (Table).