source: Caselaw Access Project

author: MAX N. TOBIAS JR., Judge. BELSOME, J.,

license: Public Domain

text:
    STATE of Louisiana v. Benjamin BELLELO.
    No. 2006-K-1393.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 2007.
    Peter A. Barbee, Law Office of Peter A. Barbee, Gretna, LA, for Relator, Benjamin Bellelo.
    Charles Foti, Attorney General, Darryl W. Bubrig, Sr., District Attorney, Belle Chasse, LA, Gilbert V. Andry IV, Assistant District Attorney, New Orleans, LA, for Respondent, State of Louisiana.
    (Court composed of Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD, and Judge ROLAND L. BELSOME).
   MAX N. TOBIAS JR., Judge.

|,We grant the application for supervisory writ of the defendant/relator, Benjamin Bellelo (“Bellelo”), to review his conviction for the misdemeanors of driving while intoxicated and reckless operation of a motor vehicle.

According to Bellelo, he was arrested on 8 February 2006 for reckless operation of a motor vehicle and an expired driver’s license. He then avers that he was tried and convicted on 20 July 2006 of driving while intoxicated and reckless operation of a motor vehicle. He states that the evidence at trial consisted of the testimony of the arresting officer, himself, and a defense witness, Josh Lincoln. Also, a video taken in the booking room was introduced.

The relator subsequently complied with an order of this court to provide a copy of the police report and the transcript of the court’s reasons for judgment, which were dictated in open court after the trial held on 20 July 2006. The trial court has provided the videotape exhibit.

Bellelo assigns two errors on the part of the trial court. First, he avers that the trial court erred when it placed the burden on the defense to move for recordation of the trial proceedings prior to the start of the trial. He argues that the trial court’s failure to have the proceedings recorded denies him the constitutional | aright of judicial review as guaranteed by the Louisiana Constitution of 1974, Article I, § 19. In his second assignment, he avers that the trial court erred when it failed to grant his motion for a directed verdict, contending that the DVD videotape contradicts the arresting officer’s version of events as set forth in the report he authored, and thus the evidence was insufficient to prove the offense of driving while under the influence of alcohol.

As to the first assignment, we note that nothing in the minute entry or transcript of 20 July 2006 makes any reference to the alleged failure of the trial court to have the testimony of the witnesses recorded. At the conclusion of the July 20 transcript, which reflects the court’s verdict and lengthy reasons therefore, the relator only gave notice of intent “to take writs to the Court’s ruling” finding him guilty of driving while intoxicated and reckless operation. No reference is made to the lack of a trial transcript. The original written notice of intent to seek supervisory writs does not mention what ruling or rulings Bellelo intended to have reviewed. The first request for an extension, dated 16 August 2006 states that counsel had “requested a copy of the trial transcript and the oral reasons for Judgment [sic]; the transcript has not been produced to date.” The request for an extension of 20 September 2006 states that counsel “requested a copy of the trial transcript and the oral reasons for Judgment; the transcript was provided to undersigned counsel on September 13, 2006.” Therefore, we find nothing in the record before this court to substantiate the relator’s allegation regarding the lack of Ra trial transcript. We note, however that the state in its response does not dispute the relator’s assertion.

The Uniform Rules-Courts of Appeal — Rule 4-5 provides in pertinent part: “.... The original and duplicate shall have the pages of the application and attached documents and exhibits consecutively numbered and shall contain these items: ... (f) a copy of the judgment, order, or ruling complained of (if by written judgment, order, or ruling).... ” Thus it was incumbent upon Bellelo to provide evidence regarding the trial court’s ruling denying his request for a transcript and the court’s inability to provide one for review of the trial court’s denial of a judgment of acquittal. However, assuming that all of the relator’s allegations regarding the lack of a trial transcript are true, and that the court placed the burden upon him to request of recordation of the trial prior to commencement of it, the relator’s legal argument has apparent merit.

In State v. Bizette, 334 So.2d 392 (La. 1976), the defendant was convicted of driving while intoxicated. He applied for a writ of review, which was granted. The only issue raised was the trial court’s denial of his motion for judgment of acquittal. The court granted a new trial because “substantial omissions from the transcript of the trial proceedings” prevented the court from determining if the trial court erred. Id. at 393. Portions of the transcript were missing because of a malfunction of the recording equipment. Defense counsel at trial did not know of the malfunction. The state in its response to the supervisory writ application argued that, because the defendant was tried for a misdemeanor, he “waived his right to judicial review based upon a complete record of all evidence ... because |4he did not move for recordation of the proceedings.” Id. at 394. The state relied upon La.C.Cr.P. art. 843, which now provides:

In felony cases, in cases involving violation of an ordinance enacted pursuant to R.S. 14:143(B), and on motion of the court, the state, or the defendant in other misdemeanor cases tried in a district, parish, or city court, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

The court rejected the state’s argument because it was the practice in the judicial district to record all misdemeanor trials even though no one moved for recordation. Moreover, defense counsel believed that the trial was being recorded. The court concluded, “under the circumstances here presented, a motion for the defendant for recordation of the trial proceedings, as required by article 843, would have been a vain and useless act. Accordingly, we cannot say that defendant intelligently waived his right of judicial review ....” Id.

In State v. LeBlanc, 367 So.2d 335 (La.1979), the Court was again faced with a case where there had been no recordation of a misdemeanor trial. The defense had not requested that the proceeding be recorded, and the state subsequently argued that the defendant’s failure to do so as required by La.C.Cr.P. art. 843 meant he had not been denied his right to judicial review. The defendant argued that Art. 843 conflicted with Article I, § 19 of the Louisiana Constitution of 1974 which provides:

No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all | ¡^evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.

After extensively reviewing the debate at the 1973 Constitutional Convention regarding Article I, § 19, the Court concluded that its “review of the verbatim transcripts and the clear words of Art. l[sic], § 19 indicate that no one in a misdemeanor case should have to make a motion before record of the proceeding is made.” LeBlanc, 367 So.2d at 339. The Court went further, stating, “Therefore, the words ‘on motion of the court, the state, or the defendant’ in C.Cr.P. art. 843 are an unconstitutional restriction on this constitutional right.” Id. The Court pretermitted “whether the intelligent waiver of right in Art. l[sic], § 19 is the right of recordation or judicial review,” because the instant case did not show an intelligent waiver of recordation. Id. at 340.

In State v. Gibbens, 562 So.2d 457 (La.App. 3 Cir.1990), the court in a one-paragraph opinion found that, even though the court minutes specifically showed that the defendant’s counsel waived recordation of the testimony of the defendant’s trial for first offense driving while intoxicated, those minutes did “not reflect that the trial court affirmatively determined that relator himself intelligently waived this constitutional right, and, in effect, a judicial review on appeal.” Therefore, the court reversed the defendant’s conviction and sentence and remanded the matter for a new trial.

We note, however, courts have affirmed defendants’ convictions in felony cases where the trial transcripts are unavailable due to the long passage of time between the convictions and the defendants’ active assertion of the right to appeal. In those cases, the lengthy passage of time was attributable to the defendants, and the inability of the district courts to produce the transcripts was not attributable to |fithe court personnel or the state. See State v. Bernard, 583 So.2d 111 (La.App. 5 Cir.1991) (defendant waited seven years to move for an appeal of his conviction); State v. Gonzales, 95-0860 (La.App. 4 Cir. 9/18/06), 680 So.2d 1253 (defendant escaped after her appeal was granted and remained at large for ten years); State v. Clark, 93-0321 (La.App. 4 Cir. 10/27/94), 644 So.2d 1130 (defendant withdrew his motion for appeal filed soon after his conviction, noting he might appeal in the future; nine years later, after successive writ applications on various issues, his out-of-time appeal was granted, but by that time the trial transcript was unavailable); and State v. Ford, 92-2029 (La.App. 4 Cir. 1/31/95), 650 So.2d 808 (defendant convicted and granted an appeal in 1980; however, the appeal record was never lodged, a fact of which he was informed in 1984, but he failed to seek an appeal again until 1991). We find these cases inapplicable because of the time between Bellelo’s trial and his application for supervisory writs.

The state in response to the relator’s arguments does not assert the relator’s assertions are untrue, to-wit, that the trial court did not obtain an intelligent waiver of the recordation of the trial proceedings and simply failed to have them recorded because the defendant did not move for recordation under La.C.Cr.P. art. 843.

Accordingly, we conclude that the relator’s conviction should be reversed and the matter remanded for a new trial. We therefore pretermit a discussion of the relator’s second assignment of error.

WRIT GRANTED, REVERSED AND REMANDED.

BELSOME, J., dissents.

BELSOME, J.,

dissents.

1I would deny the writ.

      . The reason for the extension was that counsel had a first degree murder trial scheduled for October 3.

      . The version of Article 843 at issue in Bizette was substantially the same.


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

text:
    Jacalynne BECKER v. Stephen R. KEASLER and XYZ Insurance Company.
    No. 2005-CA-1479.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 17, 2007.
    Soren E. Gisleson, Herman Herman Katz <& Cotlar, LLP, New Orleans, LA, for Plaintiff/Appellee.
    Kenny M. Charbonnet, Charbonnet Law Firm, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., and Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

| ,This case arises from a dog bite suffered by the plaintiff, Jacalynne Becker (“Becker”), which occurred when a dog owned by the defendant, Stephen R. Keas-ler (“Keasler”), bit Becker while she was walking by his home in New Orleans. The trial court awarded Becker $2,243.59 in special (medical) damages and $35,000.00 in general damages, plus costs and legal interest from the date of judicial demand. Keasler appeals the judgment of the trial court, asserting that Becker was negligent in attempting to pet the dog, which was restrained in his yard. For the following reasons, we affirm the judgment of the trial court.

On 3 November 2002, Becker, a college student, met several friends at a local establishment for Sunday brunch and to watch a football game. Around 10:00 a.m., Becker and three friends, including Sara Colis (“Colis”), arrived at the restaurant and parked around the corner on a residential street. While walking to the restaurant, Becker noticed Keasler’s dog, a large Akita, at the fence bordering Keas-ler’s property when she walked by.

After several hours at the restaurant with her friends, Becker left with Colis by foot to return to the car. While walking toward the car, Becker reached into her purse for her cell phone to call her friend who drove to the brunch so that they | ycould leave. Becker testified that when she reached into her purse for her cell phone, she felt something latch onto her arm and pull her toward the fence. She realized it was a dog that had grabbed her; Colis was able to remove the dog from her arm. Becker and Colis waited for approximately twenty minutes for emergency assistance, and the fire department arrived with oxygen. She and Colis waited with her other friends for a few minutes longer, before finally driving to the emergency room at Touro Infirmary, a hospital.

Becker testified that she did not notice any aggressive behavior by the dog prior to being bitten, and did not see or hear the dog before it attacked her. She stated that she had her right arm extended in front of her with her elbow out while she reached for her cell phone. She described the fence bordering Keasler’s property as an iron fence that abutted the sidewalk. She testified that from the sidewalk, the fence was approximately four feet tall. However, the lawn was raised higher than the sidewalk, so that from the other side, the fence only reached approximately three feet in height. Becker testified that no part of her arm or body ever crossed over the fence, and she did not attempt to pet the dog before it bit her.

Keasler was not home when his dog bit Becker, but his roommate, Roland Miller, Jr. (“Miller”), testified that he witnessed the bite. Miller testified that when Becker passed the house, he was sitting on a screened-in porch attached to Keasler’s house and had a full view of the incident. According to Miller, Becker reached over the fence with her right arm, exclaiming “what a pretty dog” when the dog jumped up toward her face and bit her arm. He maintained that Becker was attempting to pet the dog, and that she reached her arm into the yard, provoking the dog. He testified that the dog was kept tied up in the yard, and that he had never bitten anyone before he bit Becker. Miller did admit under cross-examination,3 however, that the dog bit another person on the face sometime after it bit Becker, and that the dog was euthanized as a result. Miller testified that the dog had been known to charge the fence and bark at passing children, who would frequently provoke the dog. He further testified that the dog was tied up because Keasler did not want him near the fence where he might be antagonized to the point of possible hurting someone. However, he also testified that on the morning in question, the dog was able to come within a foot of the fence, “maybe closer if he’s really going for it.”

Following Miller’s testimony, the trial court judge issued a ruling from the bench, and found that Louisiana Civil Code article 2321, “which imposes strict liability on dog owners for injuries caused as a result of dog bites, is applicable.” The trial court noted the applicability of the Louisiana Supreme Court decision Pepper v. Triplet, 03-0619 (La.1/21/04), 864 So.2d 181, 200, and specifically found that it was uncontested that Keasler’s dog bit Becker; that the dog bite was unprovoked; and that the height and design of the fence and the rope were inadequate to restrain a dog as large as Keasler’s. Finally, the trial court found Keasler to be solely at fault for “failing to provide proper precautions and safety to prevent passers-by from encountering the dog, who had a propensity for aggression and a propensity to bite.” The trial court expressed doubt that the dog had never bitten anyone before it bit Becker, and further noted outrage that Miller apparently witnessed the event, but did not offer to help Becker. Although the trial court found Keasler strictly liable under article 2321, it did not expressly determine whether the dog posed an unreasonable risk of harm before making its determination.

UKeasler appealed the judgment of the trial court, assigning four errors. First, he asserts that the trial court erred in finding him strictly liable for the actions of his dog without determining whether the dog posed an unreasonable risk of harm. Similarly, he also asserts that the trial court misapplied the law by failing to apply an unreasonable risk analysis to the facts of this case. Next, Keasler takes issue with the factual findings of the court, and in particular its finding that the dog had bitten other individuals before biting Becker, and not after.

Liability for injuries caused by a pet is governed by Civil Code article 2321, which provides:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

However, a plaintiff may prevail under a claim in negligence if he or she shows that the dog’s owner failed to exercise reasonable care. Id.

Because Keasler assigns an error of law to the trial court, we examine the merits of the case de novo. However, to the extent the legal conclusions reached by the trial court were based upon credibility determinations, we review those determinations under a manifest error/clearly wrong standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). If, after a review of the record on appeal, we determine that the credibility determinations made by the trial court are reasonable, we are | abound to uphold them, even in the face of conflicting testimony. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733.

In the case sub judice, we note that the trial court lent credibility to Becker’s version of events, and not to the version put forth by the defendant. The trial court found the defendant’s version of- events inconsistent, noting that it did not believe that Becker’s injury to her upper arm was consistent with her reaching into the yard to pet the dog, as described by Miller. Further, the court was troubled that Miller did not appear by his testimony to have offered Becker aid. Keasler specifically takes issue with this finding, as it is not supported by the testimony in the record. We note that the record is devoid of testimony regarding Miller’s actions following the dog bite, and from the lack of testimony, the trial court seems to have inferred that Miller stood by and ignored Becker’s distress. However, the court notes that it rejected Keasler’s version of events “mainly for the reason that the injuries are inconsistent with the way the defendant and Mr. Miller say the accident happened.” Although we find that the trial court committed factual error in finding that Miller did not offer assistance to Becker, we do not find that this error invalidates the trial court’s credibility determination, insofar as it was not the sole factor in the determination. Further, any evidence in the record does not sufficiently or directly controvert the version of events put forth by Becker.

Next, we look to whether the factual findings made by the trial court are sufficient to support a finding of strict liability as a matter of law. The findings of fact that are supported by the record on appeal that are germane to this issue are: Keasler’s dog bit Becker; Becker did not provoke the dog; the dog was restrained by a rope in a rather large yard, but was still able to reach the fence; the fence was only four and one-half feet tall and had six-inch gaps between its bars; and, | (¡Keasler’s dog had a history of aggression toward passers-by, which was the reason Keasler retrained the dog with a rope.

In Pepper v. Triplet, 03-0619, p. 29 (La.1/21/04), 864 So.2d 181, 200, the Louisiana Supreme Court examined the standard set forth in Civil Code article 2321 and held that in order to establish a claim in strict liability against a dog owner, a plaintiff must prove that (1) he or she sustained injury to his person or property; (2) the injuries could have been prevented by the owner; and (3) the injury did not result from the provocation of the dog by the victim. - The Court further held that in order to establish that a dog owner could have prevented the injury sustained by the victim, a plaintiff must establish that the dog presented an unreasonable risk of harm.

In particular, the Court noted that a plaintiff must establish:

that the risk of injury outweighed the dog’s utility such that is posed an unreasonable risk of harm. If the animal posed an unreasonable risk of harm, then the owner will be presumed to be at fault, because he failed to prevent an injury he could have prevented, and he will be held strictly liable for an injury caused by his dog, unless he can show that the injury was due solely to the fault of a third party unattributable to him or to a fortuitous event, or, as Article 2321 now provides, the plaintiff fails to establish that the injuries did not result from the injured person’s provocation of the dog.

Id. at p. 19, 864 So.2d at 194. The Court noted that in determining whether a dog owner’s conduct constituted an unreasonable risk of harm, it must weigh the individual right of the dog owner with the “risk and gravity of harm” to the public. Id. at p. 21, 864 So.2d at 195-96. This is necessarily a fact-sensitive determination.

Keasler points out that the Court found that the defendant in Pepper was not strictly liable because the dog was “completely enclosed” in a fence and that the plaintiff actually entered the defendant’s fenced-in property before being bitten. |7 Keasler maintains that because he restrained his dog both with a rope and behind a fence, the only way Becker could have been bitten would have been if she reached into his yard, provoking the dog. However, the evidence in the record indicates that although the dog was tied up, it was able to come very close to the fence, by Miller’s own estimation. Photographs of Keasler’s yard were entered into evidence, and we note that the yard is large, with ample room to restrain a dog such that it posed no risk to passers-by. Also, the photographs of the fence are consistent with Becker’s estimation of its height. Coupled with Miller’s testimony that the dog had aggressively approached passersby (neighborhood children) at the fence in the past, we find that the manner in which the dog was restrained constituted an unreasonable risk of harm to the public. Given the close proximity within which the dog was able to approach the fence, and the dog’s aggressive nature, the design of the fence was inadequate to protect the public.

For the foregoing reasons, we find that Keasler is strictly liable to Becker for her injuries under Civil Code article 2321 and the standard set forth in Pepper, supra. Although the trial court committed factual error in determining that the dog had bitten someone before it bit Becker and further in determining that Miller did not offer assistance to Becker, those determinations are not essential to the ultimate issues of liability before it. Further, although the trial court should have made a determination as to whether the dog posed an unreasonable risk of harm, we find that the evidence in the record supports the ultimate finding of strict liability on the | spart of Keasler. Therefore, the errors committed by the trial court were harmless errors and the judgment of the trial court is affirmed.

AFFIRMED.

      . We note that no objective evidence in the record establishes the exact length of the rope, or whether it was possible for the dog to have lunged over the fence toward Becker, as she maintains. In the absence of evidence to discredit her testimony, we are required by the manifest error/clearly wrong standard to accept the trial court’s determination of her veracity.


author: MICHAEL E. KIRBY, Judge.

text:
    Fred MOORE, III v. DEPARTMENT OF POLICE.
    No. 2006-CA-1217.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 17, 2007.

      Gary M. Pendergast, New Orleans, LA, for Plaintiff/Appellant.
    James B. Mullaly, Assistant City Attorney, Penya M. Moses-Fields, City Attorney, Joseph V. Dirosa, Jr. Chief Deputy City Attorney, New Orleans, LA, for De-fendanVAppellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR.).
   MICHAEL E. KIRBY, Judge.

_|jThe plaintiff, Fred Moore, III, appeals the ruling of the Civil Service Commission (hereinafter “CSC”) which found that due to his voluntary resignation he had no right to appeal a notation in his personnel record that he “resigned under investigation.”

The New Orleans Police Department had employed Mr. Moore for approximately sixteen (16) years when Hurricane Katrina wreaked havoc in southeast Louisiana on August 29, 2005. He was in New Orleans at the time of the hurricane’s impact and remained at his assigned post until September 2, 2005.

Mr. Moore is a single parent and has custody of his minor son who was residing with him. The child has a severe asthmatic problem and had begun to experience increasing symptoms. Due to power outages and no electricity in the City, the appellant’s son could not take his asthma medication via a nebulizer. Although the appellant attempted to substitute oral medication, it was not effective and the child’s symptoms increasingly worsened.

lijOn September 2, 2005, the appellant reported to his supervisor, Sgt. Erin Riley, and apprised his sergeant of his son’s worsening condition. At that point, Mr. Moore made the decision to remove his child from the City of New Orleans and to bring the child to the child’s mother in Texas.

After arriving in Texas, and due to a number of different complications involving his son, the appellant decided to resign from the New Orleans Police Department. Mr. Moore communicated his decision to resign to his supervisor on or about September 29, 2005. Thereafter, Mr. Moore returned to New Orleans and personally submitted a copy of his resignation letter to Marilyn Melder, the Assistant Personnel Director of the New Orleans Police Department.

Subsequent to his formal resignation on September 29, 2005, the appellant learned that the New Orleans Police Department had commenced an investigation and had designated in his personnel file that the appellant had “resigned under investigation,” also known as an “RUI.”

An RUI designation, for all intents and purposes, prohibits any former law enforcement officer from obtaining another law enforcement position and is a serious impediment to any employment whatsoever.

Upon learning of the RUI designation, the appellant filed an appeal with the CSC on or about April 19, 2006. Thereafter, the Department of Police filed a Motion for Summary Disposition which was taken up by the CSC on June 19, 2006. On July 17, 2006, the CSC rendered its decision, which in pertinent part states:

3* * *
The Appellant has no right of appeal to the Civil Service Commission. The Louisiana Fourth Circuit Court of Appeal has held that an employee has a right to appeal when the employee is forced to resign or involuntarily resigns. Stem v. New Orleans City Planning Com’n., 859 So.2d 696, 2003-0817 La.App. 4 Cir. 9/17/03, (La. App. 4 Cir.2003).[sic] However, the Appellant concedes that his resignation was voluntary. The statement in his personnel folder that the Appellant finds objectionable may simply be nothing more than a recitation of fact. To the extent that the appellant asserts that the statement interferes with his private property interests jurisdiction over such matters lies with the district courts. [Emphasis added.]

STANDARD OF REVIEW

The review by appellate courts of the factual findings in a CSC case is governed by the manifest error or clearly erroneous standard. However, when the CSC’s decision involves jurisdiction, procedure and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. Russell v. Mosquito Control Board, 06-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639-40; Banks v. New Orleans Police Dep’t, 01-0859, 01-1302, p. 3 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513-14. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. See Stern v. New Orleans City 4Planning Comm’n, 03-0817, pp. 5-6 (La.App. 4 Cir. 9/17/03), 859 So.2d 696, 699-700.

LEGAL ANALYSIS

Appellant assigns as error the CSC’s conclusion that he had no right of appeal to it of the action taken against him by the New Orleans Police Department in commencing an investigation and then designating his personnel file “resigned under investigation.”

The Louisiana Constitution of 1974, Art. X, treats the topic of Public Employees and lays out the laws governing Civil Service. More specifically, Art. X, § 10, states in pertinent part:

Section 10. (A) Rules. (1) Powers. Each commission is vested with broad and general rulemaking and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established. It may make recommendations with respect to employee training and safety. [Emphasis added.]
(4) Effect. Rules adopted pursuant hereto shall have the effect of law and be published and made available to the public. Each commission may impose penalties for violation of its rules by demotion in or suspension or discharge from position, with attendant loss of pay.
5(B) Investigations. Each commission may investigate violations of this Part and the rules, statutes, or ordinances adopted pursuant hereto.
* * *

Moreover, the Louisiana Constitution of 1974, Art. X, § 12, further states in pertinent part the law governing appeal:

Section 12. (A) State. The State Civil Service Commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths.
* * *
(B) Cities. Each city commission established by Part I of this Article shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.

Appellant cites Simon v. Board of Com’rs of Port of New Orleans, 04-0368 (La.App. 4 Cir. 5/12/04), 875 So.2d 102, for the proposition that the CSC has jurisdiction whenever an employment related issue is alleged.

Even though plaintiff here raises an employment related issue, we distinguish Simon , on the facts and the petition. In Simon petitioner alleged constructive discharge and wrongful termination, he also requested back pay and the reinstatement of the emoluments of employment with the Harbor Police 1 fiDepartment in addition to damages based on various tort claims. In the present matter, we note that unlike in Simon, plaintiff was not discharged or involuntarily terminated and he does not seek reinstatement to his job. Since plaintiff is not seeking to be re-employed, the CSC no longer has jurisdiction because its jurisdiction extends to “personnel matters and transactions” and plaintiff voluntarily chose no longer to be among the City’s personnel.

In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the United States Supreme Court held that the Due Process Clause provides that certain substantive rights — life, liberty and property — cannot be deprived except pursuant to constitutionally adequate procedures. The U.S. Supreme Court distinguished the categories of substance and procedure.

Nevertheless, we have held that an employee relinquishes his Loudermill rights, which are designed to protect his property right in continued employment, when he voluntarily resigns. See Abel v. Auglaize County Highway Dep’t., 276 F.Supp.2d 724, 738 (N.D.Ohio 2003) (finding employee’s resignation renders Loudermill inapplicable). Similarly, our brethren have held that an employee has no right to appeal when the employee voluntarily resigns or retires. Palmisano v. Department of Fleet Management, Parish of Jefferson, 97-745, p. 5 (La.App. 5 Cir. 12/10/97), 704 So.2d 862, 864. The question of whether an employee has the right to appeal to the CSC is analogous to the question of whether a plaintiff in district court has a cause of action. Banks, supra, 2001-0859 at p. 3, 829 So.2d at 514.

7Since we find no contradictory evidence in the record to indicate that Mr. Moore’s resignation was anything but voluntary, it follows that we find no error in the CSC’s decision that he does not have a right to appeal. This does not preclude plaintiff from seeking redress under tort law, but the CSC is not the proper forum under these facts.

AFFIRMED.

      . Simon further stated that the mere inclusion of tort claims in the petition does not change the nature of the claim, citing Reimer v. Medical Center of Louisiana at New Orleans, 95-2799 (La.App. 4 Cir. 1/29/97), 688 So.2d 165. Reimer was a case based upon discrimination that was brought in district court and held among other things that the fact that an employee sought a money judgment did not dictate that the proper forum was a district court.

      . La. Const. Art. X § 10(A)(1).