author: McDonald, j.

text:
    Paul J. KOZLOWICZ v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS; Richard Stalder, Secretary Thereof; David Bergeron, Warden St. Martin Parish Correctional Center II.
    No. 2008 CA 1806.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.
    Rehearing Denied May 4, 2009.

      Paul J. Kozlowicz, Lake Providence, Louisiana, In Proper Person Plaintiff/Appellant.
    Debra A. Rutledge, Baton Rouge, Louisiana, for Defendant/Appellee, Richard Stalder, Secretary, Louisiana Department of Public Safety & Corrections.
    Mary E. Hunley, Baton Rouge, Louisiana, for Defendant/Appellee, Office of Attorney General.
    Before PETTIGREW, McDONALD, HUGHES, JJ.
   McDonald, j.

l2The petitioner in this matter, Paul Ko-zlowicz, is a prisoner in the custody of the Department of Corrections, having been convicted of attempted aggravated rape in 1985. In March 2007, he filed a petition in the 19th Judicial District Court titled Petition for the Issuance of Writ of Habeas Corpus Pursuant to C.Cr.P. Art. 353, naming as defendants, the State of Louisiana, Department of Public Safety and Corrections; Richard Stalder, Secretary; and David Bergeron, Warden, St. Martin Parish Correctional Center II. Mr. Kozlowicz contended that he was entitled to be released from incarceration on February 23, 2007, based on a reduction in sentence due to good time.

Louisiana Revised Statutes 15:1184(A)(2) provides, “[n]o prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted.” Richard Stalder answered the suit maintaining that the lawsuit asserted claims under state law and filed into the record a copy of the Administrative Remedy Procedure, number HDQ-2007-0635.

The district court handled Mr. Kol-zwicz’s petition as a judicial review of an agency decision. The Department of Corrections response to the administrative review stated:

We have considered your statements in this matter. A qualified Headquarters staff member has closely reviewed your ARP to determine the validity of your claims, to assess this particular situation, and to issue a fair response.
You contend that the Department is negligent in not getting an approved residence plan for you prior to your release date. Act 26 of the 2006 Regular Legislative Session requires that all sex offenders have an approvefd] residence plan prior to being released by diminution of sentence. As stated, your first plan was denied and then your second plan of an out of state residence was submitted. In order to approve an out of state residence the receiving state must approve your residence plan and agree to accept your supervision. Your plan has been submitted. However, the state of Nevada has not returned the Interstate Compact accepting your supervision. As a certain amount of investigation must be conducted to accept your request, it may take awhile before an answer is received. Until such time, you must remain incarcerated unless you can submit another plan that would be approved. Your request for administrative remedy is denied.

_JjThe commissioner’s recommendation noted that the petitioner complained that his due process rights were violated when he was not released from physical custody on his good time release date, and that the Department contended that the petitioner had not obtained a required residency plan prior to his release date. At the hearing, the record was expanded, over petitioner’s objection, to include e-mails obtained by the Department indicating the petitioner’s Nevada residency plan was denied. The petitioner argued that failure of the Department to release him on his good time release date resulted in a loss of good time, and that the loss occurred without a hearing, in violation of his due process rights. The commissioner further noted that the matter would be considered as a habeas complaint as it was a complaint regarding the terms of his release, and he alleges he has been held beyond the release date without legal authority.

The commissioner found that La. R.S. 15:574.4(S) clearly applies to release due to diminution of sentence, and requires that a residency plan be approved prior to release. Neither of the two residency plans submitted by the petitioner had been approved, therefore, he could not be released. Based on the foregoing, the commissioner found that the petitioner failed to show that he was being unlawfully detained and recommended that the complaint be dismissed. Mr. Kozlowicz filed a traversal and request for rehearing into the record. After de novo review by the trial court, judgment was rendered dismissing petitioner’s habeas complaint with prejudice at his cost.

Subsequently, an order was issued by the trial court based on the petitioner’s request for rehearing in conformity with habeas relief, rather than as a request for judicial review. The order vacated the trial court’s judgment dated August 14, 2007, dismissing petitioner’s suit. It further ordered that the matter should be set for oral argument on the petitioner’s request for habeas relief.

In November 2007, Mr. Kozlowicz filed an amended petition for the issuance of writ of habeas corpus, alleging that La. R.S. 15:574.4(S) is unconstitutional as applied and/or on its face. A hearing was scheduled for November 19, 2007, which the petitioner |4and the Department attended. At the hearing, an attempt was made to resolve the matter by having a representative from the Department of Probation and Parole meet with the petitioner and assist in devising and approving a residency plan in order to effect release as soon as possible. However, the petitioner preferred that a judicial determination of the legality of the statute be made. The petition to amend was granted, and because the amended petition alleged unconstitutionality of a statute, it was ordered that the attorney general’s office be served with the petition, which necessitated a delay in the proceedings.

The hearing was continued on November 29, 2007. Petitioner argued that La. R.S. 15:574.4(S) should not be applied to him, that it is unconstitutionally vague and overbroad, and is an ex post facto application of law.

Louisiana Revised Statutes 15:574.4(S)(1) provides:

In cases where parole is permitted by law and the offender is otherwise eligible, the Board of Parole shall not grant parole to any sex offender either by an order of the Board of Parole or office of adult services pursuant to R.S. 15:571.3 until the Department of Public Safety and Corrections, division of probation and parole, has assessed and approved the suitability of the residence plan of such offender. In approving the residence plan of the offender, the department shall consider the likelihood that the offender will be able to comply with all of the conditions of his parole.

The petitioner argued La. R.S. 15:574.4(S) is unconstitutional as applied to individuals eligible for release pursuant to good time diminution of sentence. Petitioner correctly noted that he was not being paroled and is not eligible for parole. Because the statute says, “in cases where parole is permitted by law and the offender is otherwise eligible ...,” he maintains that it does not apply to prisoners who are being released by diminution of sentence and are not eligible for parole. He notes that the language is clear and unambiguous, and contends the legislature intended restricting the provision to cases of parole only because there are constitutionally protected liberty and property interests involved when a prisoner has earned the right to release by good time. Further, he asserts that prior to being granted parole, prisoners are given a hearing. In this case, he is being |3denied release that he had earned by good time, and therefore, has been deprived of a liberty and property interest without a hearing.

The Attorney General filed an exception raising the objection of no cause of action insofar as it was named as a defendant. However, it did participate in the hearing to argue on the constitutionality of the statute. It argued that the statute gives clear notice to sex offenders of the requirements that must be met prior to release pursuant to a grant of parole or pursuant to release via diminution of sentence; therefore, it is not vague. Contrary to assertions of the petitioner, the Attorney General argued that the process by which the residence plan is assessed meets constitutional requirements. The due process clause only requires that the process be fair, i.e., not arbitrary. The section clearly requires that the division of probation and parole assess “the likelihood that the offender will be able to comply with all of the conditions of his parole.” The conditions of parole are required to be set out in a certificate that a prisoner must sign before he/she is released. See La. R.S. 15:571.5 B(l). Under such requirements the statute does not give the Department unbridled discretion to arbitrarily reject a residence plan submitted by a sex offender.

Henry Goines, classification manager for the Department, testified that the crime for which Mr. Kozlowicz is imprisoned was committed July 28, 1985. When prisoners are released by diminution of sentence for crimes committed after July 1, 1982, they are released “as if on parole.” This requires that conditions imposed by the Department of Probation and Parole must be met. Prisoners released for diminution of sentence for crimes committed prior to July 1, 1982, were released with no parole supervision. The certificate presented to a prisoner before being released on parole or for diminution of sentence contains a statement of the conditions to be met, and is signed by the prisoner prior to release. Mr. Goines testified that the certificates are usually prepared approximately 30 days prior to the release date, but that in Mr. Kozlowicz’s case, a certificate would not have been prepared because he had not met all legal requirements |fifor release; specifically, he did not have an approved residence plan in accordance with La. R.S. 15:574.4(S). Mr. Kozlowicz’s full-term release date is May 15, 2009. In response to questions asked by Mr. Ko-zlowicz, Mr. Goines testified that the good time discharge date shown on the Department’s master record reflects the prisoner’s eligibility to be released under La. R.S. 15:571.5, if the prisoner chooses to abide by the conditions set forth in the certificate.

Considering all of the testimony and the evidence submitted at the November hearing, the commissioner reiterated his finding that La. R.S. 15:574.4(S) was applicable to the petitioner, and that an approved residence plan was required before he could be released from custody. He also found that the statute is constitutional, that it is not vague or overbroad, and that it does not engage in dual objectives. Petitioner’s argument that the statute constituted ex post facto application of law and an impairment of contract was found to be without merit. The commissioner noted that the petitioner has not lost or forfeited the previously earned good time, but that by enacting La. R.S. 15:574.4(S), the legislature has imposed an additional requirement on the petitioner and that the Department must comply with the law. The commissioner’s recommendation was that the petitioner’s suit be dismissed with prejudice at his cost, and that the Attorney General’s exception raising the objection of no cause of action be granted.

After careful de novo review by the trial court, judgment was rendered granting the Attorney General’s exception raising the objection of no cause of action and, finding that the petitioner failed to show that La. R.S. 15:574.4(S) is unconstitutional or that he is entitled to any relief, the suit was dismissed with prejudice at his cost. That judgment was appealed, and is the matter we now consider.

DISCUSSION

Petitioner assigns 13 errors to the trial court. The first four assignments of error deal with the trial court’s interpretation of La. R.S. 15:574.4(S). It is alleged that the trial court erred by not properly construing the phrases, “In cases where parole is 17permitted by law and the offender is otherwise eligible” and “the Board of Parole shall not grant parole,” and by not applying common and approved usage of the word “parole” when interpreting the statute as applicable to petitioner’s case. Also, petitioner asserts the trial court erred in its conclusion that the Legislature placed the requirement of an approved residency plan on the petitioner.

Assignments of error 5 and 6 challenge the trial court’s finding that the petitioner has not forfeited/lost good time and the conclusion that the petitioner is entitled to receive the benefits of previously earned good time when his residency plan is approved.

Assignments of errors 7 and 8 allege error by the trial court in its conclusion that the petitioner is not entitled to any further due process hearing and that the petitioner’s due process rights were not violated.

Assignment of error 10 alleges that the trial court erred in its conclusion that a contractual agreement was not formed and erred in applying “Bancroft” determinations to this case.

Assignments of error 9, 11, 12, and 13 allege the trial court erred with regard to the Constitutional consequences of interpreting La. R.S. 15:574.4(S) to be applicable to matters of release via diminution of sentence; erred in not giving sufficient consideration to the Constitutional and statutory lights of the petitioner; and erred in concluding that La. R.S. 15:574.4(S) does not invoke a dual object prohibition of the Louisiana Constitution.

Petitioner further questions, without foi’mally assigning error, whether the issuance of a final judgment dismissing petitioner’s suit for habeas relief, with prejudice, was appropriate without first having an evidentiary hearing. Petitioner maintains that there were factual disputes involved in the issues raised, and contends that he did not have a meaningful opportunity for full evidentiary process.

Petitioner argues that the Legislature intended that the provisions of La. R.S. 15:574.4(S) are only applicable “In cases where parole is permitted by law and the | .¡offender is otherwise eligible.” Asserting that he does not meet this statutory threshold, he contends that the provisions cannot be applied to him. Petitioner cites Hollingsworth v. City of Minden, 01-2658 (La.6/21/02), 828 So.2d 514, 517 for the proposition that “courts are bound to give effect to all parts of a statute and cannot give a statute an interpretation that makes any part superfluous or meaningless.” He further argues, based on Russell v. Town of Amite City, 99-1721 (La.11/8/00), 771 So.2d 289, 292, that “statutes cannot be interpreted by review of bits and pieces of the statutory scheme[; a]ll the words, like drops comprising the endless sea, must be read together.”

The propositions of law on which petitioner relies are valid; however, we do not agree that applying them to the statute at issue will produce the result petitioner desires. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all the laws on the same subject matter. La. C.C. art. 13; Russell v. Town of Amite City, 771 So.2d at 292. Also, when interpreting the law, the court should give it the meaning the lawmaker intended. La. C.C. art. 11; Id. We agree with the trial court that the intention of the legislature in enacting La. R.S. 15:574.4(S) was to impose the additional requirement of an approved residency plan prior to the release of prisoners incarcerated for sex crimes, whether they were released by parole or by order of the “office of adult services pursuant to R.S. 15:571.3.” Petitioner’s argument that the quoted words are not rendered superfluous or meaningless because it can be applied to other sex offenders who are permitted parole by law and are otherwise eligible but will be released via diminution of sentence (La. R.S. 15:571.3) rather than by parole fails to recognize that interpretation creates an unconstitutional equal protection of law issue. There is simply no valid reason for the legislature to make the requirement of an approved residence plan binding on sex offenders released by parole and on sex offenders released by diminution of sentence if they are eligible for parole, but does not impose the | ¡[requirement on sex offenders who are released by diminution of sentence but are not eligible for parole. We find no merit in petitioner’s assignments of error 1, 2, 3, or 4.

Assignments of error 5, 6, 7, 8, 9, 11,12, and 13 will be discussed in toto here as they are closely interrelated or intertwined. We note the crux of petitioner’s challenge of the statute is dependent on a property and liberty interest created by the earning of good time credit. The petitioner’s allegations of unconstitutionality, with the exception of the dual object prohibition, are based on his belief that he has a constitutionally protected interest in the good time that he earned, and that due process requires that he be afforded a hearing before the Department can deprive him of it. This also implicates the question that he raises as to the sufficiency of the hearing that produced the judgment he now appeals.

In considering petitioner’s claims of unconstitutionality, we begin with the well-settled principle that all statutory enactments are presumed to be constitutional. Polk v. Edwards, 626 So.2d 1128, 1132 (La.1993). The party challenging the constitutionality of a statute bears the burden of proving that statute to be unconstitutional. State v. Chester, 97-2790 (La.12/01/98), 724 So.2d 1276, 1282. Statutes are presumed valid and their constitutionality should be upheld whenever possible. State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, 408, cert denied, 525 U.S. 876, 19 S.Ct. 179, 142 L.Ed.2d 146 (1998). Because of these rules of construction, the party attacking the act must establish clearly and convincingly that the constitutional aim was to deny the legislature the power to enact the statute. Polk, supra.

Again, petitioner relies heavily on correct propositions of law incorrectly applied to his circumstances. He asserts that he has a due process right to good time once it has been earned or credited, and that the Department is statutorily obligated to promulgate and adopt procedures in accordance with the Administrative Procedures Act prior to the enforcement of forfeiture of good time. Although a prisoner who has been properly convicted has no constitutional or inherent right to early release from a valid sentence, Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the state may create an expectancy entitled to constitutional protection. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). We do not dispute that the petitioner has statutory and constitutional rights. However, we do not find that any of these rights have been violated.

We recognize that the petitioner was not released on the date, February 23, 2007, that the Department’s master record indicated he could have been discharged pursuant to diminution of sentence. However, this was not due to an action, or omission, by the Department resulting in a violation of due process because it was a deprivation without a hearing. As has already been established, the reason petitioner was not released on his good time discharge date is because he did not have an approved residence plan as required by La. R.S. 15:574.4(S). The fact that he has a constitutionally protected interest in good time does not deprive the legislature of the right to enact legislation that possibly has the effect of impacting that statutorily created interest. Further, the fact that the Department may not deprive a prisoner of good time without a hearing does not have any legal i-elevance to the situation here, because the Department did nothing to deprive petitioner of his good time. Rather, the Department was prohibited by statute from releasing the petitioner.

We have carefully considered all of the petitioner’s arguments and reviewed the cited jurisprudence. As noted previously, petitioner cites valid propositions of law, however, they have little or no application in his case. Due process is a flexible concept that vaiies with the particular situation. Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). The record makes clear that petitioner recognized the difficulty in presenting legal arguments pro se, and requested appointment of counsel, which was correctly denied. The reason we do not find in his favor has nothing to do with the presentation, however, but rather with the substance of the law.

|nWe note that the fact that rules have not been promulgated to define how a residency plan is approved is not fatal in this case because La. R.S. 15:574.4(S) does not require promulgation of a rule, and the required procedure is constitutionally permissible. Further, Hunter v. Stalder, 98-2326 (La.App. 1 Cir. 6/25/99), 738 So.2d 1169, the case on which he relies has been overruled by Victorian v. Stalder, 99-2260 (La.App. 1 Cir. 7/14/00), 770 So.2d 382. We do agree that a published rule may be preferable in order to avoid situations, as here, where the prisoner is unsure of what is required in order for a residency plan to be approved, and also to avoid an appearance of inconsistency in how the approval process is applied.

With regard to petitioner’s argument that he had a contractual interest in good time that was impaired by the passage of La. R.S. 15:574.4(S) in 2006, we are bound by Bancroft v. Louisiana Dept. of Corrections, 93-1135 (La.App. 1 Cir. 4/8/94), 635 So.2d 738. In Bancroft, the petitioner argued that his entry into the good time credits program constituted a contract with the Department, which rendered him not subject to parole conditions under La. R.S. 15:571.5 upon his early release under diminution of sentence. The fact that the petitioner here is not challenging being subjected to conditions as if on parole has no effect on the case’s holding on the contract issue. The court found that Mr. Bancroft’s entry into the good time credits program was only an option he chose to exercise that resulted in his eligibility for early release. “The accrual of those good time credits made him eligible for early release by diminution of sentence, provided that he agreed to the parole conditions mandated by La. R.S. 15:571.5 at the time of his release.”

Further, the Bancroft case makes clear that any conditions imposed on a prisoner released via diminution of sentence are valid as long as they are lawful on the date of release. The fact that those conditions may not have been required at the time the prisoner chose to earn good time credit is not legally relevant. Bancroft v. Dept. of Corrections, 635 So.2d at 741.

liaWe also note that this matter was given a full evidentiary hearing. There is no question but that petitioner’s due process rights have been met. Further, the facts relevant to the issues here are not in dispute and a further hearing would serve no purpose.

After careful review of the record, law, and jurisprudence relevant to this appeal, we find no error on the part of the trial court. Therefore, the judgment appealed is affirmed. Costs of this appeal are assessed to Paul J. Kozlowicz.

Petitioner also filed a motion to supplement and correct the appeal record. The motion was granted in part, denied in part, and referred to the panel on the merits of the case to decide whether correction of minute entries for June 11, 2007 and November 26, 2008 should be ordered. The motion is denied.

AFFIRMED. MOTION DENIED.

HUGHES and PETTIGREW JJ„ concur.

      . This contention undermines his former argument that the statute cannot be applied to prisoners being released pursuant to good lime diminution of sentence because of the constitutionally protected property/liberty interest.


source: Caselaw Access Project

license: Public Domain

text:
    Richard BROWN v. TURNER INDUSTRIES.
    No. 2008 CA 1346.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.

      Peggy M.H. Robinson, Baton Rouge, Louisiana, for PlaintifPAppellant, Richard Brown.
    Charles J. Duhe’, Baton Rouge, Louisiana, for Defendant/Appellee, Turner Industries.
    Before PETTIGREW, McDONALD, HUGHES, JJ.
   McDonald, j.

|2The plaintiff in this case, Richard Brown, filed a disputed claim for compensation against his former employer, Turner Industries, received by the Office of Workers’ Compensation on April 3, 2006. Exceptions raising the objections of res judi-cata and prescription were filed by Turner, and, after a hearing, the claim was dismissed with prejudice based on a finding that the matter had already been adjudicated.

A devolutive appeal was lodged; however a brief was not filed. Instead counsel for Mr. Brown filed a motion to remand the appeal record and order the Office of Workers’ Compensation District 5 to supplement the appeal record with the record of the proceedings in which the judgment was rendered that forms the basis for the res judicata exception. Turner answered the appeal requesting attorney fees pursuant to La. C.C.P. art. 863 against both plaintiff and his counsel.

The appeal was dismissed on October 7, 2008, pursuant to Court of Appeal Rule 2-8.6, failure to file a brief. The motion to remand the record was referred to the panel hearing the remaining matter, the defendant’s request for sanctions and attorney fees.

The underlying facts in this matter are that Mr. Brown was employed by Turner in 1996, working at the Georgia Gulf facility for Harmony Corporation, a subsidiary of Turner Industries. On or about September 26, 1996, Mr. Brown was subjected to a chemical exposure that required medical treatment. Turner paid Mr. Brown’s medical expenses, and beginning January 15, 1997, paid indemnity payments based on an average weekly wage of $269.46. In early 1998, medical evidence indicated that Mr. Brown was able to return to work, and his compensation was stopped effective March 3, 1998, although medical benefits were ongoing.

On October 27, 1999, a Judgment of Approval of Settlement was signed by a Workers’ Compensation judge based on a Joint Petition of Employee and Employer. The petition requested authority to enter into a compromise and settlement agreement of Mr. Brown’s claims against his employer and other tort defendants pursuant to La. R.S. |?)23:1271, et seq, providing for lump sum payments of workers’ compensation claims. The October 27, 1999 judgment discharged the employer, Turner, from all claims in connection with the exposure incident at Georgia Gulf upon payment of a lump-sum payment of $175,000.00.

In October 2002, Mr. Brown filed a disputed claim for compensation with the Office of Workers’ Compensation against Turner, alleging injury from chemical exposure in September 1996. A hearing on the matter was held December 12, 2003; however, neither Mr. Brown nor his legal counsel was present. The transcript of that hearing, which was admitted as an exhibit in the matter before us, indicates that Turner asserted that Mr. Brown’s claims had prescribed. The claim for indemnity benefits prescribed in February 2001, and his claim for medical benefits prescribed in September 2002. It was further asserted that Mr. Brown’s claim was also subject to an exception raising the objection of res judicata because the settlement of October 27, 1999, included a waiver of workers’ compensation benefits. The objections raising the exceptions of prescription and res judicata were both granted, and the case was dismissed with prejudice at claimant’s cost. That judgment was not appealed.

Turner had requested attorney fees for having to defend the claim. Hearing on that matter was February 27, 2004; Mr. Brown and his counsel were both present. Mr. Brown acknowledged that the claim had no merit because of the 1999 settlement, but argued that it was not frivolous because there was an issue regarding the attorney fees charged in that settlement in that they were excessive under the workers’ compensation statute. It was clear from Mr. Brown’s testimony that his complaint was against the attorney settling his original claim. Sanctions in the amount of $5,685.26 were imposed on Mr. Brown and his counsel, in solido. That judgment was appealed and affirmed.

In April 2006, another disputed claim for benefits was filed alleging the same 1996 injury. Hearing on that claim was on August 10, 2007, at which time the claim was|4dismissed with prejudice on the grounds of res judicata, and sanctions in the amount of $5,000.00 were ordered. That judgment was appealed and is the matter before us. Because the appeal has been dismissed, the remaining issue is Turner’s answer to the appeal requesting attorney fees for having to file an appellee brief and an answer to the appeal. We note that Turner did not file a brief and also that the workers’ compensation judge awarded $5,000.00 in sanctions. We decline to award additional attorney fees in this matter.

Brown’s motion to remand the record to be supplemented is denied. It is clear from the exhibits in the record that this matter has already been adjudicated, and there is no evidence that could support further intervention by this court.

Based on the foregoing, the motion to remand the record is denied; the appeal is dismissed; the answer to the appeal is denied. Costs of this appeal are assessed equally against Richard Brown and Turner Industries.

MOTION TO REMAND DENIED; TURNER INDUSTRIES REQUEST FOR ATTORNEY FEES DENIED.

      . Brown v. Harmony, L.L.C., 05-0747 (La. App. 1 Cir. 3/24/06), 934 So.2d 99.


author: DOWNING, J.

text:
    Gwen TATE v. Dale TATE.
    No. 2008 CA 1968.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.
    Jeffery Oglesby, Sherman Q. Mack, Albany, LA, for Plaintiff/Appellee, Gwen Tate.
    Floyd Falcon, Albany, LA, for Defendant/Appellant, Dale Tate.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   DOWNING, J.

12This is an appeal from a judgment amending an eaidier final judgment of partition pursuant to the plaintiffs Rule to Amend Judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Gwen Tate, and defendant, Roger Dale Tate, were divorced in 1990. On April 26, 2000, plaintiff filed a petition for partition of community property, seeking judicial partition of the community liabilities and assets, including defendant’s state retirement. By judgment dated July 1, 2002, the trial court partitioned the parties’ assets and liabilities and specifically partitioned the community’s interest in defendant’s state retirement as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that GWEN TATE is entitled to the Sims calculation of Defendant’s retirement, being
One-half (1/2) of a fraction, the numerator of which is the portion of the lump sum refund of accumulated contributions or of the benefit which is attributable to the years of service credit earned or purchased by Roger Dale Tate during the existence of the aforesaid community property regime, to wit, from September 29, 1969, until March 22, 1988, and the denominator of which is the total lump sum. or benefit.

(Emphasis by italics added). Neither party filed a motion for new trial in regard to the July 1, 2002 judgment of partition, nor was the judgment appealed.

On November 14, 2007, Plaintiff filed a Rule to Amend Judgment, averring that the portion of the July 2, 2002 judgment partitioning the community’s interest in defendant’s state retirement “was not drafted correctly and must be modified.” Thus, plaintiff sought to have the July 1, 2002 judgment amended to reflect a change in the denominator of the | ..¡formula from “the total lump sum or benefit,” as provided in the original judgment, to “the total number of years of service credit ROGER DALE TATE has with LASERS as of the date of fund [sic] or benefits become payable by LASERS.”

Defendant responded by filing a declina-tory exception raising the objection of lack of subject matter jurisdiction and a peremptory exception raising the objection of no cause of action. Defendant averred that the amendment sought by plaintiff in her Rule to Amend was substantive. Thus, he asserted that because plaintiff had not filed a motion for new trial or appealed the July 1, 2002 judgment, the trial court was now without jurisdiction to amend the substance of the judgment. Additionally, defendant averred that the Rule to Amend failed to state a cause of action because, even if the facts set forth in the Rule were accepted as true, the requested amendment could not be allowed.

A hearing was conducted on the rule and exceptions, at which time counsel for plaintiff introduced into evidence a letter from the Louisiana State Employees’ Retirement System (LASERS), indicating that LASERS could not divide defendant’s LASERS benefit with plaintiff because the judgment of partition was drafted incorrectly. At the close of the hearing, the trial court stated that it believed the requested amendment “under [LSA-C.C.P. art.] 1951(1) is just altering the phraseology of the judgment and not the substance.” Accordingly, the trial court signed a judgment, dated May 27, 2008, denying defendant’s exceptions and amending the July 1, 2002 judgment to provide as follows:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that GWEN TATE is entitled to the Sims calculation of Defendant’s retirement, being
|4One half (1/2) of a fraction, the numerator of which is the portion of the lump sum refund of accumulated contributions or benefit which is attributable to the years of service credit earned or purchased by Roger Dale Tate during the existence of the aforementioned community property regime, to wit, from September 29, 1969, until March 22, 1988, and the denominator of which is the total number of years of service credit ROGER DALE TATE has with LASERS as of the date of fund [sic] or benefits become payable by LASERS.

(Emphasis by italics added).

From this judgment, Defendant appeals, contending that the trial court erred in: (1) amending the July 1, 2002 judgment to change its substance; and (2) denying defendant’s exceptions.

DISCUSSION

Defendant argues on appeal that the May 27, 2008 amendment was an impermissible substantive amendment that contravenes La. C.C.P. art.1951. Defendant argues, therefore, that the May 27, 2008 amended judgment is an absolute nullity. We disagree.

Louisiana Revised Statutes 9:2801B governs the amendment of judgments that partition retirement benefits until the order “has been granted ‘qualified’ status” from the appropriate administrator, as follows:

Those provisions of a domestic relations order or other judgment which partitions retirement or other deferred work benefits between former spouses shall be considered interlocutory until the domestic relations order has been granted “qualified” status from the plan administrator and/or until the judgment has been approved by the appropriate federal or state authority as being in compliance with applicable laws. Amendments to this interlocutory judgment to conform to the provisions of the plan shall be made with the consent of the parties or following a contradictory hearing by the court |swhich granted the interlocutory judgment. The court issuing the domestic relations order or judgment shall maintain continuing jurisdiction over the subject matter and the parties until final resolution. (Emphasis added.)

This provision was added to La. R.S. 9:2801 by 2001 Acts 493 and governs the judgment before us, which was signed on July 1, 2002.

Here, Plaintiff sought to amend the judgment of partition because LASERS rejected it for non-compliance with its requirements. Since the judgment had not “been granted qualified status from the plan administrator,” it remained an interlocutory decree subject to revision. See above. Defendant obviously did not agree to the amendment, so the trial court held a hearing, as required by La. R.S. 9:2801 B. Accordingly, while not specifically mentioning La. R.S. 9:2801, the trial court followed the required procedure before amending the interlocutory judgment.

Further, the trial court found that the language in both judgnents had the same meaning; that the amendment was no more than an alteration of phraseology. Defendant contends in his brief on appeal that the amendment awards plaintiff “a larger percentage,” but he offered no evidence to support this allegation. Indeed, as set forth in both the original and amended judgments, plaintiff was awarded her proportionate share of defendant’s retirement fund. The trial court’s finding in this regard, therefore, is not manifestly erroneous.

Accordingly, on the record before us, we find no merit to Defendant’s argument that the amendment to the July 1, 2002 judgment was improper. Thus, we affirm the trial court’s May 27, 2008 judgment amending its earlier July 1, 2002 judgment to correct the award to plaintiff of her portion of | ^defendant’s LASERS retirement fund such that LASERS can distribute to plaintiff the interest .in the fund awarded to her in the July 1, 2002 judgment.

DECREE

For the above and foregoing reasons, we affirm the May 27, 2008 judgment of the trial court. Costs of this appeal are assessed against defendant, Dale Tate.

AFFIRMED.

      . While defendant lists two assignments of error, his second assignment of error is not individually briefed. Rather, his argument in brief addresses his first assignment of error regarding the propriety of the trial court's amendment of its earlier judgment. Accordingly, we will similarly address the propriety of the trial court’s amendment of its earlier judgment.

      . Louisiana Code of Civil Procedure art.1951 provides that a final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on the motion of any party; (1) to alter the phraseology of the judgment, but not the substance; or (2) to correct errors of calculation.


author: DOWNING, J. DOWNING, J.,

text:
    SECURITY PLUS, INC. v. LOUISIANA STATE POLICE-GAMING LICENSE SECTION and State of Louisiana Gaming Control Board.
    No. 2008 CA 2136.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.
    Writ Denied June 5, 2009.

      Daniel K. Rester, Richard B. Easterling, Baton Rouge, LA, for Plaintiff/Appellee, Security Plus, Inc.
    Karen L. Godwin, Baton Rouge, LA, for Defendants/Appellants, Louisiana State Police-Gaming License Section & Louisiana Gaming Control Board.
    Before: CARTER, C.J., WHIPPLE and DOWNING, JJ.
   DOWNING, J.

12The Louisiana State Police — Gaming License Section (State Police) and the State of Louisiana Gaming Control Board (the Board) appeal a judgment in which they are ordered to issue or deny a Video Gaming Device Owner License to Security Plus, Inc. (Security Plus) or to “send a detailed explanation as to why the license has not been issued to the applicant within thirty (30) days of this hearing.” For the following reasons, we affirm.

In July 2007 Security Plus filed a Video Gaming Device Owner application with the State Police. By July 2008 the Board had neither issued nor denied the requested license, and although there had been some communication between the parties, the Board had not provided any explanation for the delay. Security Plus, therefore, filed a petition for writ of mandamus seeking an order that the State Police and the Board comply with La. R.S. 27:311 and issue the requested license or, in the alternative, issue an order that the State Police cease a portion of its investigation. In pertinent part, La. R.S. 27:311 J provides as follows:

Within a maximum period of one hundred twenty days from receipt of the license application, the Louisiana Gaming Control Board shall either issue the license or send a detailed explanation as to why the license has not been issued to the license applicant.

In response, the State Police and the Board filed a motion to dismiss on grounds of mootness and, alternatively, a peremptory exception of no cause of action. Attached to the memorandum in support of the motion was a copy of a letter from the State Police to Security Plus dated August 15, 2008. The letter stated that it was sent pursuant to La. R.S. 27:311 J.

These matters came on for hearing on August 25, 2008. By judgment dated August 29, 2008, the trial court denied the motion to dismiss, overruled the peremptory exception of no right of action, and ordered the Board to issue or deny |sthe license or to provide within thirty days a detailed explanation as to why the license has not been issued to the license applicant.

The State Police and the Board now appeal, asserting three assignments of error, summarized as follows:

1. The trial court erred in denying their exception of no cause of action in that La. R.S. 27:311 J addresses the performance of discretionary duties, which are not subject to a writ of mandamus, and in rity Plus failed to show that it had no relief available through ordinary proceedings; that Secu-
2. The trial court erred in not finding the matter moot considering the State Police’s August 15 letter explaining why the license had not been issued;
3. The trial court erred in entering-judgment not in accordance with law.

Mootness

The State Police and the Board argue that the letter to Security Plus of August 15, 2008 was an adequate response to the requirement set forth in La. R.S. 27:311 J that the Board “either issue the license or send a detailed explanation as to why the license has not been issued to the license applicant.” Therefore, they argue that the matter is moot. We disagree.

The letter outlines a chronology of events and concludes with the statement that the investigation has exceeded 120 days “due to the continuing suitability investigation of Security Plus and its owners, operators and directors.” But nowhere does the letter provide any details concerning the areas in which the application is deficient, what remains to be investigated, the present status of the investigation, or any indication as to why the license has not been issued or denied. The trial court denied the motion to dismiss on grounds of mootness because the letter did not “give any details in terms of the suitability investigation,” although the letter did explain why the investigation exceeded 120 We agree with the trial court that a cursory conclusion that the investigation is ongoing does not adequately comport with the requirements of La. R.S. 27:311 J for “a detailed explanation as to why the license has not been issued to the license applicant.” Accordingly, we will affirm the trial court’s ruling on the motion to dismiss on grounds of mootness. The second assignment of error is without merit. ,,days.

No Cause of Action

“The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition.” Scheffler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641, 646. The State Police and the Board contend here that the duties mandated by La. R.S. 27:311 J are purely discretionary and that, therefore, they are not properly the subject matter of a mandamus action. In this regard, La. C.C.P. art. 3863 provides in pertinent part: “[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law[.]”

Louisiana Revised Statutes 27:311 J, however, employs mandatory language: “the Louisiana Gaming Control Board shall either issue the license or send a detailed explanation as to why the license has not been issued.” (Emphasis added.) No discretion exists under this language. The Board shall either 1) issue the license or 2) send a detailed explanation as to why not. Accordingly, we conclude under these facts that Security Plus has stated a cause of action for mandamus.

We note and agree with the State Police’s and the Board’s argument that the Board is not required to issue gaming licenses. La. R.S. 27:301 D plainly states that the issuance of a license is “solely within the discretion of the [State Police].” La. R.S. 27:311 J, however, mandates the sending of an explanation in lieu of the _Ji¿issuance of a license. Accordingly, we find no merit in the State Police’s and the Board’s argument in this regard.

The State Police and the Board also argue that Security Plus has a remedy apart from a writ of mandamus, citing La. C.C.P. art. 3862, which provides in pertinent part, “[a] writ of mandamus may be issued in all eases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice.” The State Police and the Board argue that Security Plus could challenge the Board’s actions through administrative appeals and judicial review. We conclude, however, that such proceedings would not provide relief to which Security Plus is entitled under La. R.S. 27:311 J.

Accordingly we find no merit in the State Police’s and the Board’s first assignment of error that Security Plus has failed to state a cause of action. We recognize that Security Plus sought relief beyond that appropriate for a writ of mandamus. The trial court, however, granted relief only pursuant to La. R.S. 27:311 J, which Security Plus sought, noting that it had authority only to rule on this issue.

Extent of Trial Court’s Ruling

The State Police and the Board argue in their third assignment of error that the judgment at issue impermissibly ordered it to disclose confidential information and that the trial court expanded the requirements of La. R.S. 27:311 J to require a statement on whether the investigation is ongoing. The judgment, however, contains no such requirements. It orders that the requested gaming license be issued or denied, “or in the event a license is not issued or denied, that the State of Louisiana Gaming Control Board send a detailed explanation as to why the license has not been issued to the applicant within thirty (30) days of this | fihearing.” The trial court’s reasons merely suggest the type of information that might be included to explain why the license has not been issued. This assignment of error lacks merit.

DECREE

For the foregoing reasons, we affirm the August 29, 2008 judgment of the trial court. Costs of this appeal in the amount of $1,135.00 are assessed against the Louisiana State Police — Gaming License Section and the State of Louisiana Gaming Control Board.

AFFIRMED.

DOWNING, J. specially concurs.

WHIPPLE, J. concurs in result only.

DOWNING, J.,

specially concurring.

| Nlie constitution of the State of Louisiana sets out the purpose of government:

§ 1. Origin and Purpose of Government Section 1. All government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights, and promote the happiness and general welfare of the people. The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.

It is my personal opinion that gaming is gambling and should be suppressed according to our constitution. However, we are fortunate to live in a country where we follow the rule of law and not of men. Therefore, I am compelled to follow our supreme court, whether or not I agree with them.

The application for this license was filed in July 2007. The statute says a license shall be issued in 120 days or a detailed explanation should be sent as to why it was not issued. The State Police did not send this letter until August 15, 2008, after this litigation was filed, and apparently takes the position that it may now do nothing. At oral argument of this case in February 2009, the State Police [2they seem to take the position that the letter does not need to inform the applicant of those things that need to be done before the license is issued or denied.

We are to interpret the law to give it effect. If the purpose of law is to protect the rights of the individual, and then we interpret this statute so that the State Police never has to issue or deny a license then, in my opinion, we violate the constitution. The only way to give this statute effect, in the light of reason is to say that the State Police has a continuing obligation every 120 days to either issue or deny a license, or send a detailed letter informing the applicant what it is that the applicant needs to do to finish the application process and, if it doesn’t, the applicant should have a remedy by injunction to have its application ruled on.

      . After the appeal was filed, Security Plus filed a motion for expedited appeal. The State Police and the Board filed a motion to strike all factual allegations in tire motion for expedited appeal together with an opposition to the motion, Another panel of this court granted the motion for expedited appeal, but it referred the motion to strike to this panel. We deny the motion to strike because the mailer is moot. The motion to strike concerned “any and all factual allegations set forth in the Memorandum in Support of Motion for Expedited Appeal.” Since the expedited appeal has been granted, allegations contained in the supporting memorandum are of no moment.

      . As discussed above, Security Plus asked that the State Police and the Board be ordered to issue the requested license or to order the State Police to cease a portion of its investigation. These requests are not properly within the scope of a mandamus action.


author: DOWNING, J. WHIPPLE, J.,

text:
    Rodney J. STRAIN, Jr., Sheriff and Ex-Officio Tax Collector of St. Tammany Parish v. TONY CROSBY’S FURNITURE GALLERY and Tony Crosby.
    No. 2008 CA 1807.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.

      G. Brice Jones, Ross F. Lagarde, Slidell, LA, for Plaintiff/Appellant, Rodney J. Strain, Jr., Sheriff and Ex-Officio Tax Collector of St. Tammany Parish.
    James M. White, III, Covington, LA, Brett S. Lala, New Orleans, LA, for Defendant/Appellee, Tony Crosby’s Furniture Gallery and Tony Crosby.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   DOWNING, J.

IgRodney J. Strain, Jr., Sheriff and Ex-Officio Tax Collector of St. Tammany Parish (Sheriff), appeals a judgment that granted Tony Crosby’s Furniture Gallery and Tony Crosby’s (Crosby’s) motion for involuntary dismissal, recognizing the Sheriffs failure to prove sufficient facts to establish jurisdiction over Crosby’s.

For the following reasons, we affirm the judgment.

PERTINENT FACTS AND PROCEDURAL HISTORY

Crosby’s sells furniture from a bricks and mortar store in Picayune, Mississippi. Crosby’s also maintains a website with driving directions from various locations, including St. Tammany Parish, Louisiana. From time to time, Crosby’s makes deliveries in its own trucks to its customers, including customers in St. Tammany Parish.

Sheriff Rodney J. Strain, Jr., in his capacity as ex-officio tax collector of St. Tammany Parish, sent a notice to Tony Crosby’s Furniture Store in November 2007 informing it of his intent to assess Crosby’s for tax purposes. After some correspondence, a hearing date was set for January 22, 2008. Crosby did not attend this hearing.

The Sheriff proceeded with the hearing. On February 7, 2008 he issued a final assessment and notice of assessment pursuant to La. R.S. 47:337.50(A) and La. R.S. 47:337.51, respectively, in the amount of $370,013.13. On April 6, 2008, after sixty days of inaction by Crosby, this amount became the Sheriffs final assessment in accordance with La. R.S. 47:337.51(A).

To enforce the final assessment, the Sheriff filed a Rule to Show Cause in the 22nd Judicial District Court. After a hearing on July 18, 2008, the trial court granted Crosby’s motion for involuntary dismissal, dismissing the plaintiffs rule with prejudice. The judgment signed on July 22, 2008, provides that the Sheriff “failed to present facts sufficient to prove Plaintiffs jurisdiction to assess the taxes 1 ^sought to be assessed and collected from defendants or the correctness of Plaintiffs February 7, 2008 Final Assessment.”

The Sheriff appeals, asserting the following assignments of error to this court:

1. The trial court erred by granting Tony Crosby’s motion for involuntary dismissal given its judicial admissions, contained in its Answer, that it delivered goods sold into Louisiana via delivery truck, advertises in St. Tammany Parish and maintains a web-site providing directions from various locations in St. Tammany Parish to its retail store in Mississippi.
2. The trial court erred by allowing Tony Crosby to collaterally attack the Sheriffs Final Assessment, which was perfected in accordance with the Uniform Tax Code, after all administrative and judicial appeal delays expired.

DISCUSSION

Louisiana Code of Civil Procedure article 1672(B) provides for a motion for involuntary dismissal of a plaintiffs action in the course of a bench trial:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

The trial court’s grant of an involuntary dismissal is subject to the well-settled manifest error standard of review. Accordingly, in order to reverse the trial court’s grant of involuntary dismissal, we must find, after reviewing the record, that there is no factual basis for its finding or that the finding is clearly wrong or manifestly erroneous. The issue is not whether the trial court was right or wrong, but whether its conclusion was reasonable. Broussard v. Voorhies, 06-2306, p. 3-4 (La.App. 1 Cir. 9/19/07), 970 So.2d 1038, 1041-1042, writ denied, 07-2052 (La.12/14/07), 970 So.2d 535.

Here, the trial court concluded that the Sheriff did not present facts sufficient to prove plaintiffs jurisdiction to assess the taxes against Crosby’s. Therefore, the |4narrow issue we consider is whether the trial court erred in finding that the Sheriff failed to present sufficient facts to establish taxing jurisdiction over Crosby’s is reasonable.

Louisiana Revised Statute 47:337.61(4) states that when an affidavit accompanies a pleading on behalf of a taxing authority, the affiant must allege the facts as true to the best of his or her knowledge. Section (4) of this statute reads:

Whenever the pleadings filed on behalf of the taxing authority, or on behalf of the collector, shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.

Effectively, in order for a collector’s affidavit to establish a prima facie case and shift the bui’den of proof to the opposing party, the affiant must allege that all of the facts concerning the pleadings are “true to the best of the affiant’s knowledge or belief.” Id. Without this personal attestation by the affiant, the taxing authority neither meets nor shifts its burden of proof. Parish of East Baton Rouge v. Kosay Enterprises, Inc., 368 So.2d 178, 181 (La.App. 1 Cir.1979).

In this case, an affidavit was submitted by the account manager for the Sheriffs attorney. She alleged that the taxes allegedly due by Crosby’s were the Sheriffs “best estimation” and that the tax estimates contained in the Sheriffs pleading were “based on a Final Assessment of all taxes, after due notice and hearing” by the Sheriff.

The affidavit, however, failed to contain the language necessary under La. R.S. 47:337.61(4), stating that the pleadings are “true to the best of the affiant’s knowledge or belief.” Accordingly, the Sheriff failed to set forth the requisite facts sufficient to shift the burden of proof to Crosby’s. Ko-say Enterprises, Inc., 368 So.2d at 181. And the Sheriff failed to present any other evidence. The trial court, | .therefore, reasonably concluded that the Sheriff did not present sufficient facts to establish authority to tax Crosby’s.

DECREE

For these reasons, the trial court was reasonable and did not err in concluding that the Sheriff failed to present facts sufficient to assert taxing authority over Crosby’s. We affirm the trial court’s judgment. Costs of this appeal in the amount of $554.95 are assessed against Rodney J. Strain, Jr., Sheriff and Ex-Officio Tax Collector of St. Tammany Parish.

AFFIRMED.

WHIPPLE, J. concurs for reasons assigned.

WHIPPLE, J.,

concurring.

_JjPretermitting the jurisdictional issues, and, assuming arguendo that Crosby’s could properly attack the sheriffs final assessment, I agree that the result reached by the majority is correct solely because I agree that the affidavit of the employee of the law firm representing the tax collector was insufficient to establish the correctness of the amount assessed. Accordingly, I concur in the result only.


author: CARTER, C.J.

text:
    Halimah KNOX v. WEST BATON ROUGE CREDIT, INC.
    No. 2008 CA 1818.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.

      Jerrard M. Young, Baton' Rouge, LA, for Plaintiff-Appellant, Halimah Knox.
    Richard L. Crawford, Baton Rouge, LA, for Defendant-Appellee, West Baton Rouge Credit, Inc.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   CARTER, C.J.

|2Plaintiff appeals a trial court judgment sustaining a peremptory exception raising the objection of prescription and dismissing plaintiffs declaratory action with prejudice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The record establishes that on October 6, 2006, West Baton Rouge Credit, Inc. (WBR Credit) filed a petition for executory process against Margaret Watson and plaintiff, Halimah Knox in rem only, who were co-owners of immovable property located in Port Allen, Louisiana (the property). The petition for executory process alleged that Margaret Watson was indebted to WBR Credit for $2,018.62, plus interest, arising out of a December 17, 2003 final judgment that had been rendered against her after she defaulted on a loan. The petition further alleged that the indebtedness was secured by an April 3, 2001 collateral mortgage and mortgage note confessing judgment that had been previously granted on the property by Margaret Watson and plaintiff in favor of WBR Credit.

The trial court ordered the issuance of a writ of seizure and sale of the property to the City Marshall for Port Allen on October 6, 2006. On November 14, 2006, plaintiff was personally served'with notice of the seizure and sale by virtue of the execu-tory process that had been issued by the trial court. To satisfy the 2003 judgment, the City Marshall sold the property by auction on December 27, 2006, to Joel A. Gordon, Sr. for $16,666.66, after complying with all legal requisites. Thereafter, the inscriptions for the collateral mortgage, the 2003 judgment, and the notice of | gseizure were all cancelled from the West Baton Rouge public records. Subsequently, the City Marshall issued a check made payable to Margaret Watson and plaintiff on January 3, 2007, in the amount of $9,537.29, representing the excess proceeds from the sale after WBR Credit’s judgment was satisfied and interest and costs were paid.

On January 9, 2008, plaintiff filed a petition for declaratory judgment against WBR Credit in a separate suit, requesting that the trial court declare: (1) the April 3, 2001 collateral mortgage and mortgage note absolutely null; (2) the seizure of plaintiffs interest in 'the property unlawful; (3) informalities existed in the seizure and sale of the property; and (4) plaintiffs entitlement to records of all her loans with WBR Credit. In an amended and supplemental petition, plaintiff further alleged that the seizure and sale of the property were unlawful because her signature was forged on the collateral mortgage and mortgage note, rendering them absolutely null. WBR Credit responded to plaintiffs petition by filing a peremptory exception raising the objections of no right of action, no cause of action, res judicata, and prescription. The trial court heard argument on the exceptions on January 29, 2008, and then orally ruled that:

[Plaintiff] had notice of everything as of November [14], 2006. If she had felt that [the] mortgage was forged, that was the time for her to come in and say.... [A]nd then she got the check January 3, 2007, for the excess [from the judicial sale.] Now more than a year later she is coming back, after she has gotten the proceeds, after the sale has gone on, saying Wait I don’t think that was my signature on that’. I find it totally untimely. As far as I think her rights, she should have brought it at the time of the seizure. Even if it had a nullity ... had it been ... forged, her time for doing that is over.... This matter is dismissed as being ... untimely.

|4A judgment sustaining WBR Credit’s exception of prescription and dismissing plaintiffs declaratory action with prejudice was signed on January 30, 2008. Plaintiffs appeal followed.

LAW AND ANALYSIS

In her petition for declaratory judgment, plaintiff generally challenges the validity of the collateral mortgage and mortgage note, as well as the executory process procedure. Plaintiff argues on appeal that the trial court erred in finding her declaratory action had prescribed. Because evidence was introduced at the hearing on the peremptory exception objection to prescription, the trial court’s findings are reviewed under the manifest error-clearly wrong standard of review, Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Babineaux v. State ex rel. Dept. of Transp. and Development, 04-2649 (La.App. 1 Cir. 12/22/05), 927 So.2d 1121, 1123.

The right to seek a declaratory judgment does not itself prescribe. However, the nature of the basic underlying action determines the appropriate prescriptive period. This is because prescription is an issue regarding a plaintiffs standing to seek the declaratory judgment. Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482 (La.4/12/05), 898 So.2d 1260, 1265; Church Point Wholesale Beverage Co., Inc. v. Tarver, 92-2658 (La.2/22/93), 614 So.2d 697, 708. This case involves plaintiffs basic allegation that the collateral mortgage and mortgage note were forged and, therefore, could not be used to secure the judgment that resulted in the executory process procedure whereby the property was seized and sold.

|,-,Generally, a debtor has two legal options available for raising objections to an executory proceeding before the property is sold to a third party. The first option is to file a petition for injunction in the court where the executory proceeding is pending, either in the executory proceeding or in a separate suit, “when the debt secured by the ... mortgage ... is extinguished, or is legally unenforceable, or if the procedure required by law for an executory proceeding has not been followed.” LSA-C.C.P. art. 2751. The second option is for the debtor to file a suspensive appeal from the order of seizure and sale. The suspen-sive appeal must be taken within fifteen days of the signing of the order directing the issuance of a writ of seizure and sale. LSA-C.C.P. art. 2642; Antoine v. Chrysler Financial Corp., 00-0647 (La.App. 4 Cir. 3/7/01), 782 So.2d 651, 652-658.

If a debtor allows the seizure and sale to a third person to proceed uncontested without filing a suit for injunction or a suspensive appeal, all defenses and procedural objections to the sale are waived, unless the property is sold and remains in the hands of the foreclosing creditor. See Reed v. Meaux, 292 So.2d 557, 560 (La.1973); Williams v. First Heritage Credit of LA, LLC, 06-1066 (La.App. 1 Cir. 3/23/07)(unpublished), 953 So.2d 205 (table), writ denied, 07-0982 (La.6/22/07), 959 So.2d 511; Powell v. Carter, 233 So.2d 369, 374 (La.App. 1 Cir.), writ refused, 256 La. 269, 236 So.2d 37 (1970); American Thrift & Finance Plan, Inc. v. Richardson, 07-640 (La.App. 5 Cir. 1/22/08), 977 So.2d 105, 108; Antoine, 782 So.2d at 653. This case involves a sale to a good faith third-party purchaser, not the creditor. Plaintiff did not exercise any option to stop or annul the sale; therefore, she has waived all defenses and procedural | [¡objections to the sale that she may have brought in the executory process proceeding.

Instead, plaintiff brought a separate suit to request a declaration that the April 3, 2001 collateral mortgage and mortgage note were null and void due to an alleged forgery. Thus, plaintiff is attempting to attack the December 17, 2003 final judgment rendered against the property’s co-owner by alleging that her signature was forged on the April 3, 2001 collateral mortgage and note used to secure the debt for which the executory process was initiated. Defects in the executory proceeding that amount to fraud or ill practice may be raised for the first time in an action to annul a judgment. Slidell Bldg. Supply, Inc. v. I.D.S. Mortg. Corp., 273 So.2d 343, 347 (La.App. 1 Cir.1972), writ denied, 274 So.2d 708 (La.1973).

Judgments can be attacked at any time on the grounds that they are absolutely null under the exclusive provisions of LSA-C.C.P. art.2002 (vices of form that sound of due process violations), or relatively null as provided by LSA-C.C.P. art.2004 (vices of substance that sound in fraud or ill practice). See Roach v. Pearl, 95-1573 (La.App. 1 Cir. 5/10/96), 673 So.2d 691, 693; Bernard v. Fireside Commercial Life Ins. Co., 92-0237 (La.App. 1 Cir. 11/24/93), 633 So.2d 177, 184, writ denied, 93-3170 (La.3/11/94), 634 So.2d 839; Bankers Ins. Co. v. State, 37,-080 (La.App. 2 Cir. 4/11/03), 843 So.2d 641, 644-645, writ denied, 03-1240 (La.6/27/03), 847 So.2d 1268. An alleged forgery has an element of fraud, and is thus a vice of substance that is grounds for a relative nullity. See Baptiste v. Shuler, 01-1127 (La.App. 3 Cir. 3/6/02), 809 So.2d 1210, 1215, writ denied, 02-0989 (La.6/7/02), 818 So.2d 770. Therefore, plaintiffs declaratory action attacking the judgment supporting the executory process must be brought 17within one year of the discovery of the fraud or ill practice. LSA-C.C.P. art. 2004 B.

When plaintiff was personally served with notice of the seizure and sale of the property on November 14, 2006, she knew or should have known at that point that something was wrong. The notice of seizure and sale clearly referenced the ex-ecutory process proceeding brought by WBR Credit against plaintiff and Margaret Watson and it contained a legal description of the property. Although she received the notice, plaintiff did not attempt to stop the seizure and sale of the property for any reason. And plaintiff did not allege fraud or forgery on any of the documents supporting the executory process until January 9, 2008, over one year after she had received notice of the seizure and sale, the sale was completed to a good faith third-party purchaser, the mortgage had been cancelled, and the extra proceeds had been issued to her and Margaret Watson.

The time limitation in LSA-C.C.P. art.2004 is actually a peremptive period, not a prescriptive one. However, the analysis and the principles of the discovery rule are the same. Ellison v. Ellison, 06-0944 (LaApp. 1 Cir. 3/23/07), 960 So.2d 155, 157, n. 1. The jurisprudence of this state has consistently held that the one-year peremptive period in LSA-C.C.P. art. 2004 begins to run on the date that the injured party discovers, or should have discovered through the exercise of reasonable diligence, information on which a cause of action might be based. Whenever there is notice enough to excite attention, put a person on guard, or suggest further investigation, this is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Ellison, 960 So.2d at 157; Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 510-511; Dau-zat, 710 So.2d at 1090-1091; Kambitsis v. Sehwegmann Giant Supermarkets, Inc., 95-478 (La.App. 5 Cir. 11/15/95), 665 So.2d 500, 502, writ denied, 95-3016 (La.2/9/96), 667 So.2d 540, cert. denied, 519 U.S. 907, 117 S.Ct. 268, 136 L.Ed.2d 191 (1996). The trial court correctly concluded that information such as personal notice of a seizure and sale of property is sufficient to start the running of the one-year time period. Therefore, plaintiffs claim to annul the judgment supporting the executory process based upon an alleged forgery is untimely. We find no manifest error in the trial court’s judgment dismissing plaintiffs claim.

CONCLUSION

After a thorough review of the pleadings and the record in this matter, we affirm the trial court’s judgment dismissing plaintiffs suit with prejudice. Costs of this appeal are assessed to plaintiff/appellant, Halimah Knox.

AFFIRMED.

      . Plaintiff is sometimes referred to in the record as “Haliman Knox."

      . In the same filing, WBR Credit brought a dilatory exception raising the objection of vagueness of the petition; however, that exception is not relevant to this appeal.

      . We expressly note that we affirm the trial court’s judgment only insofar as it relates to the determination that plaintiff lacked standing to seek the declaratory judgment because her attack on the judgment supporting the executory process leading to the seizure and sale of the property was untimely. See Church Point Wholesale Beverage, 614 So.2d at 708.


author: ROLAND L. BELSOME, Judge.

text:
    Kathy Richmond Zeitoun wife of/and Abdulrahman ZEITOUN v. The CITY OF NEW ORLEANS, C. Ray Nagin, Individually and as Mayor of the City of New Orleans, The State of Louisiana, Through its State Police, et al.
    No. 2008-CA-0782.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 1, 2009.

      Louis R. Koerner, Jr., Koerner Law Firm, Houma, LA, for Plaintiffs/Appellants.
    James B. Mullaly, Assistant City Attorney, Penya Moses-Fields, Nolan P. Lambert, Chief Deputy City Attorney, New Orleans, LA, for The City of New Orleans and Mayor C. Ray Nagin.
    James D. “Buddy” Caldwell, Attorney General, Michael C. Keller, Assistant A.G., Phyllis E. Glazer, Assistant A.G., Department of Justice, Litigation Division, New Orleans, LA, for Defendant/Appellee, The State Of Louisiana, through the Department of Public Safety and Corrections.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

_JjPlaintiffs-AppeIlants Kathy Richmond and Abdulrahman Zeitoun appeal the trial court’s granting of Defendants-Appellees’ exceptions of no cause of action and denying Appellants’ motion to compel discovery. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Appellants filed their Original Petition on August 28, 2006, alleging false imprisonment and false arrest of Mr. Zeitoun during the aftermath of Hurricane Katrina, naming the City of New Orleans, C. Ray Nagin, individually and as Mayor, through the New Orleans Police Department as Defendants.

Appellants allege that on September 6, 2005, Officer Donald Lima of the New Orleans Police Department entered Mr. Zeitoun’s property, arrested and handcuffed him, and placed him in a van without probable cause or reading any Miranda rights. Appellants assert that Mr. Zeitoun was transported in the van to the Union Passenger train station in New Orleans, fingerprinted, photographed, and retained in police custody, where he remained for three days and suffered a large |2splinter for which he was denied medical treatment. On the third day, Appellants allege that Mr. Zeitoun was transported to the Elayn Hunt Correctional Center in St. Gabriel, Louisiana, where he informed the employees of his religious beliefs which disallowed the consumption of pork, but that this request was disregarded, as well as requests for medical treatment. Next, Appellants assert that Mr. Zeitoun was brought to a maximum security prison, where his requests to telephone his wife and have medical treatment were denied, and that although he was eventually permitted to use the telephone, he missed his turn because he fell asleep while waiting.

A review of the record evidences that Mr. Zeitoun was charged with looting and possession of stolen goods, with bail set at $75,000.00. A document signed by the minute clerk dated September 14, 2005, reveals that on that date, Mr. Zeitoun appeared without counsel before the trial judge; that the court appointed OIDP to stand in as Mr. Zeitoun’s defense counsel on that date; and that the court set the bond at $50,000.00 for the looting charge and $25,000.00 for the possession of stolen property charge.

Mr. Zeitoun asserts that there was no method to post bond at that time. Mr. Zeitoun’s wife ultimately secured his release on September 29, 2005, for a total of 23.5 days of detention. Mr. Zeitoun claims that in addition to being unlawfully | ^detained, he also suffered from weight loss and a torn muscle, and that several items were not returned to him upon his release.

The City of New Orleans and Mayor C. Ray Nagin filed a Peremptory Exception of No Cause of Action on September 29, 2006. On October 81, 2006, the State of Louisiana through the Department of Public Safety and Corrections (“the State”) filed a Motion for Protective Order and Exceptions of Improper Cumulation and No Cause of Action. On March 1, 2007, Appellants filed a First Amended Petition for Damages.

The trial court heard oral arguments on the exceptions on March 23, 2007. In a judgment signed April 3, 2007, the court dismissed Appellants’ Original and First Amended petitions with prejudice. After the dismissal with prejudice, Appellants filed a Second Amended Complaint adding Burl Cain and Officer Donald Lima as defendants at 4:36 p.m. on April 3, 2007, stamped with a receipt date of April 4, 2007. The record does not demonstrate that the Second Amended Petition was ever considered by the trial court.

STANDARD OF REVIEW

An appellate court subjects the grant of an exception of no cause of action to de novo review because the exception raises an issue of law and the trial court’s decision is based solely on the sufficiency of the petition. Fink v. Bryant, 2001-0987, p. 3 (La.11/28/01), 801 So.2d 346, 348-49.

UDISCUSSION

Appellants set forth three assignments of error: first, that the district court erred when it granted the exception of no cause of action to the State; second, that the district court erred when it granted the exception of no cause of action to the City of New Orleans and Mayor C. Ray Nagin; and third, that the district court erred in denying Appellants’ motion to compel further discovery.

On August 28, 2005, the City of New Orleans issued a mandatory evacuation order, and on September 6, 2005, Mayor Nagin issued a forced evacuation proclamation pursuant to La. R.S. 29:727. Ap-pellees (“the City” and “Mayor Nagin”) submit that the September 6, 2005 evacuation order did not impact Mr. Zeitoun because Appellants allege, in the Original and First Amended Petitions, that he was arrested by Louisiana State Police and National Guard troops and prosecuted by the Office of the District Attorney. Accordingly, the City and Mayor Nagin maintain that there are no allegations that any officer, agent or employee of the City acted to deprive Mr. Zeitoun of any rights or harm him in any way. The City and Mayor Nagin note that Officer Donald Lima is not a party in Appellants’ Original or First Amended Petition.

Moreover, because Mr. Zeitoun was charged with looting and possession of stolen property, and not with violating the mandatory evacuation order, the City and Mayor Nagin argue that by his own admission, Mr. Zeitoun was not charged with violating La. R.S. 29:727.

| aThe State maintains that Appellants’ brief contests only the dismissal of the claims under 42 U.S.C. § 1981, but that no cause of action exists under § 1981. The State argues that to establish a cause of action under § 1981, a contractual relationship that was impaired by the intentional discrimination on the basis of race must be established, citing Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006). The State maintains that Appellants have shown no such relationship, but have only alleged that Mr. Zeitoun was the victim of discrimination.

Appellants assert that they are entitled leave to amend their petition and remove the grounds of the objections made by Appellees that ai’e the bases of the exceptions pursuant to La.Code Civ. Proc. art. 934. Specifically, Appellants maintain that in the Second Amended Petition, New Orleans Police Officer Donald Lima was added as a defendant. Appellants further allege that Burl Cain was the warden of the facility to which Mr. Zeitoun was assigned, and submit that pursuant to La.Code Civ. Proc. art. 934, the addition of Burl Cain as a defendant in the Second Amended Petition creates a cause of action against the State.

La. Code Civ. Proc. art. 934 provides as follows:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised | fithrough the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

We find that the trial court erred when it dismissed Appellants’ claims with prejudice. Rather, the trial court should have granted Appellants the opportunity to amend the petition. Because the trial court’s judgment is inconsistent with the mandates of La.Code Civ. Proc. art. 934, it must be reversed. We cannot say that as a matter of law, Appellants are unable to amend their petition to state a cause of action.

CONCLUSION

The trial court’s judgment granting the exceptions of no cause of action and dismissing Appellants’ claims with prejudice is hereby reversed. The matter is remanded to the trial court for proceedings consistent with La.Code Civ. Proc. art. 934 and this opinion.

REVERSED AND REMANDED.

      . The police report contained in the record reflects that Mr. Zeitoun was charged pursuant to La. R.S. 14:62.5 (looting) and La. R.S. 14:69 (illegal possession of stolen things).

      . The record evidences a signed order of release dated September 28, 2005; however, the confirmation sheet for Mr. Zeitoun’s release is dated September 29, 2005, and reflects an available pick-up time of 8:00 a.m.

      . Mr. Zeitoun alleges that although his green card, social security card and driver's license were returned to him, his wallet. Visa, Mast-ercard, Lowe's and Hope Depot cards were not returned to him upon release.

      . The order allowing leave to file the Second Amended Petition was signed by the trial judge on April 4, 2007.

      . The City and Mayor Nagin submit that also by his own admission, Mr. Zeitoun admits on the face of his petition that he was in direct and criminal violation of the mandatory evacuation order, for which he could have been arrested. See La. R.S. 29:727(G). Therefore, Appellees argue, even if Mr. Zeitoun had been arrested for violating the evacuation order, Mr. Zeitoun failed to allege a cause of action for false arrest, at least as far as probable cause.

      . Appellants’ original petition sued the State under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, and state law. The State submits that in Appellants' First Amended Petition, the claims against the State pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 were dismissed, but the claims under state law and §§ 1981 and 1982 were retained. The State maintains that Appellants do not address any claims under 42 U.S.C. § 1982 in their appellate brief.

      .Considering that tire Second Amended Petition was filed after the judgment dismissing all of Appellants’ claims, it cannot be properly considered.


author: JAMES F. McKAY III, Judge. LOVE, J.,

text:
    Rudolph FASCIO v. DEPARTMENT OF POLICE.
    No. 2008-CA-1127.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 1, 2009.

      Gary M. Pendergast, Gary M. Pender-gast, L.L.C., New Orleans, Louisiana, for Plaintiff/Appellant.
    Penya M. Moses-Fields, City Attorney of Orleans Parish, James B. Mullaly, Assistant City Attorney of Orleans Parish, New ■ Orleans, Louisiana, for - Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   JAMES F. McKAY III, Judge.

Lin this appeal, the plaintiff/appellant, Officer Rudolph Fascio, seeks review of a decision of the Civil Service Commission of the City of New Orleans upholding a thirty (30) day suspension imposed upon him by the New Orleans Police Department. We affirm the Commission’s finding that Officer Fascio should have been disciplined and suspended. However, we amend that judgment to reduce the amount of time for his suspension from thirty (30) days to twelve (12) days.

FACTS AND PROCEDURAL HISTORY

On August 27, 2005, due to the approach of Hurricane Katrina, Superintendent Eddie Compass placed the New Orleans Police Department in “Activation Status” in order to mobilize departmental personnel for emergency operations upon the hurricane’s making landfall. Pursuant to this status, all essential personnel were required to report to duty and remain on duty until |2relieved. It was made clear that only the Superintendent himself could grant furlough to an officer who sought to be relieved of duty after the storm.

Officer Fascio was assigned to the K-9 Unit and reported for duty on Sunday, August 28, 2005 at 6:00 p.m. He and certain other members of the K-9 Unit were able to secure rooms at the Garden Hilton on Gravier Street. At some point, Officer Fascio viewed a CNN news broadcast which showed his daughter’s home in Sli-dell, Louisiana. The home appeared to be greatly damaged and the surrounding area devastated. Officer Fascio became concerned that his daughter may not have evacuated and he decided to check and make sure that she had. On August 31, 2005, Officer Fascio notified his direct supervisor, Sergeant Ricky Blanchard, of his intentions and then made his way to Slidell in his personal vehicle along with his canine. After determining that his daughter had in fact evacuated, Officer Fascio went to his own home in Slidell in order to obtain some additional weapons and ammunition for his unit. He then made his way back to New Orleans and rejoined his unit approximately twelve to thirteen hours from the time he had initially left.

On December 5, 2005, Officer Fascio received a disciplinary letter wherein he was charged with one count of neglect of duty and given a thirty (30) day suspension. Officer Fascio timely filed an appeal with the Civil Service Commission and the matter was assigned to a hearing examiner pursuant to Article | :iX, Section 12 of the Constitution of the State of Louisiana of 1974. The hearing was held on March 29, 2006 and the Civil Service Commission denied Officer Fascio’s appeal on July 31, 2008. It is from this decision that Officer Fascio now seeks relief.

DISCUSSION

On appeal, the appellant raises the following assignments of error: 1) the Civil Service Commission committed manifest error in dismissing the appellant’s appeal since under the conditions created by Hurricane Katrina, no discipline was warranted in this case; and 2) the Civil Service Commission committed manifest error in denying the appellant’s appeal under circumstances where the discipline by the appointing authority was excessive.

In a civil service matter, the appellate courts have constitutional authority to review both facts and law. La. Const. Art. X § 12. The standard of review is whether the decision by the Commission is arbitrary, capricious or characterized by an abuse of discretion. Alongi v. Dept. of Police, 452 So.2d 798 (La.App. 4 Cir.1984). A reviewing court should not reverse a commission conclusion as to the existence or absence of cause for dismissal unless the decision is arbitrary, capricious or an abuse of the commission’s discretion. Jones v. Louisiana Department of Highways, 259 La. 329, 250 So.2d 356 (1971); Konen v. New Orleans Police Department, 226 La. 739, 77 So.2d 24 (1954).

14In the instant case, Officer Fascio left his post for twelve to thirteen hours after Hurricane Katrina on August 31, 2005. Officer Fascio was aware that only the Superintendent himself could grant furlough to an officer who sought to be relieved of duty after the storm, but he left anyway. Although Officer Fascio’s actions were understandable, that does not change the fact that he violated the rule laid down by the Superintendent. The purpose of this rule was to centralize control of the police force under the Superintendent and avoid chaos in organizing and administering rescue efforts following the hurricane. See McElrath v. Department of Police, 2006-1288, pp. 3-4 (La.App. 4 Cir. 5/23/07), 959 So.2d 566, 568. Accordingly, Officer Fascio should have been disciplined.

However, the Commission’s upholding of the thirty (30) day suspension appears to be arbitrary when we consider that the Commission did not enforce this penalty uniformly across the board. See Deshotel v. Department of Police, 2007-0363 (La.App. 4 Cir. 10/24/07), 970 So.2d 1106. In that case, this Court affirmed a decision of the Civil Service Commission which threw out a forty-five (45) day suspension for a police officer who left after Hurricane Katrina in order to obtain heart medicine for his elderly mother. Id. In the instant case, Officer Fascio was gone twelve to thMeen hours, yet he received the same punishment as someone who left and abandoned their duties for a week. To allow a mechanical punishment scale, utterly fails to take into account the actions of the officers, any mitigating circumstances, and how the actions of those officers may have impaired the public service. Furthermore, when we consider that the Commission actually | .-rescinded the suspensions of some officers, the Commission’s upholding of Officer Fascio’s thirty (30) day suspension was arbitrary.

CONCLUSION

While we agree with the appointing authority and the Civil Service Commission that Officer Fascio should have been disciplined, we find the thirty (30) day suspension to be arbitrary and excessive. Accordingly, we affirm Officer Fascio’s suspension but reduce the suspension from thirty (30) days to twelve (12) days.

AFFIRMED AS AMENDED.

LOVE, J., dissents and assigns reasons.

LOVE, J.,

dissents and assigns reasons.

|XI respectfully dissent with the majority’s amendment of the Civil Service Commission’s (hereinafter “the Commission”) decision.

The appointing authority must prove by a preponderance of the evidence that the complained-of conduct occurred and that the conduct impaired the efficient operation of the entity (legal cause). Barquet v. Department of Welfare, 620 So.2d 501, 505 (La.App. 4 Cir.1993). “In reviewing the Commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous.” Lombas v. Dept. of Police, 467 So.2d 1273, 1275 (La.App. 4 Cir.1985), quoting Walters v. Dept. of Police of the City of New Orleans, 454 So.2d 106, 114 (La.1984)). “In judging the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion.” Id. “Arbitrary or capricious” means that there is no rational basis for the action taken by the Commission. Bannister v. Dept. of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

The Superintendent of the New Orleans Police Department (hereinafter “NOPD”) devised a schedule to uniformly discipline officers who either left their [?posts or failed to report to duty during Hurricane Katrina and in the storm’s aftermath. Alfred Harris v. Dept. of Police, 07-1255, p. 5 (La.App. 4 Cir. 12/12/07), 974 So.2d 45, 48. In Harris, according to Officer Harris, the appointing authority testified that guidelines were established to punish officers based on time missed from duty. Id. An officer was suspended for thirty (30) days if they were absent from zero (0) to seven (7) days, and being absent from seven (7) to fourteen (14) days carried an increasingly larger suspension for each unauthorized day. Id. In Cure v. Dept. of Police, 07-0166, p. 3 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1093-1095, we held “[t]he use of a schedule during the difficult post Katrina times is understandable,” and whether punishment given according to the schedule constitutes an abuse of discretion depends on the facts of the case.

Officer Fascio testified that he remained on duty throughout the emergency caused by Hurricane Katrina with the exception of a 12-13 hour time period. During that time, Office Fascio testified that he notified his sergeant that he had to go and would return as soon as he could, and drove to Slidell, Louisiana to make sure his daughter evacuated from her flooded home. Officer Fascio drove to Slidell, confirmed that his daughter was not there, and returned to duty. The Commission found legal cause for his punishment and noted: “[w]hile we understand the Appellant’s conflict between his job and his family, we cannot accept the conflict as a justification for the choices that he made.”

The appointing authority is charged with departmental operations, and it is within his or her discretion to discipline an employee for sufficient cause. Whitaker v. New Orleans Police Dept., 03-0512, p. 5 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575 (citing Joseph v. Dept. of Health, 389 So.2d 739, 741 (La.App. 4 Cir.1980)). The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify, reduce, reverse or | .¡affirm a penalty; the authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. La. Const, art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The Commission is without authority to substitute its judgment for that of the Appointing Authority. Joseph, 389 So.2d at 741. Moreover, “[t]he [Sjuperintendent of police is charged with the operation of his department, and the Civil Service Commission is not his supervisor.” Branighan v. Department of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978). “The [Superintendent is the one who must run his department and exercise discretion in relation to disciplining his officers, and the Commission is not charged with exercising that discretion.” Id.

Unlike the majority, I do not find the Commission’s determination in Deshotel v. Dept. of Police, 07-0363 (La.App. 4 Cir. 10/24/07), 970 So.2d 1106, relevant to our determination of whether the Commission abused its discretion in affirming the punishment imposed upon Officer Fascio under the particular facts of the matter sub judice. Further, I do not think that this Court may supplant its own judgment for that of the appointing authority and exercise the discretion of disciplining officers by reducing the suspension to a number of days inconsistent with the NOPD’s guideline. While I may find that Officer Fas-cio’s decision to leave his post without authorization to determine the status of his daughter’s safety a mitigating factor, I do not find the Commission was manifestly erroneous or abused its discretion in not doing so. I would affirm the decision of the Commission.

      . The appointing authority, i.e., the New Orleans Police Department, established guidelines to discipline officers who left in the wake of Hurricane Katrina based upon time missed from duty. From any absence to seven (7) days carried a penalty of a thirty (30) day suspension. From seven (7) to fourteen (14) days carried an increasingly larger suspension time for each unauthorized day of absence. After fourteen (14) days, an officer was terminated. Supervisors who left their posts were given additional fifteen (15) day suspensions.


text:
    Duane BARBER v. Jacob RUSSELL and Safeway Insurance Company of Louisiana.
    No. 2008-CA-1366.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 1, 2009.

      William E. Mura, Jr., Warren A. For-stall, Jr., Christopher H. Sherwood, New Orleans, LA, for Plaintiff/Appellee.
    Charles V. Giordano, Michael E. Eseudier, Hebbler & Giordano, LLC, Metairie, LA, for Defendani/Appellant, Progressive Security Insurance Company.
    (Court composed of Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

| tThis case arises from a denial of a motion for summary judgment filed by Defendant-Appellant Progressive Security Insurance Company (“Progressive”). For the reasons that follow, we dismiss the appeal and remand to the trial court for further proceedings.

DISCUSSION

In this case, the question presented to this Court is whether or not the denial of a motion for summary judgment is an ap-pealable issue. Pursuant to La. Code Civ. Proe. art. 968 and Louisiana jurisprudence, the denial of Appellant’s motion for summary judgment is an interlocutory judgment and is therefore not appealable. La. Code Civ. Proc. art. 968 provides as follows (emphasis added):

Judgments on the pleadings, and summary judgments, are final judgments and shall be rendered and signed in the same manner and with the same effect as if a trial had been had upon evidence regularly adduced. If the judgment does not grant mover all of the relief prayed for, jurisdiction shall be retained in order to adjudicate on mover’s right to the relief not granted on motion.
An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.

12Moreover, this Court held in Clark v. Legion Ins. Co., 2002-2487, p. 6 (La.App. 4 Cir. 7/23/03) 853 So.2d 684, 687 that a denial of a motion for summary judgment is not an appealable judgment:

La. C.C.P. art. 968 could not be any clearer: an appeal does not lie from the court’s refusal to render summary judgment. Moreover, there is a substantial body of caselaw to the effect that the denial of a motion for summary judgment is an interlocutory judgment that is not susceptible to being certified by a trial court as final for purposes of immediate appeal under La. C.C.P. art.1915. See Belanger v. Gabriel Chemicals, Inc., 2000-0747 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, writ denied 802 So.2d 612(La.); S.S. v. State, 00-953 (La.App. 3 Cir. 9/20/00), 771 So.2d 187; Granger v. Guillory, 2000-363 (La.App. 3 Cir. 4/26/00), 762 So.2d 640; Davis v. Specialty Diving, Inc., 98-0458, 98-0459 (La.App. 1 Cir. 4/1/99), 740 So.2d 666; Brennan v. Shell Offshore, Inc., 93-1525 (La.App. 4 Cir. 3/29/94), 635 So.2d 429.

Clark, supra (emphasis added). This Court further noted that the issue of whether a judgment is appealable does not have to be raised by the parties. Clark, 853 So.2d at 688. In Clark, as in the case sub judice, an insurer appealed the trial court’s denial of its motion for summary judgment, which the trial court designated as final. The appeal was dismissed by this Court without prejudice. Id.

CONCLUSION

For the foregoing reasons, the appeal is hereby dismissed without prejudice and the matter is remanded to the trial court for further proceedings.

APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED.

      . We acknowledge that this Court recently converted a similar procedural issue to a writ and exercised its supervisory jurisdiction in Kurz v. Milano, 2008-1090 (La.App. 4 Cir. 2/18/09) 6 So.2d 916. In this case, we adhere to the mandates of La. C.C.P. art. 968 and Louisiana jurisprudence and dismiss the appeal.