author: TAYLOR, J.

text:
    Rajiv A. GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3563.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel F. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The defendant, Rajiv Gray, appeals his convictions for robbery with a firearm and resisting arrest without violence. Because the defendant’s post-trial motion for juror interviews alleged a prima facie case of premature jury deliberations, the trial court abused its discretion in denying the motion. We therefore reverse the trial court’s post-trial order denying the defendant’s motion for juror interviews and remand for further proceedings.

Within ten days of the jury verdict, the defendant filed a motion to interview jurors and for a new trial. According to the allegations of the motion, after the jury retired to deliberate, the alternate juror spoke to defense counsel as he was walking to the elevator. The alternate juror, who had been released, explained that several jurors felt “extremely” strongly that the defendant was guilty. One juror said the alternate juror, “[W]hat was the defendant doing walking with a gun at one o’clock in the morning?” The alternate juror mentioned that other jurors felt there was no physical evidence to convict and that several jurors had strong personalities. The alternate juror gave defense counsel her phone number to inform her of the verdict; defense counsel did not call her or have any further contact with her. The trial court denied the defendant’s motion as legally insufficient.

“A trial court’s decision on a motion to interview jurors is reviewed under an abuse of discretion standard.” Anderson v. State, 18 So.3d 501, 519 (Fla.2009).

Florida Rule of Criminal Procedure 8.575 provides that a party who has reason to believe that the verdict may be subject to legal challenge may move the court for an order permitting an interview of a juror or jurors. Upon “a finding that the verdict may be subject to challenge,” the trial judge “shall enter an order permitting the interview....” Fla. R.Crim. P. 8.575. Disparity from previous case law, Rule 3.575 does not require the filing of sworn affidavits in order to interview a juror. See Pozo v. State, 963 So.2d 831, 835 (Fla. 4th DCA 2007).

Juror interviews are not permitted relative to any matter that inheres in the verdict itself and relates to the jury’s deliberations. Reaves v. State, 826 So.2d 932, 943 (Fla.2002). “To this end, any jury inquiry is limited to allegations which involve an overt prejudicial act or external influence, such as a juror receiving prejudicial nonrecord evidence or an actual, express agreement between two or more jurors to disregard their juror oaths and instructions.” Id. (footnote omitted).

The First District has explained, however, that “[a] claim of premature deliberations may be asserted following an adverse jury verdict.” Williams v. State, 793 So.2d 1104, 1106 (Fla. 1st DCA 2001). This is because “[t]he timing of deliberations does not inhere in the verdict.” Id. (emphasis added). Accordingly, the issue of whether deliberations were undertaken prematurely “is an appropriate subject of judicial inquiry.” Id.

In Williams, the First District held that allegations that two jurors discussed the ease during trial and expressed an opinion as to guilt before the close of the evidence was sufficient to set forth a prima facie case of premature deliberations by two members of the jury. Id. at 1107-08. The court found this to be the case even though the affidavits did not allege that the jurors relied on outside information in coming to their opinion. Id. at 1107.

Similarly, in Ramirez v. State, 922 So.2d 386 (Fla. 1st DCA 2006), the First District followed its holding in Williams and held that the trial court should have allowed juror interviews following an allegation that an alternate juror told a bailiff that the jury was split as to the defendant’s guilt until after the jurors heard the defendant’s testimony. The court explained that “[djeciding a case before hearing all the evidence is antithetical to a fair trial.” Id. at 390.

By contrast, a lone juror’s attempt to discuss the defendant’s guilt prematurely is insufficient to warrant juror interviews. See Reaves, 826 So.2d at 943. In Reaves, the defendant sought juror interviews in a postconviction motion, alleging that one juror attempted to discuss guilt prematurely. Our supreme court found that this allegation was insufficient to warrant juror interviews:

In the instant case, Reaves has alleged that one juror attempted to discuss guilt prematurely. This contention does not involve any agreement among the other jurors to disregard their oaths and ignore the law, nor does it imply that the jury was influenced by external sources or improper material. Reaves’ assertion, which involves a lone juror’s understanding of the jury instructions, is “a matter which essentially inheres in the verdict itself’; hence, juror interviews are not permissible.

Id. (emphasis added).

Here, the trial court abused its discretion in denying the motion for juror interviews where the defendant’s allegations gave rise to a prima facie case of premature jury deliberations. The defendant’s allegations suggested that multiple jurors were improperly discussing the case during trial and were expressing opinions as to the defendant’s guilt before the close of the evidence. This was not merely an allegation of a lone juror attempting to discuss the case prematurely, as occurred in Reaves. Rather, the facts alleged in the defendant’s motion, if true, would constitute an agreement among multiple jurors to disregard their oaths and deliberate prematurely. We therefore follow the reasoning and result in Williams and Ramirez in reversing the trial court’s denial of the motion for juror interviews and remand for further proceedings.

On remand, after an opportunity for juror interviews, the defense will bear the initial burden either to show that prejudice resulted or that the premature deliberations or conversations were of such character as to raise a presumption of prejudice. Ramirez, 922 So.2d at 390. If the defense proves that deliberations or conversations took place among jurors about the case before the case was submitted, the burden will shift to the State to rebut the resulting presumption of prejudice. Id. If the trial court finds that premature deliberations took place, it must order a new trial, unless the State proves that the defendant was not prejudiced by the jurors’ misconduct. Id.

Reversed and Remanded for further proceedings consistent with this opinion.

HAZOURI and LEVINE, JJ., concur.

      . The defendant's motion also alleged as a separate ground that one juror failed to disclose that a circuit judge, who did not preside over the defendant's trial, was a client at the juror’s hair salon. As to this allegation of juror concealment, however, we conclude without further comment that the defendant failed to meet the three-part test of De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995).


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    James ARANGO, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2005.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2011.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow (withdrew after briefing); John E. Hendry, Regional Counsel, and Kimberly Nolen Hopkins, Special Assistant Regional Counsel, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

We affirm James Arango’s conviction and sentence for organized fraud. But, as conceded by the State, we must reverse the restitution awards that were entered after Arango filed his notice of appeal, which divested the trial court of jurisdiction. See, e.g., Renfroe v. State, 20 So.3d 1027 (Fla. 2d DCA 2009). On remand, the court may revisit the issue of restitution.

Affirmed in part, reversed in part, and remanded.

LaROSE and CRENSHAW, JJ„ Concur.


author: PER CURIAM.

text:
    Velislav V. MATZOV, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5243.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2011.
    J. Jervis Wise and Bjorn E. Brunvand of Bjorn E. Brunvand, P.A., Clearwater, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to Matzov’s right, if any, to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850.

NORTHCUTT, DAVIS, and BLACK, JJ., Concur.


author: DAVIS, Judge.

text:
    Michael S. DONOVAN, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 2D11-1094.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2011.

      Michael S. Donovan, pro se.
    Sarah J. Rumph, General Counsel, Tallahassee, for Respondent.
   DAVIS, Judge.

Michael S. Donovan seeks certiorari review of the circuit court order dismissing his petition for writ of habeas corpus in which he sought to challenge the order revoking his parole. The circuit court dismissed the habeas petition under the mistaken belief that Donovan should have filed a direct appeal of the order of revocation. A petition for writ of habeas corpus filed in the circuit court is the proper way to obtain review of an order revoking parole. Richardson v. Fla. Parole Comm’n, 924 So.2d 908, 910 (Fla. 1st DCA 2006) (“In lieu of a statutory right to an appeal, review of the [Parole] Commission’s orders remains available by petitions for habeas corpus or mandamus filed in the circuit court.”). Accordingly, in dismissing the petition, the circuit court departed from the essential requirements of law and deprived Donovan of the procedural due process to which he is entitled. See generally Sheley v. Fla. Parole Comm’n, 720 So.2d 216, 217-18 (Fla.1998). We therefore grant the petition for writ of certiorari and quash the order dismissing Donovan’s petition for writ of habeas corpus.

Granted.

LaROSE and CRENSHAW, JJ., Concur.


text:
    Daniel BLANCO, Appellant, v. BANK OF NEW YORK as successor in interest of JP Morgan Chase Bank, N.A., as Trustee on behalf of SAMI 2006-AR-3, Appellee.
    No. 4D11-761.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.
    Carol C. Asbury of Save My Home Law Group, Fort Lauderdale, for appellant.
    Nancy M. Wallace and Katherine E. Giddings of Akerman Senterfitt, Tallahassee, and William P. Heller of Akerman Senterfitt, Fort Lauderdale, for appellee.
   PER CURIAM.

We reverse the trial court’s order denying the defendant’s “Verified Motion to Quash Service By Publication, Vacate Default and Final Judgment,” because the plaintiff failed to make a diligent effort to personally serve the defendant before serving process by publication. See Miller v. Partin, 31 So.3d 224, 228 (Fla. 5th DCA 2010) (stating that “[t]he test to be applied is whether the plaintiff reasonably employed the knowledge at his or her command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the surrounding circumstances to acquire the information necessary to enable the plaintiff to effect personal service on the defendant

Reversed and Remanded.

STEVENSON, GROSS and TAYLOR, JJ., concur.


text:
    Patricia BECKFORD, Appellant, v. HSBC BANK USA, N.A. as Trustee for the Registered Holders of Ace Securities Corp. Home Equity Loan Trust, Series 2005-HE2, Asset Backed Pass-Though Certificates, Appellee.
    No. 4D10-4584.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.
    Brandon M. Tyson, Craig R. Lynd, and Matthew D. Valdes of Kaufman, Englett & Lynd, PLLC, Orlando, for appellant.
    Steven J. Clarfield of Clarfield & Okon, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Freemon v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204-05 (Fla. 4th DCA 2010).

WARNER, DAMOORGIAN and GERBER, JJ., concur.


author: JOHNSON, J.,

text:
    Vester JOHNSON v. Gloria Anderson JOHNSON.
    No. 2011-CP-1555.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   IN RE: Johnson, Vester; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Red River, 39th Judicial District Court Div. 0, No. 35,240; to the Court of Appeal, Second Circuit, No. 46,-584-CW.

| ,Writ application denied.

JOHNSON, J., concurs in the denial and assigns reasons.

GUIDRY, J., additionally concurs for the reasons assigned by Justice JOHNSON.

JOHNSON, J.,

concurs in the denial:

|,There is no indication plaintiff filed a rule to show cause with the trial court, as required by La. Civ.Code art. 102. For this reason, the court of appeal properly denied plaintiffs writ of mandamus requesting the court of appeal order the trial court to render a judgment on plaintiffs divorce petition.


text:
    In re Arthur GILMORE, Jr.
    No. 2011-B-1401.
    Supreme Court of Louisiana.
    Sept. 21, 2011.
   ORDER

| iConsidering the Motion to Dissolve Interim Suspension filed by the Office of Disciplinary Counsel,

IT IS ORDERED THAT pursuant to Supreme Court Rule XIX, § 19(D), this court’s order of July 19, 2011 interimly suspending respondent be and hereby is dissolved.

This order shall be effective immediately.

GUIDRY, J., would deny the Motion to Dissolve Interim Suspension.

/s/ Marcus R. Clark /s/ Justice, Supreme Court of Louisiana


text:
    In re Michael David LANE.
    No. 2006-OB-1822.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   ORDER

| Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Lane, 06-1822 (La.7/26/06), 934 So.2d 700, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

/s/ Marcus R. Clark /s/ Justice, Supreme Court of Louisiana


text:
    In re L. Paul HOOD, Jr.
    No. 2011-OB-1795.
    Supreme Court of Louisiana.
    Sept. 30, 2011.
   PER CURIAM.

_jjL. Paul Hood, a suspended lawyer who has not sought reinstatement, files this “Petition for Review of Adverse Decision of the MCLE Committee, MCLE Committee Chairman, and/or the MCLE Director and to Correct Status with the Louisiana State Bar Association.” Petitioner indicates he wishes to seek review of a decision of the Mandatory Continuing Legal Education Committee (“MCLE Committee”) which holds petitioner is ineligible to present a continuing legal education program in this state due to his status as a suspended lawyer. Petitioner also complains that the Louisiana State Bar Association has erroneously listed his status as “suspended” and argues he is entitled to “inactive status” because he has completed his suspension, although he has not been reinstated.

Supreme Court Rule XXX, Rule 6(g), as amended by this court on July 26, 2011, provides that if a lawyer is “affected adversely by a decision of the [MCLE] Committee,” he or she “may apply for review of the decision by filing a written petition, with supporting materials, to the Supreme Court of Louisiana, within thirty (30) days of such adverse decision.” Based on the correspondence from the MCLE Committee attached to the petition, it is apparent the MCLE Committee has not received any application for sponsor accreditation or course approval in this matter and has not made any formal decision in this matter. Accordingly, petitioner has not been affected adversely by a decision of the MCLE Committee, and any request for relief on this ground is premature.

1 ^Petitioner further seeks a declaration by this court that he is eligible to seek inactive status with the Louisiana State Bar Association. There is no basis for granting such relief. Although petitioner has served the suspension imposed by this court in 2009, respondent remains a suspended lawyer until such time as he applies for and is granted reinstatement to the practice of law. See Supreme Court Rule XIX, § 24.

Accordingly, it is ordered the petition be and hereby is denied.

WEIMER, J., recused.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Connie M. EASTERLY.
    No. 2011-OB-2062.
    Supreme Court of Louisiana.
    Oct. 6, 2011.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

| ,This proceeding arises out of an application for reinstatement filed by petitioner, Connie M. Easterly, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Easterly, 10-2765 (La.1/28/11), 52 So.3d 876, we suspended petitioner from the practice of law for one year and one day, retroactive to May 20, 2010, the date of her interim suspension, for driving while intoxicated. Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging she has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC concurred in petitioner’s reinstatement. After reviewing the matter, the disciplinary board’s adjudicative committee chair recommended that the petition for reinstatement be granted.

After considering the record in its entirety, we will adopt this recommendation and reinstate petitioner to the practice of law, subject to the condition that she must extend her current LAP contract for a period of five years and fully comply with the terms and conditions thereof. The ODC shall monitor 12petitioner’s compliance with her recovery agreement and notify this court of any violation, which may be grounds for immediately transferring petitioner to disability inactive status, or placing her on interim suspension, as appropriate.

DECREE

Upon review of the recommendation of the disciplinary board’s adjudicative committee chair, and considering the record, it is ordered that Connie M. Easterly, a/k/a Connie M. Eversberg, Louisiana Bar Roll number 26278, be immediately reinstated to the practice of law in Louisiana, subject to the conditions set forth herein. All costs of these proceedings are assessed against petitioner.

       Chief Justice Kimball not participating in the opinion.

      . Petitioner’s current LAP contract expires on August 17, 2015. The five-year extension that is a condition of petitioner’s reinstatement will subject her to monitoring by LAP until the latter part of 2016.


text:
    In re Ronald Patrick CAMP.
    No. 2011-B-1853.
    Supreme Court of Louisiana.
    Oct. 7, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_|_iThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent misused his client trust account by commingling personal funds with client funds. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Ronald Patrick Camp, Louisiana Bar Roll number 24331, be suspended from the practice of law for a period of six months, fully deferred, subject to a two-year period of unsupervised probation governed by the conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

       Chief Justice Kimball not participating in the opinion.


text:
    In re Dennis J. VIDRINE.
    No. 2011-B-1209.
    Supreme Court of Louisiana.
    Oct. 7, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| jThe Office of Disciplinary Counsel seeks review of an order of the disciplinary board imposing a public reprimand. Having reviewed the record and the briefs of the parties, we find no error in the disposition of the disciplinary board.

Accordingly, it is the judgment of this court that the order of the disciplinary board is affirmed.

JOHNSON, J., would grant and docket for oral argument.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Michelle Alt HAZLETT.
    No. 2011-B-1700.
    Supreme Court of Louisiana.
    Oct. 7, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| [The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to communicate with her client, neglected her client’s legal matter, and engaged in conduct prejudicial to the administration of justice. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Michelle Alt Hazlett, Louisiana Bar Roll number 24744, be suspended from the practice of law for a period of six months, fully deferred, subject to a one-year period of unsupervised probation governed by the conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

       Chief Justice Kimball not participating in the opinion.


text:
    In re Houston Michael AARON.
    No. 2011-B-1663.
    Supreme Court of Louisiana.
    Oct. 7, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected the legal matters of two clients and failed to communicate with the clients. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Houston Michael Aaron, Louisiana Bar Roll number 2262, be suspended from the practice of law for a period of six months, fully deferred, subject to a one-year period of unsupervised probation governed by the conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

       Chief Justice Kimball not participating in the opinion.


text:
    Otis ROBINSON, Jr., Reassie McDowell, Leona McDowell Donnell and the other heirs of Willie Mae Terrell Jeter v. Inez T. NUNLY, Administrator of the Succession of Joanna “Joe” Bias, Isaac Dwayne Morris and Annette Hausey Morris.
    No. 2011-C-1516.
    Supreme Court of Louisiana.
    Oct. 7, 2011.
   In re Nunly, Inez T.; Succession of Joanna “Joe” Bias; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Bienville, 2nd Judicial District Court Div. C, No. 38,781; to the Court of Appeal, Second Circuit, No. 46,053-CA.

Denied.


author: CLARENCE E. McMANUS, Judge.

text:
    COLONIAL FINANCE, LLC v. COLONIAL GOLF & COUNTRY CLUB, INC.
    No. 11-CA-5.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.
    Rehearing Denied Sept. 28, 2011.
    Randall A. Smith, Stephen M. Gelé, Melissa M. Desormeaux, Smith & Fawer, Attorneys at Law, New Orleans, LA, Stephen I. Dwyer, Edward T. Suffern, Jr., L. Marlene Quarles, Robert Knights, Dwyer, Cambre & Suffern, Attorneys at Law, Me-tairie, LA, for Plaintiff/Appellant.

      J.A. “Jay” Beatmann, Jr., Uddo, Beat-mann & Code, Attorney at Law, Jeannie Morris, Law Office of Jeannie Morris, Attorney at Law, Metairie, LA, for Defen-danVAppellee.
    Louisiana Bankers Association, David J. Boneno, General Counsel, Baton Rouge, LA, for Amicus Curiae in Support of Plaintiff/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

[¡¡Plaintiff, Colonial Finance, LLC, appeals from a decision of the trial court granting defendant’s Petition for Preliminary Injunction. We reverse the decision of the trial court.

This case involves the Colonial Golf and Country Club (the Club) in Harahan. The Club was founded in 1927 and consists of approximately 88 acres. On January 12, 2007, the Club executed a promissory note for the principal amount of $4,538,330.68 plus interest. The promissory note was secured by a mortgage on the property. In addition to the promissory note, the parties entered into a Loan Agreement and a Development Agreement for the construction of a high rise condominium on four acres of the property. When the development agreement became economically unfeasible, the development agreement was terminated, by letter to the Club on April 1, 2009. Under the terms of the promissory note, the outstanding principal balance and accrued interest was to be paid in full within nine months after termination of the Development Agreement. The Club failed to pay any of the indebtedness, and therefore was deemed in default on December 31, |42009. On January 22, 2010, Colonial Finance made amicable demand to the Club to no avail.

On May 3, 2010, Colonial Finance filed a Petition for Executory Process. Attached to the petition were the Promissory Note, the Mortgage, the letter indicating termination of the Development Agreement and the due date on the note, notice of default and amicable demand. The petition was verified by Louis Lauricella, Manager of Colonial Finance.

On September 17, 2010, Colonial Golf and Country Club filed a Petition for Preliminary and Permanent Injunction. The Club alleged that the Petition for Executo-ry Process lacked crucial authentic evidence because the Loan and Development Agreements were not attached . On October 25, 2010, the trial court granted a preliminary injunction, finding that the Loan and Development Agreements should have been attached to the Petition for Executory Process. After the denial of its Motion for New Trial, Colonial Finance appealed from the trial court’s ruling.

In this appeal, Colonial Finance alleges that the trial court erred in granting the preliminary injunction and in denying it a new trial on the grounds that the judgment was contrary to the law and evidence. Colonial Finance contends that the trial court erred as a matter of law in determining that a creditor must attach ancillary documents when filing for execu-tory process, and in finding that the Club met its burden of proving that the petition for executory process was defective. Finally, Colonial Finance requests that this Court conduct a de novo review, as the facts are undisputed and the trial court’s decision rested on a purely legal issue.

|sThe Club responds that the Loan and Development Agreements defined substantive terms of the mortgage and promissory note, and therefore were necessary to show the Colonial Finance’s right to use executory process. The Club further contends that the issuance of a preliminary injunction is within the sound discretion of the trial court and that the court did not abuse its discretion in this case.

The Louisiana Bankers Association filed an Amicus Curiae brief in support of plaintiff/appellant, Colonial Finance.

An executory proceeding in Louisiana is an in rem action derived from the civil law. It provides a simple, expeditious, and inexpensive procedure by which creditors may seize and sell property upon which they enjoy a mortgage and privilege. Deutsche Bank Nat. Trust Co. v. Carter, 10-663 (La.App. 5 Cir. 1/25/11), 59 So.3d 1282. Executory process is “used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment.” LSA-C.C.P. art. 2631. Ex-ecutory process is a “unique and harsh remedy requiring strict construction.” Mitchell v. Valteau, 09-1095 (La.App. 4 Cir. 1/27/10), 30 So.3d 1108.

A creditor seeking to enforce a mortgage or privilege on property by executory process must file a petition praying for the seizure and sale of the property affected by the mortgage or privilege. LSA-C.C.P. art. 2634. To prove his right to use executory process, a plaintiff-creditor must submit with his petition authentic evidence of three things: (1) the mortgage or privilege on the property sought to be seized and sold; (2) the amount of the indebtedness sought to be enforced; and (3) the plaintiff-creditor’s right to enforce the mortgage or privilege 18under the executo-ry process. La. C.C.P. Art. 2637, (Comment (a)). Mitchell v. Valteau, supra.

LSA-C.C.P. art. 2635 provides that

A. In order for a plaintiff to prove his right to use executory process to enforce the mortgage, security agreement, or privilege, it is necessary only for the plaintiff to submit with his petition authentic evidence of:

(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage, security agreement, or privilege.

(2) The authentic act of mortgage or privilege on immovable property importing a confession of judgment.

(3) The act of mortgage or privilege on movable, property importing a confession of judgment whether by authentic act or by private signature duly acknowledged.

B. This requirement of authentic evidence is necessary only in those cases, and to the extent, provided by law. A variance between the recitals of the note and of the mortgage or security agreement regarding the obligation to pay attorney’s fees shall not preclude the use of executory process.

Here, attached to the petition for executory process filed May 3, 2010 is the promissory note, the mortgage and act of amendment of mortgage, the letter of acceleration of the mortgage explaining that the note becomes due on December 31, 2009, the letter of default/amicable demand dated January 22, 2010, and the affidavit of verification signed by Louis Lauricella, Manager of Colonial Finance, along with the Judicial Sale Certificate Request Form. The promissory note, letter of acceleration, letter of amicable demand and the petition all verify the amount of the indebtedness. Furthermore, Section 5.12 of the mortgage provides for the use of executory process in the event of default.

The Club argues that the Loan and Development Agreements are needed to show the right to use executory process. We disagree.

17The existence of the debt due is established by the promissory note and mortgage agreements. In Tri-South Mortg. Investors v. New Communities, Inc., 353 So.2d 292 (La.App. 1 Cir.1977), citing Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450 (La.App. 1 Cir.1976), the court said that

For the purpose of executory process, the collateral mortgage note is the instrument evidencing the obligation secured by the mortgage, and thus it is not necessary to present the hand note with the petition. In like manner, neither is it necessary to present the loan agreement.

Furthermore, the mortgage note itself provides for the use of executory process in the event of default. The Louis Lauri-cella sworn affidavit, which attests that the debt was due on December 31, 2009 and that the Club had not satisfied its obligation, was sufficient proof of the default as required by LSA-R.S. 9:5555, which states the affidavit may be based on personal knowledge or upon information and belief derived from the records kept in the ordinary course of business of the mortgagee . Mortgage Elec. Registration Systems, Inc. v. Daigle, 08-1203 (La.App. 5 Cir. 3/24/09), 10 So.3d 288, writ denied, 09-0826 (La.5/29/09) 9 So.3d 167.

The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court, although that discretion is reviewable if erroneously 18exercised. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979). In this case, Colonial Finance included all necessary elements in its Petition for Executory Process and therefore the trial court abused its discretion in finding that Colonial Finance was required to produce additional documentation in order to avail itself of executory process.

We reverse the judgment of the trial court and remand this matter for further proceedings.

REVERSED AND REMANDED

      . In its opposition to the Petition for Preliminary Injunction, Colonial Finance did attach copies of the Development and the Loan Agreement. Colonial Finance states that these were attached to rebut allegations in the Petition for Preliminary and Permanent Injunction, and not to cure any alleged defect in the Petition for Executory Process.

      . The Club contends that LSA-C.C.P. art. 2635(1) mandates that Colonial Finance must produce both the note and the other evidence, in this case the Loan Agreement. However, the use of the term “or” in the codal provision indicates a requirement for the note or for an "other instrument,” possibly should the note not be available. It does not require an "other instrument” if the promissory note is provided.

      . LSA-R.S. 9:5555 provides that
      A.In accordance with Code of Civil Procedure Article 2636(8), there is no requirement that a note or other written obligation secured by a mortgage be paraphed for identification with the mortgage in order for the mortgagee to have the right to foreclose under the mortgage utilizing Louisiana executory process procedures. For purposes of executory process, the existence, amount, terms, and maturity of the note or other written obligation not evidenced by an instrument paraphed for identification with the act of mortgage or privilege may be proved by affidavit or verified petition.
      B. The affidavit or verified petition may be based upon personal knowledge or upon information and belief derived from the records kept in the ordinary course of business of the mortgagee, the creditor whose claim is secured by the privilege, or any other person. The affidavit or verified petition need not particularize or specifically identity the records or date upon which such knowledge, information or belief is based.
      C. The affidavit shall be deemed to provide authentic evidence of the existence, amount, terms, and maturity of the obligation for executory process purposes.
      In brief to this Court, the Club contends that LSA-R.S. 9:5555 is inapplicable because it applies only to collateral mortgages. The Club provides no citation for this proposition. In its amicus brief, the Louisiana Bankers Association takes issue with this contention, and suggests that the verification affidavit submitted in accordance with LSA-R.S. 9:5555 is proper and sufficient. We agree with Colonial Finance and Amicus, and reject the Club's contention that LSA-R.S. 9:5555 is inapplicable.


author: ROLAND L. BELSOME, Judge.

text:
    Sheila HURST, Wife of/and Randall E. Hurst v. HILTON HOTELS CORPORATION, Fred W. Sawyers, Paul Buckley and Kevyn Lewis.
    No. 2010-CA-1088.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 15, 2011.
    Derek D. Gambino, Benjamin J. Bird-sail, Jr., Birdsall Law Firm, Inc., New Orleans, LA, for Plaintiffs/Appellants.
    G. Bruce Parkerson, Glenn S. New-bauer, Plauché Maselli Parkerson LLC, New Orleans, LA, for Defendants/Appel-lees.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

_JjPlaintiffs-Appellants appeal the trial court’s grant of Defendants-Appellees motion for summary judgment. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiffs-Appellants, Randall Hurst and his wife, Sheila Hurst, alleged that on February 22, 2005, while guests at the Hilton New Orleans Riverside Hotel (“Hilton”), they attempted to exit an elevator on the sixteenth floor when it malfunctioned and pinned them between the doors. Appellants asserted that they sustained multiple injuries as a result of the incident. Appellants filed suit against Defendants-Ap-pellees on February 6, 2006. Appellants’ claims included allegations that Appellees were negligent in failing to maintain the elevator in a safe condition; that the elevator presented an unreasonable risk of harm; that Appellees negligently activated the fire panel, which caused the elevators to stop ^immediately and the doors to slam shut; that Appellees failed to warn of a dangerous condition; and that Appellees failed to exercise due care. Appellants also alleged that Appellees were negligent in allowing guests to use an elevator which had a disconnected smoke detector.

On October 12, 2009, Appellees re-urged a motion for summary judgment that had previously been filed on May 27, 2009, asserting that Appellants failed to come forward with evidence demonstrating a defect in elevator numbers four or five which presented an unreasonable risk of the doors pinning exiting passengers between the closing doors about which any of the Appellees knew or should have known. Appellees submitted affidavits from Roger Lawson, the Assistant Director of Hotel Property Operations, engineering department; Kevyn Lewis, the hotel security officer; Frederick W. Sawyers, III, the hotel manager; and Paul Buckley, the former hotel resident manager. In the opposition, Appellants submitted an affidavit from their expert engineer, Dr. Jack W. Sparks, who attested that Hilton elevator numbers four and five were defective in multiple aspects.

On November 20, 2009, the trial court granted Appellees’ motion for summary judgment. This appeal followed.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. independent Fire Insurance Company v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230.

DISCUSSION

Appellants set forth four assignments of error, all of which essentially assert that the trial court erred in finding that no genuine issues of material fact existed and in granting Appellees’ motion for summary judgment.

Appellees submit that pursuant to La. C.C. art. 2317.1, a cause of action in either negligence or strict liability against a premises owner must prove 1) that the defendant knew or should have known of the alleged defect; 2) that the damage could have been prevented by the exercise of reasonable care; and 3) that the defendant failed to exercise such reasonable care. Appellees argue that no actual notice of any alleged defect was proved, nor was there evidence presented which demonstrated constructive notice of any alleged defect, because Appellants did not establish that the alleged condition of the elevator doors pinning exiting passengers existed for a sufficient length of time such that it would have been discovered by the exercise of reasonable care.

In support of the assertion that no notice was established, Appellees reference a December 2004 report generated by Lerch Bates and Associates, Inc., the company that performs the hotel’s annual elevator system audit and inspection. Appellees emphasize that the inspection revealed no condition that would cause the doors of elevator number four or five to suddenly close and pin an individual between the doors. This inspection, as well as the inspection of the hotel’s fire alarm system (the inspection was conducted by Pratt Landry Associates, Inc., who |4performed the preventive maintenance and service of the hotel’s alarm system), were both coordinated through the hotel’s Property Operations Department. The Property Operations Department maintained records and reports from Lerch Bates, Pratt Landry, and other contractors. In addition to the hotel’s Property Operations Department, Lerch Bates also provided a copy of its report from the December 14, 2004 inspection to Schindler Elevator Corporation, the company that performed preventive maintenance, adjustment, repair and service of the hotel elevators, 67 days prior to the alleged incident.

Appellees further submit that the Property Operations Department had no record of an incident on February 22, 2005, or any time during the previous year involving an activation of the fire alarm system and/or the passenger elevators not functioning as manufactured, as evidenced by the affidavit of Roger Lawson, who served as the Assistant Director of Property Operations at the Hilton continuously for twelve years. Furthermore, Appellees emphasize that Fred Sawyers, Paul Buckley, and Kevyn Lewis attested in their affidavits that they never received any report or information about the function of the audible alarm, the door closing speed, or the door stall pressure of either elevators number four or five, other than the Lerch Bates report.

| sSimilarly, Roger Lawson attested in his affidavit that he was aware of the December 13-14, 2004 Lerch Bates inspection, and that on December 17, 2004, Lerch Bates provided a copy of its inspection, audit report, performance criteria, and immediate action items to Schindler Elevator Corporation. Mr. Lawson further attested that Schindler promised to immediately correct any deficiencies, as evidenced by email correspondence, attached as an exhibit to the affidavit. Other than the Lerch Bates December 2004 report, Mr. Lawson attested that, based upon his review of Property Operations Department records and his personal knowledge, the Property Operations Department did not receive any report or information regarding the function of the audible alarm, the door closing speed or the door stall pressure of either of passenger elevators numbers four and five.

Appellees also assert that nothing in the Lerch Bates report regarding the function of the audible alarm, door closing speed, or door stall pressure is indicative of a risk of elevator doors pinning guests who are attempting to exit the elevators. Furthermore, between December 17, 2004 and February 22, 2005, Appellees insist that the audible alarm, the door closing speed, and the door stall pressure of elevator numbers both four and five appeared to be operating properly.

Appellants argue that the information contained in the affidavit from their expert, Dr. Jack W. Sparks, was sufficient to overcome summary judgment. Dr. Sparks attested in his affidavit that he reviewed the depositions of Sheila Hurst and Randall Hurst; Appellees’ Answers to Interrogatories; Appellees’ responses to Appellants’ Requests for Production; Supplemental Answers to Interrogatories from Appellees; and the affidavits from Roger Lawson, Frederick Sawyers, Kevyn 1 fiLewis, and Paul Buckley. Dr. Sparks attested with regard to his opinion that, based upon information contained within the Lerch Bates report, elevators four and five were defective in multiple aspects, and that Appellants’ injuries were a reasonably foreseeable consequence of these defects:

That the complete December 14, 2004, report of Learch [sic] Bates (i.e., Hilton numbers 0295 — 0432) clearly demonstrates/indicates that the subject elevators (i.e., Hilton elevators Numbers 4 and 5) were defective in multiple aspects.
That the aforementioned defects are expected to manifest themselves intermittently, in various ways, such that said defects will not manifest themselves on a continual basis and/or in the same way. That, based on all scientific probability as well as the documents referenced above, the elevator event, as described by Randall and Sheila Hurst in their aforementioned depositions, (i.e., the forceful closing of the elevator doors and/or the accident/incident complained of as causing injuries to Randall and Sheila Hurst in the above identified lawsuit) is a natural and reasonably foreseeable consequence of the defects referenced above.
Furthermore, based upon all scientific probability, the said defects are of such nature as to constitute a dangerous condition, as described above, which is reasonably expected to cause injury to a prudent person using ordinary care under the circumstances.

Dr. Sparks further attested that “no actions were taken” by Hilton, Schindler, Lerch Bates or Pratt Landry to correct the alleged defects prior to the alleged February 22, 2005 incident. Dr. Sparks further attested that the affidavits of Mr. Lawson, Mr. Sayers, Mr. Lewis, and Mr. Buckley attesting to observations of elevators four and five to be working properly “is not an indication that said elevators were not defective at the time those affi-ants purportedly observed same, in accord with the foregoing.”

| ^Accordingly, Appellants demonstrated a genuine issue of material fact, as Dr. Sparks’ affidavit contradicts the information contained in the affidavits of Mr. Lawson, Mr. Sayers, Mr. Lewis, and Mr. Buckley with regard to whether elevator number four or five was functioning normally at the time of the alleged incident. Additionally, although Mr. Sparks’ affidavit does not indicate which specific findings in the Lerch Bates report established a defect of elevator number four or five, we find that Appellants’ expert affidavit, at a minimum, established a genuine issue of material fact with regard to whether Defendants-Appellees knew or should have known of an alleged elevator defect which could have caused the elevators to malfunction in the manner asserted by Appellants. Accordingly, issues of material fact existed sufficient to overcome summary judgment under these particular facts and circumstances, and the trial court erred in granting same.

CONCLUSION

For the foregoing reasons, the trial court’s grant of summary judgment in favor of Defendants-Appellees is reversed, and the matter remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED

      . Appellants alleged in the original petition for damages that the incident occurred on February 27, 2005; however, the hotel incident report is dated February 22, 2005. Appellants reference February 22, 2005 as the date of the alleged incident in their appellate brief.

      . Appellants alleged that they exited the elevator side-by-side.

      . Appellants' injuries alleged in the petition for damages included multiple bruises and abrasions; internal injuries; strain and sprain of the neck and back area; severe headaches; herniated and bulged discs; left arm pain and dizziness.

      . Appellants' original petition for damages asserted claims against Hilton Hotels Corporation, Fred W. Sawyers, Paul Buckley, and Kevyn Lewis. Appellants thereafter amended the petition, adding as defendants International Rivercenter Lessee, L.L.C., Schindler Elevator Corporation, Lerch Bates, Inc., and Pratt Landry Associates, Inc., and ACE American Insurance Company.

      . The motion for summary judgment was filed on behalf of Hilton Hotels Corporation, Fred W. Sawyers, Paul Buckley, Kevyn Lewis, International Rivercenter Lessee, L.L.C., and ACE American Insurance Company ("Appel-lees”).

      . After a hearing on the original motion for summary judgment, the trial court denied the motion on July 21, 2009, without prejudice, allowing it to be re-urged in 60 days.

      . There are not written reasons for judgment or a transcript of the proceedings in the appellate record.

      . Roger Lawson attested in his affidavit that based upon Mrs. Hurst’s description in her deposition, Mrs. Hurst identified elevator number four or five as the elevator involved in the alleged incident. Appellants' brief and expert affidavit also reference elevators number four and five as the subject elevators.

      . Appellees submit that at least one elevator technician from Schindler was at the hotel every weekday during normal business hours, excluding holidays, and that Schindler also provided 24-hour service when necessary.

      . Fred Sawyers attested in his affidavit that he was the hotel manager during the time period of January 1, 2004 and February 22, 2005; that he received no report or information between December 17, 2004 and February 22, 2005 regarding a function or malfunction of an alarm; that Schindler coordinated the maintenance and service of the hotel elevators and records regarding same during the relevant time periods; that he did not receive any report or information of persons being struck or becoming stuck between the doors of passenger elevator number four or five; that he did not receive any report or information regarding the door closing speed or the door stall pressure of either passenger elevator number four or five; and that he received no report or information on February 22, 2005 or any time during the previous year of an activation of the fire alarm system in which the passenger elevators did not function as manufactured.

      . Paul Buckley’s affidavit is substantially similar to that of Fred Sawyers, except that Paul Buckley was the resident manager of the hotel at the time.

      . Kevyn Lewis’ affidavit is substantially similar to that of Fred Sawyers and Paul Buckley, except that Kevyn Lewis was the hotel's security guard at the time of the alleged incident.

      .The email correspondence, dated December 17, 2004, is from tom_snyder@us. schindler.com; Larry Imhoff is carbon copied on the message. The subject line reads "Re: Immediate Action Items — December 2004 Audit” and an indication that "[tjhese [immediate action] items will be addressed ASAP. Larry Imhoff was the hotel’s Director of the Property Operations Department at the time of the alleged incident.


text:
    Cory McKAIN v. DEPARTMENT OF POLICE.
    No. 2010-CA-1781.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 2011.

      Donovan A. Livaccari, Livaccari Villar-rubia Lemmon, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Victor L. Papai, Jr., Deputy City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, Marisa C. Escudero, Law Clerk, Nannette Jolivette Brown, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Defendant-Appellant, Cory McKain, appeals the judgment of the Civil Service Commission denying the appeal of his termination by the Appointing Authority for filing a false public record. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant-Appellant Cory McKain worked as an officer in the Special Operations Division, Tactical Unit, and had permanent status. On June 11, 2009, Investigators Michael Jurina and Gregory DeGruy of the Orleans Parish District Attorney’s office were assigned the extradition of Lee Osborn, a convicted felon from St. Louis, Missouri, who failed to register as a sexual offender. Officer McKain and his partner, Officer Charles Stamps, were assigned to assist in this extradition the following day. The officers’ assignment involved taking custody of Osborn at 715 South Broad Street, New Orleans, Louisiana (“Central Lockup”), and processing the necessary paperwork to have Osborn booked.

On June 12, 2009, Officer Stamps met the investigators from the District Attorney’s office in Central Lockup and took custody of Osborn while Appellant remained in the patrol car and filled out the New Orleans Police Department (“NOPD”) Incident Report. When filling out the report, Appellant omitted the ^critical fact that the District Attorney’s office had previously extradited and taken custody of Osborn, transported and released him to the NOPD. Instead, Appellant falsely reported that he and Officer Stamps, while on patrol, witnessed a suspicious person, ran a warrant check, and arrested Osborn at 1900 Tulane Avenue. Thus, the report erroneously credited Appellant and Officer Stamps for an arrest conducted in the field, rather than assisting the District Attorney’s office with the extradition of a convicted felon who was already in custody.

On July 20, 2009, the District Attorney’s Chief Investigator, Howard Robertson, made a formal complaint to the Public Integrity Bureau (“PIB”), asserting that an NOPD officer had possibly inaccurately documented a report with regard to an extradition made by members of his unit. The PIB commenced an investigation and subsequently issued a report with disciplinary recommendations on September 21, 2009. After a Disciplinary Hearing on March 31, 2010, Appellant was terminated by Deputy Superintendent Kirk M. Bouye-las, the Appointing Authority, for filing a false police report. Appellant was also disciplined for violations of professional conduct and performance of duty, and charged with a sustained violation of Rule IX of the Rules of the Civil Service Commission, relative to Maintaining Standards of Service.

A Letter of Reprimand from Warren J. Riley, Superintendent of Police, was issued to Appellant on April 1, 2010, notifying him of his dismissal from the NOPD for violating Rule 2: Moral Conduct, paragraph 1, Adherence to Law, to wit: Louisiana Revised Statute 14 Article 133 — Filing or maintaining false public records.

| oAfter hearings on June 3, 2010 and July 22, 2010, the Civil Service Commission sustained the Appointing Authority’s discipline and denied Appellant’s appeal of his termination on September 22, 2010.

STANDARD OF REVIEW

An appellate court is presented with a multifaceted review function with regard to Civil Service disciplinary cases. Bannister v. Dep’t of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647 (citing Walters v. Department of Police of the City of New Orleans, 454 So.2d 106 (La.1984)). When reviewing the Commission’s factual findings, an appellate court should apply the clearly wrong or manifestly erroneous standard of review. Id. Additionally, when “evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and 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. The Commission’s order is considered arbitrary or capricious if there is an absence of a rational basis for the action taken. Bannister, 95-0404, p. 8, 666 So.2d at 647 (citing Shields v. City of Shreveport, 579 So.2d 961 (La.1991); Bicknell v. United States, 422 F.2d 1055 (5th Cir.1970)).

DISCUSSION

Appellant first argues that the Civil Service Commission erred in finding that he violated La. R.S. 14:133 relative to preparing a false public record. ^Alternatively, Appellant urges that if this Court finds that he did file a false public record, this Court should conclude that any false statement contained in the police report was not a material fact for purposes of La. R.S. 14:133.

In support of this argument, Appellant references the recommendations made by Sergeant Omar M. Diaz of the PIB in the September 21, 2009 Formal Disciplinary Investigation report. In the report, Sgt. Diaz recommended that the Rule 2 violation with regard to La. R.S. 14:133 and filing or maintaining a false public record not be sustained against Appellant because the District Attorney’s office declined to pursue a criminal investigation. Appellant also relies upon Sgt. Diaz’s testimony from the June 3, 2010 hearing, at which time Sgt. Diaz confirmed that in the September 21, 2009 report, he did not recommend sustaining the violation of La. R.S. 14:133 because the District Attorney’s office declined to prosecute the matter. Additionally, Appellant references Sgt. Diaz’s recommendation in the September 21, 2009 report that Rule 4, an administrative violation, applied, as opposed to Rule 2, a criminal violation, because the officers failed to document the agency that extradited Osborn and the officers of that agency that released custody of Osborn to them:

|sThe PIB administration meticulously reviewed whether the named employees should be administratively held liable for violating Rule 2: Moral Conduct; Paragraph 1; Adherence to law, to wit: Louisiana Revised Statute 14 Article 133, Relative to Filing or maintaining false public records or Rule 4: Performance of Duty; Paragraph 4; Neglect of Duty, to wit: New Orleans Police Department Operations Manual Chapter 71.1, Prisoner Transportation. After deliberating, the PIB administration determined Rule 4: Performance of Duty; Paragraph 4; Neglect of Duty to wit: New Orleans Police Department Operations Manual Chapter 71.1, Prisoner Transportation was more specific in an administrative capacity than Rule 2: Moral Conduct; Paragraph 1; Adherence to law, to wit: Louisiana Revised Statute 14 Article 133, Relative to Filing or maintaining false public records.

In reviewing Appellant’s appeal of his termination, the Civil Service Commission acknowledged the Appointing Authority’s discipline of an eight-day suspension and termination for Appellant’s violation of internal rules regarding Adherence to Law “to wit: La. R.S. 14:133 relative to preparing a false public record (Police Report), and violating internal rules regarding Professionalism, and Neglect of Duty.” We do not find that the Commission erred in finding that Appellant violated La. R.S. 14:133 relative to filing a false public record, as a police report regarding the arrest of a person is a public record, and Appellant does not dispute that he intentionally falsified the police report. Title 44, which encompasses public records, contains a provision with respect to “records of prosecutive, investigative, and law enforcement agencies.” La. R.S. 44:3. Specifically, La. R.S. 44:3(A)(4)(a) provides, in pertinent part:

(4)(a) The records of the arrest of a person, other than the report of the officer or officers investigating a complaint, until a final judgment of conviction or the acceptance of a plea of guilty by a court of competent jurisdiction. However, the initial report of the officer or officers investigating a complaint, but not to apply to any followup or subsequent report or investigation, records of the booking of a person as provided in Louisiana Code of Criminal Procedure Article 228, | (¡records of the issuance of a summons or citation, and records of the filing of a bill of information shall be a public record.
(b) The initial report shall set forth:
(i) A narrative description of the alleged offense, including appropriate details thereof as determined by the law enforcement agency.
(ii) The name and identification of each person charged with or arrested for the alleged offense.
(iii) The time and date of the alleged offense.
(iv) The location of the alleged offense.
(v) The property involved.
(vi) The vehicles involved.
(vii) The names of investigating officers.

La. R.S. 44:3(A)(4)(a) (emphasis added).

Additionally, in the April 1, 2010 Letter of Reprimand issued to Appellant, Supt. Riley stated that he reviewed the entire administrative investigative report authored by Sgt. Diaz, as well as the recommendations made by Deputy Supt. Bouye-las during the March 31, 2010 Disciplinary Hearing. Supt. Riley acknowledged Deputy Supt. Bouyelas’ recommendation that the penalty of dismissal be imposed for the additional sustained violation of Rule 2, Moral Conduct violation, “to wit: Louisiana Revised Statute 14 Article 133 — Filing or maintaining false public records (Police Report).” Supt. Riley concluded as follows:

After a thorough and complete review of the entire investigative report, I find that your conduct ... constitutes a violation of Rule 2: Moral Conduct, paragraph 1, Adherence to Law to wit: Louisiana Revised Statute 14 Article 133 — Filing or maintaining false public records (Police Report), Rule 3: Professional Conduct, paragraph 1; Professionalism and Rule 4: Performance of Duty, paragraph 4; Neglect of Duty, to wit; Chapter 71.1 — Prisoner Transportation, paragraph 1, subparagraph b. [Emphasis added.]

Considering the foregoing, we do not find that the Commission erred in finding that Appellant violated La. R.S. 14:133. Furthermore, we disagree with 17AppeIlant’s argument that any misrepresentations in the police report were immaterial, as a false statement in a public record made with knowledge of its falsity constitutes a violation of La. R.S. 14:133. See La. R.S. 14:133(A)(3).

Next, Appellant argues that the Commission erred in finding that cause existed to support termination in this case, because the Appointing Authority did not prove by a preponderance of the evidence that he violated La. R.S. 14:133. Therefore, Appellant submits, even if this Court finds that Appellant filed a false police report, the false statements in the report were not prejudicial to the public service or detrimental to the efficient operation of public service, and cause for his termination did not exist. Additionally, Appellant notes that the false statements on the police report ultimately had no bearing on Lee Osborn’s arrest.

With regard to a finding of cause by the Appointing Authority and the Civil Service Commission, this Court has recognized that legal cause exists when an employee’s conduct impairs the efficient operation of public service. Whitaker v. New Orleans Police Dept., 2003-0512, p. 4 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575 (citing Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4th Cir.1990)). “A reviewing court should affirm the Civil Service Commission’s conclusion as to existence or cause for dismissal of a permanent status public employee when the decision is not arbitrary, capricious, or an abuse of the Commission’s discretion.” Whitaker, 2003-0512, p. 4, 863 So.2d at 575.

A review of the record evidences that Appellant’s false statements were found to be prejudicial and detrimental to the efficient operation of public service. Deputy Supt. Bouyelas rejected Sgt. Diaz’s recommendation that the Rule 2 Adherence to Law violation not be sustained, stating at the July 22, 2010 hearing that “[e]ven though the district attorney’s office- determined not to prosecute him, 18it’s still a violation of the law” because “[h]e falsified [the] police report.” The Commission subsequently affirmed the Appointing Authority’s rejection of the recommendation not to sustain the Rule 2 violation against Appellant. In its written reasons, the Commission quoted Superintendent Bouyelas’ testimony at the July 22, 2010 hearing, wherein he stated:

Police officers by the nature of the work have to provide truthful and accurate information in everything we do. If an officer is found to be not credible or untruthful, it will affect everything that we do as far as testimony in court, as far as judges considering arrest warrants or search warrants, knowing that the officer has been found to be untruthful as far as information that’s garnered and given to other police officers and investigators to further investigations.

We find that Superintendent Bouyelas’ testimony, together with the evidence contained in the record, supports the determination by the Appointing Authority and the Commission that Appellant’s false statements were in fact prejudicial to the public service and detrimental to the efficient operation of public service. Accordingly, we cannot say that the finding of cause was arbitrary, capricious, or an abuse of the Commission’s discretion in this case.

Additionally, for the reasons discussed previously herein, we further conclude that the Appointing Authority proved by a preponderance of the evidence that Appellant violated La. R.S. 14:133 and thus sufficiently established cause for the disciplinary action. Appellant testified on June 3, 2010 that the police report he authored contained false statements:

Q. So this is not a truthful report, correct?
A. Correct.

IflAppellant also confirmed that he intentionally falsified the police report, a public record, to receive credit for the arrest. With regard to the administrative statement that he provided to Sgt. Diaz in connection with the PIB investigation, Appellant testified:

Q. And in response to that very first questions [sic] where it says “Question: Did you lie on this report?” And what is your answer there, sir?
A. Yes, sir, I did.
Q. And then the next question is: “Okay. Why? Why did you lie on that report?”
A. I wanted to make sure that myself and my partner were credited with making the arrest on Mr. Osborn.
Q. So you were getting a benefit by misstating your position of where you found this individual?
A. Not a benefit, sir. I’m trying to make it seem like we were actually out on the street working.
Q. So you were mischaracterizing what you were really doing?
A. Yes, I stated that.

Lastly, Appellant argues that the discipline in this case was not commensurate with the dereliction, that the discipline imposed had no rational basis, and that the discipline was therefore arbitrary and capricious. Appellant asserts that suspension, rather than termination, was the appropriate discipline for the violations.

The Civil Service Commission is vested with the authority to hear and decide disciplinary cases and to modify, reverse, or affirm a penalty. La. Const, art. X, § 12; Bovia v. Dept. of Police, 2008-0710, p. 2 (La.App. 4 Cir. 1/7/09), 2 So.3d 1159, 1161. The Commission has a duty to make an independent determination as to whether the Appointing Authority had cause for taking | ^disciplinary action and, if so, whether the discipline imposed is commensurate with the dereliction. Walters, 454 So.2d at 113.

In reviewing the appeal, the Commission recognized Appellant’s “outstanding record with the SWAT team” and the fact that Appellant had not previously been disciplined for untruthfulness. The Commission concluded, however, that Appellant’s “poor judgment” was. a serious matter. In affirming the discipline imposed by the Appointing Authority, the Commission determined that it was not the Commission’s role “to question the policy of the Police Department of requiring the highest level of honesty and integrity of police officers in completing public records such as police reports.”

The Commission also referenced the testimony of Deputy Supt. Bouyelas, who stated that Appellant’s ability to continue his duty as a police officer was “severely jeopardized, if not [in] fact, fully compromised” by his violations and false statements on the police report. Upon a review of the record in its entirety, we do not find that the discipline in this case lacked a rational basis, nor do we find that the discipline imposed was arbitrary or capricious. Therefore, the Commission did not err in determining that the disciplinary action was commensurate with the offense under these particular facts and circumstances.

CONCLUSION

For the foregoing reasons, the judgment of the Civil Service Commission is affirmed.

AFFIRMED

      . Officer Stamps was unaware of the misstatements and did not participate in writing or reviewing the report.

      . The District Attorney’s office declined to initiate a criminal investigation or prosecution in the matter.

      . Appellant submits issues for review in his appellate brief; assignments of error are not specified.

      . La. R.S. 14:133 provides, in pertinent part:
      A. Filing false public records is the filing or depositing for record in any public office or with any public official, or the maintaining as required by law, regulation, or rule, with knowledge of its falsity, of any of the following:
      (1) Any forged document.
      (2) Any wrongfully altered document.
      (3) Any document containing a false statement or false representation of a material fact.
      B. The good faith inclusion of any item of cost on a Medical Assistance Program cost report which is later determined by audit to be non-reimbursable under state and federal regulations shall be an affirmative defense to a violation of this Section.
      C.Whoever commits the crime of filing false public records shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars, or both.
      La.Rev.Stat. Ann. § 14:133 (emphasis added).

      . Sgt. Diaz also recommended that the violations of Professional Conduct, Neglect of Duty, New Orleans Police Department Operations Manual, Chapter 71.1, Prisoner Transportation, and Rule IX of the Civil Service Rules for the City of New Orleans all be sustained against Appellant.

      . Sergeant Lajone Roberts, Sergeant Hans Ganthier, and Sergeant Sherman Joseph testified on Appellant's behalf at the June 3, 2010 proceedings.

      . Specifically, Sgt. Diaz concluded:
      What the officers failed to do was document the agency that extradited the prisoner and the officers of that agency that released custody of'the prisoner to the named employees. Therefore, Rule 4: Performance of Duty: Paragraph 4; Neglect of Duty, to wit: New Orleans Police Department Operations Manual Chapter: 71.1, Prisoner Transportation applied as oppose[d] to Rule 2: Moral Conduct; Paragraph 1; Adherence to law, to wit: Louisiana Revised Statute 14 Article 133, Relative to Filing or maintaining false public records.

      . Additionally, the "Comments” section of Appellant's Disciplinary Hearing Disposition provides that Appellant "falsified a police report” and "admitted to that fact”; such a violation is "viewed as a Cat 3 offense whereby the [police officer] has affected his ability to perform the duties of a police officer.”

      . The NOPD submits that cause and penalties related to the violations of professional conduct and performance of duty were stipulated to by Appellant’s counsel at the July 22, 2010 hearing.


author: SUSAN M. CHEHARDY, Judge. EDWARDS, C.J.,

text:
    Amy Strong MULLER v. Carl MULLER, Jr.
    No. 10-CA-540.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2011.

      Alfred Z. Butterworth, Attorney at Law, Hesse & Butterworth, for Plaintiff/Appellant, Amy Strong Muller.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, FREDERICKA H. WICKER, JUDE G. GRAVOIS, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

| gPlaintiff/appellant, Amy Strong Muller (“Mrs. Muller”), appeals a judgment of the district court denying her petition to have a premarital matrimonial agreement declared null and void ab initio. Mrs. Muller alleged in her petition that she and her then fiance’, Carl Muller Jr. (“Mr. Muller”), entered into the agreement on April 7, 1995 in St. John the Baptist Parish, and the agreement was duly recorded on that same day. The couple was married on the following day, April 8, 1995. The record indicates that the marriage broke down at some point, although their marital status at the time of the hearing indicates the couple was not yet divorced.

Mrs. Muller’s original petition indicated that the agreement was “executed before a notary”, but was not in authentic form or duly acknowledged by the parties, in accordance with La. C.C.-art. 2331. Specifically, she urged that although the agreement bore the signature of a notary, there were no witnesses to Rthe party’s signatures, and as a result the agreement should be set aside for lack of proper form. Mrs. Muller filed a Motion for Summary Judgment, which was converted to an ordinary proceeding, and the matter went to trial on the merits on November 19, 2009. Following the trial that took place in November 2009, the trial court orally granted judgment in favor of Mrs. Muller, but the judgment was not reduced to writing.

Although the date is unclear from the record, at some point before the judgment was reduced to writing the trial court decided to reconsider its earlier ruling, granted a new trial on its own motion, and reheard the matter on January 13, 2010. Following that hearing, the trial court, in a judgment dated April 6, 2010, denied Mrs. Muller’s petition finding the agreement to be valid. Mrs. Muller appeals.

At the hearing in January 2010 that forms the basis of this appeal, Mr. Muller testified that he could not recall who presented whom with the actual premarital matrimonial agreement, that he did not recall if he or Mrs. Muller prepared it, whether he obtained the form from an attorney, or if he downloaded it from a computer. He remembered taking the document to a notary, but admitted that there were no witnesses present when he executed the document. He denied Mrs. Muller’s allegation that the agreement was signed by her at home prior to the time he brought it to the notary. He did not remember who had the agreement recorded. Mr. Muller could not recall whether or not he worked for several years following the marriage, although he did “cash jobs” sometimes “as long as I stayed under the federal limit.” He did not recall if he had gone back to work in 1997, or exactly where he worked from 1997 till the parties moved their matrimonial domicile to Mississippi in 1999.

|4Mrs. Muller testified that the primary reason for the premarital matrimonial agreement was Mr. Muller’s concern that her income would be used to calculate an increase in child support for Mr. Muller’s child from a previous marriage. Mrs. Muller testified that Mr. Muller downloaded the form from the computer in their home, and presented it to her for her signature the day before their planned nuptials. She testified that she believed he would not marry her if she did not sign it. She testified that there was no one present at their home when she signed the document and, after she executed the agreement, Mr. Muller took the document to a notary with whom he was familiar, who notarized it. However, no witnesses signed the agreement. She did not testify as to how the document came to be recorded. Mrs. Muller testified that, once they were married, Mr. Muller never mentioned the premarital matrimonial agreement again.

According to the testimony of both parties, while they did observe certain formalities of a separate property regime, such as separate bank accounts and separate tax returns, they both testified that they acquired several pieces of real estate during the marriage, and that none of the acts of sale referenced or mentioned the premarital matrimonial agreement. Mrs. Muller also testified that she utilized a substantial portion of her income, and a separate property inheritance from her uncle, to pay expenses on renovation and upkeep of their joint properties, and to pay loans and other obligations that directly benefited Mr. Muller.

Following the second trial in this matter, the trial court entered judgment with written reasons dated April 6, 2010. While the trial court determined that the agreement had not been signed before a notary or two witnesses, and, as such, the premarital agreement was invalid as an authentic act, the trial court found that the agreement was valid as an act under private signature, duly acknowledged. The court reasoned that, the act was duly acknowledged because, in open court, Mrs. [sMuller twice admitted the signature as her own before numerous witnesses. The trial court went on to state that Ritz v. Ritz, a case from this Court,

arbitrarily assumes that because all elements of an authentic act must be met before the marriage, then the same must be applied to all elements of an act under private signature duly acknowledged .... Pertinent statutory law is devoid of any reference to such requirement. ... The 5th Circuit in Ritz combined two ideas that should not be combined and created a requirement that simply does not exist. (Emphasis in original).

The trial court further held, “The agreement benefitted both parties and was executed prior to the marriage. Therefore, the policy concern that necessitates court approval for agreements made during the marriage does not apply in this case.”

La. C.C. art. 2331 states, “A matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.” La. C.C. art. 2329 states, in pertinent part,

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

In the case before us, the trial court incorrectly concludes, as a matter of law, that La. C.C. art. 2329 is inapplicable to this matter. The dictates of La. C.C. art. 2329 are not mere policy concerns, but a mandate made part of a statutory enactment that casts a suspicious eye on the establishment of a separation of property regime effected during the marriage. The codal requirement that any party entering into an agreement that modifies or terminates the matrimonial regime after marriage must do so by joint petition and a finding by a court that the | ¡¡modification is in the best interest of both parties, is without exception. The factual circumstances of this or any other case cannot act to vitiate its requirements. See Lauga v. Lauga, 537 So.2d 758 (La.App. 4th Cir.1989).

In Ritz v. Ritz, supra, this Court was faced with a factual situation similar to the matter now before us. Mr. and Mrs. Ritz entered into a premarital matrimonial contract that evidence showed failed as an authentic act. In considering whether or not the document sufficed as an act under private signature, we stated in Ritz:

Mr. Ritz avers that because Mrs. Ritz admitted in court, as well as in her deposition, that she signed the document, the contract has been duly acknowledged and thus qualifies as an act under private signature. However, there is nothing in the record to indicate that any acknowledgment took place prior to or even during the marriage. We note that La. C.C. art. 2331, supra, has made acknowledgment a requisite to the validity of a matrimonial contract under private signature. Except for the exception stated in [La. C.C.] art. 2329, supra, just as all requirements of a premarital authentic act must be met prior to the marriage, so too, must all elements of an act under private signature duly acknowledged be done prior, or antecedent, to the marriage.

Ritz, supra at 1185 (Emphasis in original).

We find that the trial court’s abrogation of the Ritz case was in error. The case before us presents no single fact that deviates from Ritz, and its premise remains sound. Both Mr. and Mrs. Muller testified that the document in question was executed prior to their marriage. Yet, even the trial court found that Mrs. Muller’s signature was not properly witnessed by the notary and, as such, the document is not in authentic form. Further, the record does not indicate that Mr. or Mrs. Muller duly acknowledged the matrimonial agreement before the marriage.

The issue is whether a party can duly acknowledge a signature on a premarital matrimonial agreement after the marriage. Here, Mrs. Muller did admit that her signature was on the premarital matrimonial document. However, as in Ritz, we note that “all elements of an act under private signature duly 17acknowledged be done prior, or antecedent, to the marriage.” Id. We hold that a post-nuptial acknowledgement cannot vitiate the mandate of La. C.C. art. 2329 that any matrimonial agreement entered into during the marriage to modify or terminate a matrimonial regime must be by joint petition, and after a finding by the court that the agreement serves the best interests of the parties. For these reasons, the ruling of the trial court is reversed, and the premarital matrimonial agreement between these parties is declared to be null and void ab initio. Costs of these proceedings are assessed against the appellee, Mr. Muller.

REVERSED

EDWARDS, J., dissents.

McMANUS, J., dissents for the reasons assigned by Judge EDWARDS, C.J.

CRAIN, J., P.T., dissents for the reasons assigned by Judge EDWARDS, C.J.

EDWARDS, C.J.,

dissents.

|,I dissent from the majority opinion reversing the judgment in the present ease. In my opinion, insofar as it determined that acknowledgement of a matrimonial agreement executed before the marriage must also be acknowledged as an act under private signature prior to the marriage, Ritz v. Ritz was incorrect. La. C.C. art. 2331 does not specify the time period in which an act under private signature must be acknowledged. In addition, La. C.C. art. 1836, in pertinent part, states:

An act under private signature is regarded prima facie as the true and genuine act of a party executing it when his signature has been acknowledged, and the act shall be admitted in evidence without further proof.
An act under private signature may be acknowledged by a party to that act by recognizing the signature as his own before a court, or before a notary public, or other officer authorized to perform that function, in the presence of two witnesses. An act under private signature may be acknowledged also in any other manner authorized by law.

There is nothing in either Louisiana Civil Code Article 2331 or Civil Code Article 1836 requiring that authentication must occur within a certain time, or before the marriage. La. C.C. art. 2331 does not specify the time period in which an act under private signature must be acknowledged. The general rules of authentication of private acts, La. C.C. arts. 1836 et seq., do not provide any express time period for acknowledgment. Our ruling in Ritz provided neither statutory nor jurisprudential authority for a determination that acknowledgment of a matrimonial agreement executed before the marriage must be acknowledged as |gan act under private signature prior to the marriage. Indeed, there is no such authority. Rather, the policy behind the requirement of acknowledgment of an act under private signature is, rather than cautionary (as with an authentic act), simply an evidentia-ry one, adding to the reliability of the written agreement as to what was actually-executed by the parties.

For these reasons, I respectfully dissent, and would have reversed Ritz v. Ritz en banc, affirming the judgment of the trial court.

      . See, La. C.C.P. art. 1971.

      . 95-683 (La.App. 5 Cir. 12/13/1995), 666 So.2d 1181, writ denied, 96-131 (La.3/8/1996), 669 So.2d 395.

      . See, 16 La. Civ. L. Treatise Matrimonial Regimes § 8.7 (3 Ed.).


author: WILLIAMS, J.

text:
    STATE of Louisiana in the Interest of J.W., B.W. and A.W.
    No. 46,526-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    June 29, 2011.

      Randall R. Robinson, Public Defender’s Office, Bossier City, LA, for Appellant, Joy Athena Wilson.
    Michael Nerren, Assistant District Attorney, for Appellee, State of Louisiana.
    Pamela H. Jacob, for Appellee, State of Louisiana, Department of Children and Family Services.
    William A. Haynes, for Appellee, Charles G. Ragans.
    Matthew Burroughs, for Appellee, J.W.
    Ross E. Shacklette, Bossier City, LA, for Appellee, B.W.
    Adrienne Mouton-Henderson, for Ap-pellee, A.W.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   WILLIAMS, J.

|, Joy Wilson appeals a judgment terminating her parental rights to the minor children, J.W., B.W. and A.W. For the following reasons, we affirm.

FACTS

On January 23, 2009, the Department of Children and Family Services (“the Department”) received a report that the minor child, B.W., had run to the home of his maternal grandmother with a bloody nose after being slapped by his mother, Joy Wilson. The mother and grandmother became involved in a physical altercation and the police were called. Wilson was arrested and the Department was called to investigate. The Department was familiar with Wilson, who had been previously arrested for physical abuse of her children. The most recent incident had occurred just one week earlier. A child protection worker, Maisha Carter, interviewed the minor children, who stated that their parents had been fighting and drinking. The children said that when B.W. began crying and did not stop, Wilson slapped him in the face, causing his nose to bleed. Carter also interviewed Wilson, who denied hitting the child. Wilson said the child’s nose was injured after he ran into the door when leaving the house.

Based on the physical injury to B.W. and the history of domestic violence in the family, the children were thought to be in substantial risk of harm. On January 23, 2009, at the Department’s request, the district court issued an oral instanter order to remove the children from the home and place them in the Department’s custody. The children were placed in foster care and adjudicated in Need of Care. The court approved a case plan with the goal of reunification for the family. However, in May 2010, the [ ^Department filed a petition to terminate the parental rights of Joy Wilson and Charles Ragans for their failure to fully comply with the case plan.

The hearing on termination of parental rights was held in November 2010. After hearing the evidence, the trial court issued oral reasons for judgment. The court noted that the children had been in foster care almost two years while their parents were participating in the case plan. The court found that although Wilson had completed the case plan to some degree, the conditions which led to the removal of the children continued to exist, that the parents had not made any substantial improvement in solving the actual problems preventing reunification, including alcohol abuse and physical violence, and that the best interest of the children required a stable home situation. Based on these findings, the court rendered judgment terminating the parental rights of Wilson and Ragans. Wilson appeals the judgment. Ragans did not file an appeal.

DISCUSSION

In two assignments of error, Wilson contends the trial court erred in finding that there was no reasonable expectation of significant improvement in her conduct and that the termination of her parental rights was in the best interest of the children. Wilson argues that the evidence of her completion of the case plan requirements shows that she will be able to adequately care for her children in the foreseeable future.

A parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children, including the companionship, care and custody of the children. in the Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719; tate in the Interest of S.C.M., 43,441 (La.App.2d Cir.6/4/08), 986 So.2d 875. The fundamental purpose of involuntary termination proceedings is the protection of a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs by providing an expeditious judicial process to terminate parental rights and to achieve stability for the child. The primary concern of the courts and the state is to secure the best interest of the child, including termination of parental rights if justifiable grounds exist and are proven. State ex rel. R.L.T. and S.A.T., 45,168 (La.App.2d Cir.1/27/10), 30 So.3d 1085.

To terminate parental rights, the state must prove by clear and convincing evidence the existence of one of the statutory grounds for termination. LSA-Ch.C. art. 1035. Parental rights may be terminated when at least one year has elapsed since a child was removed from the parent’s custody, there has been no substantial parental compliance with a case plan previously approved by the court as necessary for the child’s safe return, and there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future. LSA-Ch.C. art. 1015(5). Once a ground for termination has been established, the court may terminate parental rights upon a finding that termination is in the children’s best interest. LSA-Ch.C. art. 1039; State in the Interest of S.C.M., supra.

The lack of parental compliance with a case plan may be established with evidence of one or more of the following: the parent’s failure to contribute to the cost of the child’s foster care after an order of the court; the |4parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan; the parent’s lack of substantial improvement in redressing the problems preventing reunification; and the persistence of conditions that led to removal. LSA-Ch.C. art. 1036. The lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be shown by evidence of any substance abuse that renders the parent incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, or any other condition indicating the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or pattern of behavior. LSA-Ch.C. art. 1036(D).

The issues of parental compliance with a case plan and the reasonable expectation of significant improvement in the parent’s condition or conduct are questions of fact. A trial court’s factual findings will not be set aside in the absence of manifest error. State ex rel. T.J.L.M., 45,517 (La.App.2d Cir.6/23/10), 41 So.3d 1268.

In the present case, Rusty Reed, a child support analyst with the Department, testified that in July 2009, the court ordered Wilson to pay monthly child support of $50 per child. Reed stated that Wilson had not made any payments and that at the time of the hearing her support arrear-age was $2,550. Pat Cover, a social worker with the Department and the case manager for the family, testified that the case plan required Wilson to attend and complete a substance abuse program, parenting classes, anger management classes and to attend a psychological evaluation. Cover stated |fithat Wilson was referred to a licensed counselor, Shelly Booker, for anger management and domestic violence counseling. Cover testified that Wilson completed the parenting classes, but attended only four sessions with Booker and as a result, she failed to complete the domestic abuse counseling requirements of the case plan. Cover stated that although Wilson completed the in-patient substance abuse program at the Pines Treatment Center, she continued to drink alcohol after completing the program and in July 2010, Wilson visited the children with the smell of alcohol on her breath. Cover testified that Wilson had not successfully completed her case plan because her alcohol abuse continued to be a problem and she needed to return to Booker for counseling. Cover stated that she had tried a number of times to visit the home being rented by Wilson, but was never able to get inside to assess the adequacy of the housing. Cover testified that the children were doing well in school and that the foster parents of A.W. and B.W. had expressed an interest in adoption.

Dr. David Atkins, a psychologist, testified that in March 2009, he had performed a psychological evaluation of Wilson and had administered a personality assessment and a parenting inventory. Dr. Atkins stated that Wilson’s personality assessment did not indicate any psychiatric illness. He testified that during the interview, Wilson did not appear to make the connection that her drinking and the physical violence in the home placed the children at risk of being harmed. Dr. Atkins agreed that Wilson’s completion of certain classes or a treatment program would be a positive factor, but he stated that evidence of an actual change in Wilson’s behavior | ¿was more important than her participation in a particular treatment program. Dr. Atkins opined that the children would not be safe in a home situation where Wilson was continuing to abuse alcohol.

Joy Wilson testified that she had relapsed after completing the substance abuse treatment program at the Pines Treatment Center and admitted she had been drinking wine coolers prior to her visit with the children in July 2010. Wilson stated that after relapsing she had not attended any other treatment program, but that she had gone to some AA meetings. However, Wilson could not recall how many AA meetings she had attended, she did not have a sponsor and she could not recite any of the twelve steps of recovery. Wilson stated that she visited the children twice each month, but acknowledged that she had not paid any child support ordered under the case plan, despite having worked at a convenience store for seven months with an income of approximately $500-$600 per month. Wilson testified that she did not recall slapping B.W. and denied hitting her children. Wilson identified herself in police photographs showing one of her eyes swollen shut after being punched by Ragans in July 2010. Wilson stated that she did not need counseling for domestic violence and that she believed she had completed the case plan requirements.

The record shows that the Department assisted Wilson in getting substance abuse treatment and counseling. Although Wilson completed some of the case plan requirements, her overall lack of compliance with the case plan was demonstrated by Wilson’s refusal to pay any child support as ordered by the court, her failure to attend marital and domestic violence |counseling sessions with Shelly Booker, and her failure to allow the case worker to assess the adequacy of the home. In addition, the Department proved that there was no reasonable expectation of significant improvement in Wilson’s future conduct with evidence that she continued to use alcohol, she failed to attend AA meetings as recommended by staff at the Pines Treatment Center, and she remained in a physically abusive relationship with Ra-gans. Based on the evidence presented, we cannot say the trial court erred in finding that the Department proved by clear and convincing evidence that Wilson did not substantially comply with the case plan approved by the court and that there was no reasonable expectation that Wilson’s conduct would significantly improve in the future. Thus, the assignment of error lacks merit.

In her appellate brief, Wilson argues that termination of her parental rights is contrary to the children’s interest in being raised together by their mother. Children need permanency and stability and forcing them to remain in foster care indefinitely, when there is no hope of reunification, runs counter to the state and federal mandates to further the best interests of the child. State ex rel. T.J.L.M., supra; State in the Interest of S.C.M., supra.

Dr. Susan Vigen, a psychologist, testified that she had evaluated each of the children. Dr. Vigen stated that A.W. was doing well in her foster home and that the behavior of J.W. and B.W. had improved in their current placements. When asked if the children’s interests would be served by waiting an additional year to give their parents more time to resolve the problems addressed in the case plan, Dr. Vigen opined that the period of | ¡¡almost two years spent in foster care had been very difficult for the children and that they should not have to wait another year before knowing where they would live. Dr. Vigen testified that she could not support returning the children to a home where the parents were still involved in a violent relationship. The evidence presented by the Department supports the conclusion that the termination of Wilson’s parental rights is in the children’s best interest. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment terminating Joy Wilson’s parental rights to J.W., B.W. and A.W. is affirmed. Costs of this appeal are assessed to the appellant, Joy Wilson.

AFFIRMED.