source: Caselaw Access Project

author: KUHN, J. THERIOT, J., HIGGINBOTHAM, J.

license: Public Domain

text:
    STATE of Louisiana v. Stanley WHITE.
    No. 2013 KA 1192.
    Court of Appeal of Louisiana, First Circuit.
    July 21, 2014.

      Ricky L. Babin, District Attorney, Don-aldsonville, LA, Joni M. Buquoi, Lloyd A. Capello, Jr., Assistant District Attorneys, Gonzales, LA, David A. Weilbaecher, Jr., Assistant Attorney General, Baton Rouge, LA, for Appellant State of Louisiana.
    J. Rodney Baum, Walter C. Dumas, Steven J. Moore, Baton Rouge, LA, Mark D. Plaisance, Thibodaux, LA, for Defendant-Appellee Stanley White.

      Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   KUHN, J.

_LipN REHEARING EX PROPRIO MOTU

This Court, ex proprio motu, granted a rehearing to correct an administrative error in the issuance of the opinion released on July 14, 2014. We hereby recall and vacate the earlier opinion, which was released in error, and re-issue the opinion, the concurring opinion and the dissenting opinion. Additionally, the stay previously issued by this Court is hereby lifted.

OPINION ISSUED ON REHEARING

l2The defendant, Stanley White, was originally charged by grand jury indictment with vehicular homicide, a violation of La. R.S. 14:32.1. Pursuant to a plea agreement, on July 10,1995, the defendant pled guilty to a reduced charge of negligent homicide, a violation of La. R.S. 14:32. On December 11, 1995, he was sentenced to twenty-four months at hard labor. On January 8, 1996, the defendant filed a motion to reconsider sentence and requested a stay of execution of sentence The district court granted the request for stay of execution that same day until such time that a hearing was held on the motion to reconsider sentence. On February 12,1996, the district court denied the motion to reconsider sentence and ordered that the defendant surrender himself to begin serving the sentence previously imposed. On February 14, 1996, the district court granted the defendant’s motion for bond pending appeal.

On appeal in an unpublished decision, this court affirmed the defendant’s conviction and sentence. See State v. White, 96-1005 (La.App. 1st Cir.2/14/97), 690 So.2d 1123 (per curiam). Notice of judgment was mailed to the district court judge, the clerk of the district court, all appeal counsel of record, and the district attorney’s office.

No further action took place until July 19, 2011, when the State filed a motion for execution of sentence. It appears from a show cause order signed by the district court that the parties were ordered to appear on September 26, 2011, for a hearing on the matter. However, the record does not contain a minute entry or transcript from that day.

The State subsequently filed a motion to revoke appeal bond and motion to execute sentence on April 10, 2013. The matter was heard on May 3, 2013, and a motion to quash sentence filed by the defendant was also heard that day. The |3district court denied the defendant’s motion to quash, but nevertheless imposed a new sentence by ordering that the remainder of the defendant’s original two-year sentence be suspended and that he be placed on supervised probation for two years, with credit for time served. The State objected to the new sentence and requested a stay of execution of sentence pending its appeal, which the district court granted.

The State now appeals, arguing that the district court did not have the authority to resentence defendant since his original sentence was legal and had already commenced. For the following reasons, we reverse the decision of the district court imposing a new sentence, and remand for consideration of the State’s well-founded motion to revoke appeal bond and motion to execute sentence.

FACTS

Because the defendant entered a guilty plea, the facts were not fully developed. The record establishes that on July 31, 1994, the defendant was the driver of a vehicle involved in a collision resulting in the death of ten-week-old Brittany Deville. In her written reasons for judgment, the district court judge stated that although the defendant was not legally intoxicated under the DWI statute in effect at the time of the offense, he had a blood-alcohol level of .09 grams percent. See La. R.S. 14:98 (prior to its amendment by 2001 La. Acts No. 781, § 1).

DISCUSSION

In its sole assignment of error, the State argues that the district court did not have the authority to resentence the defendant. Specifically, the State contends that the action of the district court runs counter to the body of law associated with La. C.Cr.P. art. 881 and violates the separation of powers enumerated in the Louisiana Constitution.

14Article 881 provides, in part:

A. Although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.
B. (1) After commencement of execution of sentence, in felony cases in which the defendant has been sentenced to imprisonment without hard labor and in misdemeanor cases, the sentencing judge may reduce the sentence or may amend the sentence to place the defendant on supervised probation. [Emphasis added.]

Louisiana Revised Statutes 15:566.2 provides that:

Whenever a prisoner is sentenced to imprisonment in the state penitentiary, and has not been released on bail or perfected a suspensive appeal, such sentence shall be considered as commencing on the day following the day on which such prisoner is sentenced without regard to the actual date of incarceration in the state penitentiary.

Article 881 is inapplicable to the facts of the present case because the sentence for the defendant’s felony conviction was at hard labor and the execution of the defendant’s sentence had commenced. Upon denying the defendant’s motion to reconsider sentence on February 12, 1996, the district court ordered the defendant to surrender himself to the Department of Corrections to begin serving his two-year sentence. Under La. R.S. 15:566.2, execution of the defendant’s sentence must be considered as commencing the day after he was sentenced, which was December 12, 1995. We note that the record also indicates that the defendant was actually incarcerated for at least two days prior to the granting of his post-conviction bond. Thus, as the State correctly argues, the district court lacked authority to impose a new sentence on the defendant since execution of his original sentence had commenced, and the defendant had already begun to serve a legal sentence at hard labor.

Moreover, the district court’s reduction of a final sentence after it became executory was, in effect, an exercise of the power of commutation. The power of commutation, however, is constitutionally reserved exclusively to the executive Isbranch of state government. See State v. Dick, 06-2223 (La.1/26/07), 951 So.2d 124, 132-33. The judiciary does not have the authority to commute or otherwise reduce a final sentence. See State v. Surry, 48,464 (La.App.2d Cir.8/2/13), 121 So.3d 804, 806-07, writ denied, 03-3118 (La.5/21/04), 874 So.2d 171.

The record does not reveal that the defendant applied for rehearing or took a writ to the Louisiana Supreme Court from the judgment of this court affirming his conviction and sentence. A judgment rendered by an appellate court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made. La.C.Cr.P. art. 922(B). After appeal attempts are exhausted, the district court lacks jurisdiction to take any action in a criminal proceeding other than the actions specified in La.C.Cr.P. art. 916 or “as otherwise provided by law” (such as to handle an application for a writ of habeas corpus or an application for postconviction relief). See State v. Gedric, 99-1213 (La.App. 1st Cir.6/3/99), 741 So.2d 849, 852 (per curiam,), writ denied, 99-1830 (La.11/5/99), 751 So.2d 239.

Louisiana Code of Criminal Procedure article 916 provides that:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
(1) Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
(2) Correct an error or deficiency in the record.
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
(4) Take all action concerning bail permitted by Title VIII.
(5) Furnish per curiam comments.
(6) Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.
(7) .Impose the penalty provided by Article 844.
|fi(8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

When the original sentence imposed is legal, none of the actions specified in Article 916 confer jurisdiction or authority upon a district court to impose a new sentence after an appeal is taken. See Gedric, 741 So.2d at 852. The defendant argues that State v. Roberts, 568 So.2d 1017 (La.1990) (per curiam), provided authority for the district court to modify his sentence. Yet, we note that the procedural posture of Roberts is distinguishable from the instant case. In Roberts, the relators filed petitions for writs of habeas corpus after the State executed their nine-year sentences over six years after the sentences had been affirmed on appeal. The district court denied the petitions for habeas relief, but the Louisiana Supreme Court ordered that the relators be released on parole. Roberts, 568 So.2d at 1018-19. Unlike the instant case, the district court in Roberts had jurisdiction to review the petitions for habeas relief under Article 916. See Gedric, 741 So.2d at 852. Moreover, rather than giving the defendant in the present case unearned incarceration credit and placing him on parole, the district court suspended his entire sentence. We do not find Roberts controlling in this case.

Additionally, we do not find that the defendant was entitled to any credit against his sentence for the time that he spent free. The time that the defendant spent free is analogous to that of an offender out on parole or probation, which are acts of grace to one convicted of a crime. Because they are less restrictive on the offender’s freedom than penal incarceration, and are acts of graee to the offender, violations of parole and/or probation have consequences such as no entitlement to credit against the offender’s sentence for time spent on probation and/or parole. Parker v. LeBlanc, 12-0750 (La.App. 1st Cir.12/21/12), 2012 WL 6680344 (unpublished); Bancroft v. Louisiana Department of Corrections, 93-1135 (La.App. 1st Cir.4/8/94), 635 So.2d 738, 740. Similarly, the time that the defendant spent free was certainly an 17“act of grace,” and he should not be entitled to credit against his sentence for that time.

For the foregoing reasons, we find that the district court lacked jurisdictional authority and was without a procedural mechanism to impose a new sentence upon defendant. Accordingly, the judgment of the district court imposing a new sentence upon defendant is reversed, and this matter is remanded to the district court for consideration of the State’s well-founded motion to revoke appeal bond and motion to execute sentence.

NEW SENTENCE REVERSED; AND REMANDED WITH INSTRUCTIONS.

THERIOT, J., concurs and assigns reasons.

HIGGINBOTHAM, J., Dissents and assigns reasons.

THERIOT, J.,

concurring and assigning reasons.

|! This case presents a unique set of circumstances. Both parties raise legitimate arguments in support of their respective positions. However, before we can have a discussion of the separation of powers and the principles of fundamental fairness dictated by the due process clause of the Fourteenth Amendment of the United States Constitution, we must first resolve the issue of the trial court’s authority to amend Mr. White’s sentence.

I agree that the trial court exceeded its authority and the matter should be remanded. Considerable discussion centered on La.C.Cr.P. art. 881 and when execution of the sentence commences. The majority relies on La. R.S. 15:566.2 to determine the commencement of Mr. White’s sentence. However, La. R.S. 15:566.2 does not apply when a prisoner “has been released on bail or perfected a suspensive appeal”. See La. R.S. 15:566.2. Mr. White was released on bail; therefore, in my opinion, La. R.S. 15:566.2 does not apply to the present case.

I find that Mr. White’s sentence commenced on February 16,1996. That is the date the trial court remanded Mr. White to the physical custody of the sheriff. The Louisiana Supreme Court has held that the word “execution,” as it relates to criminal sentences, is defined as “the process of performing a judgment or sentence of a court”. State v. Brown, 451 So.2d 1074, 1078 (La.1984). In this case, the ^process of performing the sentence commenced when Mr. White was remanded to the custody of the sheriff. At that point, pursuant to La.C.Cr.P. art 881, the trial court was prohibited from amending the sentence.

I also agree that the facts of this case differ from the facts of the Roberts case. Therefore, Roberts is not controlling in this matter. However, I do reserve judgment as to whether the reasoning of Roberts should apply to this case.

Pursuant to LA.C.Cr.P. art 881.4(A), it is appropriate to remand this matter to the trial court for further proceedings. Although the trial court’s jurisdiction has been divested, the State has filed a motion with the trial court, thereby subjecting the State to the jurisdiction of the trial court as it pertains to the motion to revoke appeal bond and a motion to execute sentence pending. Like any other motion filed before a trial court, the trial court may grant the motion or the trial court may deny the motion. I would advise the trial court to hold a contradictory hearing to allow both parties to argue their well-founded positions. Furthermore, the trial court should provide written reasons to substantiate its denial, or granting of the motions. Once a decision is rendered on the State’s motions, this court would be in the proper position to discuss the constitutional questions being raised by the parties.

HIGGINBOTHAM, J.

|,First, I acknowledge that the loss of baby Brittany is a terrible tragedy that no parent should have to endure, and I in no way want to dimmish that tragedy.

As espoused by the Louisiana Supreme Court in State v. Kline, 475 So.2d 1093 (1985) (per curiam), and State v. Roberts, 568 So.2d 1017 (La.1990) (per curiam), reincarceration at this time of Mr. Stanley White would be inconsistent with fundamental principles of liberty and justice. Therefore, I respectfully disagree with the decision of the majority to remand the matter, and I would affirm the judgment of the trial court.

The Roberts court found that execution from the beginning of relators’ sentences more than seven years after they were initially imposed and more than six years after the sentences were affirmed on appeal was inconsistent with fundamental principles of liberty and justice. The court held that due process and fundamental fairness required that it fashion an appropriate relief. Under the particular circumstances of the case, the court concluded that the defendants should be released on parole considering the nature of the offenses, the sentences imposed, the lapse of time without ^execution of the sentences, their exemplary conduct, and the absence of any fault or wrongdoing on their part. Roberts, 568 So.2d at 1019.

In Kline, the defendant was released from custody on his sentence of one and one-half years at hard labor for attempted possession of a firearm. The court stated that there was no evidence in the record that the defendant had any part in securing his release from the parish jail on order of the district court judge within fifteen days of the date he surrendered himself after his conviction and sentence were affirmed on appeal. The sheriff and district attorney’s office were aware of the situation and took no action while the defendant reestablished himself in the community, obtained work, and avoided any further problems with the authorities. The court reasoned that under those circumstances, re-incarceration of the defendant to serve the balance of his term would be inconsistent with the fundamental principles of liberty and justice. Kline, 475 So.2d at 1093.

In the instant case, the tragic accident occurred nearly twenty years ago when Mr. White was 19 years old. After his trial and appeal, Mr. White had no notice to report to the sheriffs office on a particular date and no arrest warrant was ever sought by the State. Mr. White did not violate any conditions of his bond. Moreover, there has been no explanation for the State’s delay in executing the sentence. Further, since his conviction, Mr. White obtained a bachelor’s degree, a realtor’s license, full-time employment, has had no arrests and took no steps to prevent the lawful execution of his sentence.

Under the unusual circumstances of this case, considering the rationale of Kline and Roberts, due process and fundamental fairness require that the court fashion an appropriate relief. The record reveals that Mr. White has been a model citizen for twenty years, has established himself in lathe community, and has avoided further problems with the authorities, thereby demonstrating his capacity to rehabilitate himself in a non-custodial setting. In this case, due process and fundamental fairness support the judgment of the district court. I find that the district court fashioned an appropriate relief in modifying Mr. White’s sentence to give him credit for time served, suspending his previously imposed two-year sentence, and placing him on supervised probation for two years. Therefore, I would affirm the judgment of the trial court.

      . 568 So.2d 1017 (La.1990).

      . Although the procedural posture of the Roberts case is different from this case, the fundamental principles of liberty and justice adopted by the Louisiana Supreme Court remain the same.


author: CRAIN, J.

text:
    Mary Ann HOLMES v. LOUISIANA STATE BOARD OF NURSING.
    No. 2013 CA 2154.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 5, 2014.

      Willie Hunter, Jr., Monroe, Louisiana, for Plaintiff/Appellant, Mary Ann Holmes.
    E. Wade Shows, Carrie LeBlanc Jones, Baton Rouge, Louisiana, for Defendant/Appellee, Louisiana State Board of Nursing.

      Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

|2Mary Ann Holmes appeals the district court’s judgment affirming the final order of the Louisiana State Board of Nursing (the Board), which revoked her nursing license. We affirm.

FACTS

In October of 2010, Holmes was licensed by the Board by examination to practice as a Registered Nurse (RN) in Louisiana. Holmes began working as an RN at Glen-wood Regional Medical Center in West Monroe. She was terminated from that position in August of 2011 for inappropriate behavior, which included yelling at coworkers, pushing a co-worker, and behaving in a rude and insubordinate manner.

Holmes’ nursing manager at Glenwood Regional reported Holmes’ behavior to the Board, which began an investigation. The Board provided Holmes with an informal notice setting forth the allegations against her. The notice indicated that if the allegations were proven, they would constitute violations of the Nurse Practice Act and the rules and regulations promulgated by the Board, authorizing the Board to take disciplinary action that could include license revocation. At Holmes’ request, a formal hearing was conducted before the Board. After the presentation of evidence, the Board met in executive session, and then rendered its decision to accept the proposed findings of fact and law submitted by the prosecuting attorney and ordered that Holmes’ nursing license be revoked.

Holmes filed a petition for judicial review of the Board’s order in the district court pursuant to the Administrative Procedure Act (APA). After reviewing the administrative record and considering the arguments of the parties, the district court rendered judgment affirming the Board’s order. Holmes now appeals to this court.

J^DISCUSSION

A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under the APA. See La. R.S. 49:964A. Judicial review is confined to the record, as developed in the administrative proceedings. La. R.S. 49:964F. In conducting its review, the district court functions as an appellate court and may affirm the administrative decision, remand for further proceedings, or reverse or modify the administrative decision if substantial rights of the appellant are prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

La. R.S. 49:964G; Dow Chemical Co. Louisiana Operations Complex v. Reduction Credits, 03-2278 (La.App. 1 Cir. 9/17/04), 885 So.2d 5, 10, writ denied, 04-3005 (La.2/18/05), 896 So.2d 34.

The manifest error test is used in reviewing the facts as found by the administrative tribunal; the arbitrary and capricious test is used in reviewing the administrative tribunal’s conclusions and its exercise of discretion. Save Ourselves, Inc. v. Louisiana Environmental Control Com’n, 452 So.2d 1152, 1159 (La.1984). On legal issues, the reviewing court gives no special weight to the findings of the administrative tribunal, but conducts a de novo review of questions of law and renders judgment on the record. Louisiana All Star Baseball Corp. v. State ex rel. Dept. of Rev. Office of Charitable Gaming, 11-0408 (La.App. 1 Cir. 9/14/11), 77 So.3d 288, 293. An “arbitrary” decision shows disregard of evidence or of the proper weight thereof, while a “capricious” decision has no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. Where the law allows for the agency or tribunal to exercise discretion, the plain language of Section 964 indicates that such exercise must be neither abusive nor clearly unwarranted. Cedyco Corp. v. Dept. of Natural Res., 07-2500 (La.App. 1 Cir. 7/23/08), 993 So.2d 271, 275.

Once a final judgment is rendered by the district court, an aggrieved party may seek review of that judgment by appeal to the appropriate appellate court. La. R.S. 49:965. The appellate court reviews the findings and decision of the administrative agency, not the decision of the district court, and therefore owes no deference to either the factual findings or legal conclusions of the district court, just as the Louisiana Supreme Court owes no deference to the factual findings or legal conclusions of the state’s courts of appeal. Survey America, Inc. v. Louisiana Professional Engineering, 09-0286 (La.App. 1 Cir. 2/10/10), 35 So.3d 305, 308 n. 5; Maraist v. Alton Ochsner Med. Found., 02-2677 (La.App. 1 Cir. 5/26/04), 879 So.2d 815, 817-18. Consequently, this court will conduct its own independent review of the record as provided by Section 964G. Cf. Doc’s Clinic, APMC v. State, Dept. of Health and Hosp., 07-0480 (La.App. 1 Cir. 11/2/07), 984 So.2d 711, 718-19, writ denied, 07-2302 (La.2/15/08), 974 So.2d 665.

|i;On appeal, Holmes raises several assignments of error contending that the procedure employed by the Board in rendering its decision violated her rights under the APA, as well as state and federal constitutions. She complains about the prosecuting attorney drafting the findings of fact and conclusions of law and the Board’s acceptance of those findings and conclusions without deliberation, arguing that these actions violated due process rights and rights to a fair hearing before an impartial tribunal.

A nursing license has been recognized as a constitutionally protected property interest. See Cranford v. Louisiana State Bd. of Practical Nurse Examiners, 08-0209 (La.App. 4 Cir. 10/1/08), 996 So.2d 590, 604. The Fourteenth Amendment to the United States Constitution prohibits a state from depriving any person of life, liberty, or property, without due process of law. In addition, Article I, section 2 of the Louisiana Constitution provides “[n]o person shall be deprived of life, liberty, or property, except by due process of law.” Although less formal than judicial proceedings, disciplinary proceedings for nurses are required to be conducted in accordance with considerations of fair play and constitutional requirements of due process. LAC 46:XLVII:3407A. The Louisiana Supreme Court has cautioned that “[i]n light of the substantial powers given to administrative bodies, the courts must be vigilant in assuring that parties in administrative adjudications receive the procedural protections our law affords.” Allen v. Louisiana State Bd. of Dentistry, 543 So.2d 908, 915 (La.1989).

The administrative record reflects that Holmes was provided with notice of the charges against her and provided an opportunity to be heard at the formal hearing. At the hearing, E. Wade Shows served as the prosecutor for the Board and presented evidence to support the charges against Holmes. Holmes appeared at the hearing with counsel and was afforded the opportunity to cross-examine the | ^witnesses against her and also the opportunity to produce evidence rebutting the charges. At the conclusion of the hearing, Shows offered proposed findings of fact and conclusions of law. Holmes did not object. After meeting in executive session for deliberations, the Board voted to accept the proposed findings of fact and conclusions of law.

Holmes contends that this case reflects the same injustice found in Allen, 543 So.2d at 915. In Allen, it was determined that the agency’s decision was the secret product of its prosecutor, and that the commingling of prosecutorial and adjudicative functions violated both the APA and the due process goals it was designed to further. Allen, 543 So.2d at 914-915. The record here does not support such a determination.

The APA governs disciplinary proceedings against nurses, and requires that the Board’s final decision be in writing or stated on the record, and include findings of fact and conclusions of law. La. R.S. 49:958; LAC 46:XLVII:3407A. The APA specifically recognizes that parties may submit proposed findings of fact and conclusions of law, providing that the final decision includes a ruling upon each proposed finding. La. R.S. 49:958. Shows submitted proposed findings -of fact and conclusions of law to the Board. The submission was made on the record, rather than ex parte as in Allen. Holmes made no objection. The Board then concluded the hearing to deliberate in executive session. There is no evidence that Shows participated in the Board’s deliberations or acted improperly. Thereafter, the Board reconvened in open session and made its ruling on the record. Notably, in addition to proposing findings of fact and conclusions of law, the document submitted by Shows included the proposed sanction of suspending Holmes’ nursing license. Contrary to Holmes argument that Shows exerted improper |7influence over the Board, the Board rejected that proposed sanction, instead voting to revoke Holmes’ nursing license. The Board then issued its own final order.

Holmes also complains that the findings of fact in the Board’s final order differ from those proposed by Shows, but the Board failed to discuss those changes. Holmes argues that this must be construed to mean that the final order was not the product of a neutral decision maker. We find no support in the record for Holmes’ arguments. The record reflects that the Board met in executive session to consider the evidence presented. The Board members then voted on the proposed findings of fact and conclusions of law and to revoke Holmes’ nursing license. We find that the variations between the proposed and final findings of fact and conclusions of law confirm that the Board issued its ruling based on its own independent deliberation, and that its decision was not the secret product of the prosecutor, as in Allen.

Holmes also argues that the Board failed to properly discuss the evidence and deliberate before voting to revoke her license. This argument is without merit. The record reflects that the Board went into executive session to conduct its discussion and deliberation. Its final order sets forth its modification and adoption of the proposed findings of fact and conclusions of law, all of which is in compliance with Section 958.

Holmes complains that the revocation of her nursing license violates state and federal constitutional prohibitions against double jeopardy because evidence was introduced of her prior criminal history. See U.S. Const. Amend. V; La. Const. Art. 1, § 15. The Board’s findings of fact recite that Holmes was convicted of disturbing the peace in 1989 and paid a fine; pled guilty to interfering with an officer in 1988 and paid a fine; and pled guilty to theft and aggravated assault in 1986 and served five days in jail. The findings of fact further set forth that the | sBoard originally denied approval of Holmes’ application for licensure as an RN because she had pled guilty to a crime of violence (aggravated assault). However, a settlement order was entered whereby Holmes was approved to take the licensing examination. Holmes contends that consideration of this prior history in this disciplinary proceeding “allowed double jeopardy to ensue and an unfair prejudice and bias to be waged against [her].”

Both the federal and state constitutions provide that no person shall twice be put in jeopardy of life or liberty for the same offense. U.S. Const. Amend. V; La. Const. art. I, § 15. The Double Jeopardy Clause protects the accused against multiple criminal punishments for the same offense, as well as a second prosecution for the same offense after acquittal or conviction. See Hudson v. U.S., 522 U.S. 93, 99, 118 S.Ct. 488, 493, 139 L.Ed.2d 450 (1997); State v. Petitto, 12-1670 (La.App. 1 Cir. 4/26/13), 116 So.3d 761, 772, writ denied, 13-1183 (La.11/22/13), 126 So.3d 477. Both criminal and civil sanctions may be imposed with respect to the same act or omission without violating Double Jeopardy guarantees; however, the civil sanction must not be so divorced from any remedial goal that it constitutes punishment for purposes of jeopardy analysis. Butler v. Department of Public Safety and Corrections, 609 So.2d 790, 795 (La.1992). In determining whether a criminal prosecution and another penalty in a separate proceeding violate double jeopardy, this court employs a two-part test utilized by the United States Supreme Court. First, were the proceedings intended to be criminal or civil in nature? Second, were the proceedings so punitive in form and effect as to render them criminal, despite legislative intent to the contrary? To satisfy the latter prong, the “clearest proof’ is necessary to show that the sanction is criminal and not civil. State v. Duncan, 98-1730 (La.App. 1 Cir. 6/25/99), 738 So.2d 706, 710 (quoting United States v. Ursery, 518 U.S. 267, 289, 116 S.Ct. 2135, 2147-2148, 135 L.Ed.2d 549 (1996)); see also Millsap v. Cain, 09-0511 (La.App. 1 Cir. 10/23/09), 2009 WL 3452891.

The legislature has determined “that the practice of nursing by qualified indiriduals is necessary to protect the public health, safety, and welfare of the citizens of this state.” La. R.S. 37:911A. Furthermore, it is in the public interest that the practice of nursing by an RN be regulated. La. R.S. 37:91133. The Board exists, in part, to protect the public interest against licensed professionals who violate the standards of nursing, whether intentionally, negligently, or from the absence of the emotional and psychological ability to cope with the demands of the profession. See Cranford, 996 So.2d at 604. Revocation of a nurse’s RN license in a disciplinary proceeding is not so divorced from the remedial goal of regulating the practice of nursing that it amounts to a second criminal punishment for the same offense in violation of double jeopardy. Cf. Louisiana State Bd. of Medical Examiners v. Booth, 76 So.2d 15, 19-20 (La.App. 1 Cir.1954) (holding that a proceeding to enjoin medical practice without a license following prosecution for practicing medicine without a license was civil in nature and did not violate double jeopardy); see also Butler, 609 So.2d at 797 (holding that driver’s license suspension provision of Louisiana’s Implied Consent law is remedial in nature and does not constitute a second punishment for the same offense in violation of double jeopardy); In re Soileau, 502 So.2d 1083, 1086 (La.1987) (finding that double jeopardy did not apply to disciplinary proceedings against a judge); Pullin v. Louisiana State Racing Commission, 484 So.2d 105, 105-106 (La.1986) (characterizing a proceeding before the Louisiana State Racing Commission that resulted in suspension of a racing license as civil); Allen v. Louisiana State Bd. of Dentistry, 603 So.2d 238, 242 (La.App. 4 Cir.1992) (characterizing an administrative proceeding that could result in loss of dental license as civil). Thus, |inHolmes’ rights were not violated when the Board considered her prior criminal history as evidence in the disciplinary proceeding, even after considering it in deciding whether she should be issued a nursing license.

Likewise, we find no merit to Holmes’ argument that the revocation of her nursing license constitutes cruel and excessive punishment in violation of the Eighth Amendment to the United States Constitution and Article I, section 20 of the Louisiana Constitution. Although a punishment may result from a civil proceeding, the revocation at issue is a remedial measure in furtherance of the state’s interest in protecting the public health, safety, and welfare of Louisiana’s citizens. See La. R.S. 37:911 A; Austin v. U.S., 509 U.S. 602, 606-610, 113 S.Ct. 2801, 2804-2805, 125 L.Ed.2d 488 (1993). Accordingly, revocation of a nursing license in a disciplinary proceeding does not violate the constitutional prohibition against cruel and excessive punishment. Cf. City of New Orleans v. Benson, 95-1505 (La.App. 4 Cir. 11/30/95), 665 So.2d 1196, 1200-01.

Finally, Holmes complains about the proof offered to substantiate the charges against her and the punishment imposed. She argues that the most significant witness against her was Debra Hammons, who offered only hearsay accounts of the complained of incidents without any documentation. She further argues that Lisa Jones embellished her account of the incidents between the two of them in an attempt to have the Board revoke Holmes’ license. She contends that even if proven, the revocation of her nursing license is not commensurate to the charges levied against her.

After independent review, we find no merit to Holmes’ arguments regarding the proof offered to support the charges against her. Debra Hammons was Holmes’ immediate supervisor at Glen-wood Regional and testified regarding |nHolmes’ ongoing behavioral problems with other employees. Hammons testified she received multiple complaints regarding Holmes, resulting in others refusing to work with Holmes and patients becoming insecure regarding staff and the care they were providing. Hammons herself witnessed Holmes yelling at people at work and explained that Holmes was written up and counseled about her behavior with regard to other staff members. Hammons believed that termination was warranted after her investigation confirmed a report that Holmes’ behavior escalated to the point of shoving a secretary, Lisa Jones, into a chair. Jones testified and described Holmes yelling, placing her hands on Jones’ shoulders, shaking Jones, pushing Jones into a chair, then pushing the chair across the nurses’ station while instructing Jones to input data into the computer. Additional witnesses testified that Holmes was difficult to work with and that Holmes’ behavior disrupted the entire floor on which Holmes worked. Jeremy Tinnerello, Glenwood Regional’s Chief Nursing Officer, testified that he investigated the complaints against Holmes and believed that termination was necessary based on the pattern of disruptive behavior Holmes exhibited.

The Board is tasked with protecting the public by regulating the practice of nursing and has the discretion to revoke nursing licenses upon proof of certain grounds for discipline, including being unfit or incompetent by reason of negligence, habit, or other cause such as failure to utilize appropriate judgment. La. R.S. 37:911A; La. R.S. 87:921; LAC 46:XLVII:3405A. Although Holmes testified denying the incident with Jones and generally denying the charges against her, the Board credited the testimony of the other witnesses over Holmes. Considering this, the record developed in the administrative proceeding supports the Board’s conclusion that Holmes was unfit or incompetent and failed to utilize appropriate judgment. The Board’s resulting decision to revoke Holmes’ nursing 112license was neither arbitrary nor capricious and was supported by the evidence and law.

Finding that the Board’s findings and the disciplinary action taken do not violate constitutional or statutory provisions, are not in excess of the Board’s authority, were not made upon unlawful procedure and were not affected by error of law and were not arbitrary, capricious, or characterized by abuse of discretion, we affirm. See La. R.S. 49:964G;

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court. Costs of this appeal are assessed to Mary Ann Holmes.

AFFIRMED.

WHIPPLE, C.J., signed with permission.

WELCH, J., signed with permission.

      . Holmes has framed her assignments of errors on appeal as errors by the district court in failing to address certain issues and in affirming the Board's decision. As we review the findings and decisions of the Board, not the district court, we will consider the merits of the issues raised as they relate to the findings and decisions of the Board, in accordance with Section 964G.

      . We further note that the Board is not bound by strict rules of procedure or other laws of evidence in the conduct of its proceedings. La. R.S. 37:922D.


author: THERIOT, J. KUHN, J.,

text:
    Cedric BATISTE v. CITY OF BATON ROUGE, Baton Rouge Police Department, and Officer Carl Alexander.
    No. 2013 CA 1243.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 14, 2014.
    Rehearing Denied Dec. 12, 2014.

      Cedric Batiste, Baton Rouge, Louisiana, Plaintiff/Appellee Pro Se.
    Mary E. Roper, Parish Attorney, James L. Hilburn, Gwendolyn K. Brown, Special Assistant Parish Attorneys, Baton Rouge, Louisiana, for Defendants/Appellants City of Baton Rouge and Officer Carl Alexander.
    Before KUHN, PETTIGREW, HIGGINBOTHAM, CRAIN, and THERIOT, JJ.
   THERIOT, J.

| gDefendants-appellants, City of Baton Rouge and Baton Rouge Pohce Department Officer Carl Alexander, appeal the trial court’s judgment awarding damages to plaintiff-appellee, Cedric Batiste, for personal injuries Batiste sustained when Alexander allegedly falsely arrested him. For the following reasons, we reverse and render judgment in favor of the City of Baton Rouge and Officer Carl Alexander.

FACTUAL AND PROCEDURAL BACKGROUND

On February 23, 2010, Alexander was assigned extra duty as a uniformed pohce officer at Capital Area Human Services, which deals with mental health patients, among others. He received a policy and procedures manual, but was given no additional training. When visitors entered the building, they had to sign the logbook. If a visitor was going upstairs to see someone, the officer on duty checked identification after the visitor signed in and gave the visitor a pass. The officer would contact those upstairs to advise them they had a visitor. However, if the visitor was going to the mental health facility, the person had to go to the left, walk to a desk, and sign in with the clerk. Batiste, who testified he had been diagnosed as mildly retarded, schizophrenic, and bipolar in 1992, and who was forty years old on the date of the incident, was bringing documentation to Carla Lewis for his son who had a contract with Capital Area Human Services for assistance.

According to Alexander, Batiste walked in and proceeded upstairs. Alexander told him he needed to sign the logbook. Batiste replied that he was bringing a letter for his son. Alexander again told Batiste that he could not go upstairs until he signed in and received a visitor’s pass. Alexander testified that Batiste would not sign in and | ¡¡became loud and belligerent and cursed. Alexander asked Batiste to step outside, which he did.

Contrary to Alexander’s trial testimony, Batiste testified he walked in the building, put his phone, wallet, and keys in the basket, went through the metal detector, and then began signing the logbook. Batiste testified that Alexander asked him what he was doing and he replied that he was signing his name. According to Batiste, once a visitor signed his name in the logbook, he was given a number and could go upstairs without having to show identification. Batiste stated that Alexander then asked him to step outside. He denied raising his voice inside the building.

Each party’s testimony as to the ensuing events continues to differ, but Alexander ultimately arrested Batiste, handcuffed him, and put him in a police car. He issued Batiste a summons for disturbing the peace, remaining on the premises after being forbidden, and resisting arrest. On February 9, 2011, Batiste filed suit against the City and Alexander. He sought damages for personal injuries he alleged he sustained due to a false arrest by Alexander who was in the course and scope of employment with the City. The parties stipulated that the total amount of damages did not exceed $50,000.00 and the matter would proceed as a bench trial.

After the bench trial, the trial court signed a judgment granting Batiste’s claims against the City and Alexander and awarding him $30,000.00 in damages, together with legal interest from the date of judicial demand and costs. The trial court did not provide reasons for judgment. From this judgment, the City and Alexander appeal. On appeal, defendants contend the trial court erred in crediting the “self-serving, incredible testimony of the plaintiff over the reasonable, consistent account provided by the defendant and the two independent eye-witnesses.” They also contend that the damages award is excessive and unsupported.

\/Trial Testimony

At trial, Alexander testified that he told Batiste twice that he needed to sign the logbook and Batiste refused, stating, “I ain’t signing no effing thing.” Batiste was loud and belligerent, so Alexander told Batiste to step outside, which he did. Alexander said the situation worsened, and Batiste was drawing attention to himself from everyone walking in. Alexander told Batiste twice to leave the property, but he refused, so Alexander told Batiste he was under arrest.

Alexander handcuffed Batiste’s left hand, and Batiste claimed he had done nothing. Alexander told Batiste again that he was under arrest and asked for his other hand, but Batiste did not comply. Alexander took Batiste’s right hand to finish cuffing him, but he jerked away. Alexander then put a hand on the back of Batiste’s neck and escorted him to the police car while asking for his right hand. Batiste repeated he had done nothing. Alexander responded that he was booking Batiste for entry or remaining after being forbidden and disturbing the peace. They arrived at the car and Batiste still would not give Alexander his other hand, so Alexander pushed him. against the car for leverage and was able to grab the other hand and finish handcuffing him. Alexander explained: “And when I was trying to get him in the car, he got stiff as a board. I said, dude, get in the car. At that point we was tussling, so what I did, I pushed him in the car.”

Alexander called Sergeant Nacoste, the site supervisor, and explained what had occurred. Nacoste advised Alexander he could not book Batiste into jail because Alexander was at the mental health- center alone and could not leave it unattended. Nacoste told Alexander to issue Batiste a summons. Alexander read Batiste his IsMiranda rights, issued a summons, and told Batiste he could bring the letter for his son the next day.

Alexander testified he did not strike or hit Batiste in the building, outside, or while he was in the car, and he did not curse at Batiste. Alexander testified that Batiste could have possibly hit his head when Alexander was trying to get him in the car. He did not recall telling Batiste he made $27.00 per hour. Alexander had no complaints filed against him for use of excessive force.

Batiste’s trial testimony as to what occurred differs from Alexander’s. Batiste testified that when Alexander asked him to go outside, he did so. Alexander told him, “Yo, dog, what are you doing? ... When I ask you to sign the log, you sign it.” Batiste replied, “No, first of all, my mama ain’t named me no dog. My name is Cedric Wayne Batiste.” According to Batiste, Alexander replied, “Let me tell you one thing. This is a job that don’t pay nothing anyway because I only make $27.00 an hour.” Batiste told Alexander he did not want to know how much he made and he thought he could “rule people” “just because” he wore a badge. Alexander then told Batiste to leave. Batiste refused, telling Alexander he wanted to turn in his letter. Batiste started calling on his phone because he could not go back inside. Alexander told him to put the phone down, and Batiste responded that he wanted to give Lewis the letter.

According to Batiste, Alexander told him to put the phone down again, then Alexander jerked the phone out of his hand and slammed it on the ground. Batiste testified that Alexander

[Gjrabbed me by my neck like that. And then he went with the other hand and punched me in my face. Then he grabbed my shirt like that and pulled me to his unit. And when he got me to the unit that’s when he — like he said, he shoved me against the unit. My chin hit the trunk and that’s when he put the cuffs on me. He did not read me my rights at all. He throwed [sic] me in the unit, just like he said, and when he got me in the unit he called me all kind of B’s, H’s. Everything he could | finame, he said. He said you all niggers think the white people — you all niggers think the white cops be beating you all’s ass, but the niggers do it too.

Batiste said Alexander continued to curse at him and Batiste told Alexander, “man, this is police brutality how you tore my shirt, how you punched me in my face.” Batiste testified Alexander waited forty minutes and other officers arrived at the scene. One of the officers opened the door and asked Alexander what happened, to which he responded that he had “just roughed this nigger up.” Alexander told Batiste he could go. Batiste went across the street and called 911 to report what happened. Batiste was told to call Internal Affairs, which he did, and he spoke to “T. Payne.” Payne told him to go to Internal Affairs at noon, which Batiste did, but Payne was not there. According to Batiste, pictures were taken of his torn shirt, his bruised face, and “the whelps all over my chest.” He was told to call Payne back, and when he did, Payne told him they were going to let the court handle the incident.

One of the witnesses to part of the incident, Elder Ray Arnold, testified that he was doing electrical maintenance in the lobby about eight to ten feet away from Alexander. He heard Alexander ask Batiste to sign the register a “couple of times” and they began arguing. Arnold testified that Batiste was speaking in a loud voice, which grew louder, but he could not recall if Batiste cursed. Arnold stated that Alexander was not speaking loudly or cursing. According to Arnold, “they” asked Batiste to step outside and “cool off and come back in.” He testified that Batiste did not, so Alexander escorted him outside. Arnold said that Alexander did not manhandle, act aggressively toward, or use physical force against Batiste. Arnold could not see what was going on outside once they left the building, although he did testify he saw Alexander walking Batiste with handcuffs to the car.

The deposition of the second witness, Joseph Michael Doiron, was introduced into evidence. Doiron testified he was working outside the front entrance and saw Alexander and Batiste leaving the building and walking towards a police car in front |7of the building. Doiron explained he was eighty to one hundred feet away, but when asked if he had a clear view, he replied affirmatively. Doiron added that the men “didn’t raise their voices real loud but I could hear [Batiste]. He was ... raising his voice but I couldn’t understand what they were saying.”

Doiron testified that when they got to the police car, Alexander reached behind Batiste to put him in handcuffs. According to Doiron, Batiste “sort of resisted a little bit, and that’s when [Alexander] grabbed [Batiste] and held on to [Batiste] and pulled [Batiste’s] arm around to put the handcuffs on, and then [Alexander] opened the door and put [Batiste] in the car.” He added, “[Batiste] didn’t want to be handcuffed. So that’s when the policeman strong-armed him, to grab his arms and get them behind [Batiste] where [Alexander] could handcuff [Batiste].” After Alexander handcuffed Batiste, he put Batiste in the back of the police car. According to Doiron, “[Alexander] opened the door and pushed [Batiste’s] head down in to the car, to keep [Batiste] from hitting [Batiste’s] head on the roof.” Doiron testified he did not see anything else happen. He did not see Alexander ever strike Batiste and did not see any bruises on Batiste. He testified that Alexander was treating Batiste in a professional manner and was not abusing him in any way. Doi-ron did not see anything that occurred inside the facility.

DISCUSSION

Louisiana jurisprudence recognizes that factual determinations made by a trial court are entitled to great discretion on appeal. See, e.g., Smith v. Louisiana Department of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State, 617 So.2d 880, 882 (La.1993); Creekmore v. Elco Maintenance, 94-1571 (La.App. 1 Cir. 6/30/95), 659 So.2d 815, 817. An appellate court cannot set aside a factual finding made by a trial court absent manifest error or unless the finding was clearly wrong. Smith, 633 So.2d at 132. Where there is a conflict in testimony introduced at trial, reasonable evaluations of credibility and reasonable inferences |Rof fact should not be disturbed on review, even if the appellate court feels that its own evaluations of the testimony are more reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Where factual findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trial court’s factual findings. However, the Louisiana Supreme Court has also stated:

Where documents or objective evidence so contradict the witness’s story, or the story itself is so inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. [Emphasis added.]

Id. at 844-45

Furthermore, the Louisiana Supreme Court has clarified that appellate courts need not always uphold factual determinations made by a trial court. See, Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221. In Ambrose, the Supreme Court stated:

Notwithstanding the Court’s earlier guidance to reviewing courts in [Stobart ], it was not our purpose in that case to mandate that the trial court’s factual determinations cannot ever, or hardly ever, be upset. Although deference to the fact finder should be accorded, the court of appeal, and the Louisiana Supreme Court, nonetheless have a constitutional duty to review facts.
Because the court of appeal has a constitutional function to perform, it has every right to determine whether the trial court verdict was clearly wrong based on the evidence, or clearly without evi-dentiary support, [footnotes omitted.] Id.

Thus, an appellate court may find that a trial court’s factual finding is manifestly erroneous or clearly wrong, even if the determination is ostensibly based on witness credibility. For example, in Wilson v. Jacobs, 438 So.2d 1119, 1121 (La.App. 2 Cir.1983), writs denied, 443 So.2d 586, 587 (La.1983), the [¡¡second circuit reviewed a trial court’s denial of a worker’s compensation claim made by a plaintiff-employee who suffered injuries while cutting timber. At trial, the judge was confronted with conflicting testimony regarding which type of tree had injured the plaintiff. The plaintiff had testified that the tree was a pine, but his testimony was “rambling and confusing,” likely due to head injuries and memory impairment incurred as a result of the accident. Id. The only eyewitness to the accident, however, confirmed the plaintiffs account. Id. at 1121-22.

Nonetheless, the trial judge in Wilson determined the tree that injured the plaintiff was a hardwood. Id. at 1121. He did not clarify his reasoning, but apparently preferred the testimony of one of the defendant corporation’s land managers. Id. That individual had not personally witnessed the accident, but had testified that the tree was a hardwood. He based his testimony upon an analysis of the land, which revealed that no pine trees had been removed from the tract after the date of the plaintiffs injury. Id. at 1122. Two other individuals who were called to the scene of the accident testified that they saw both pine and hardwood tree limbs on top of the claimant. Another individual testified that he saw only hardwood limbs on top of the plaintiff. Id.

On appeal, the second circuit reversed the trial judge’s finding and concluded that the tree that injured the plaintiff was a pine. Id. Despite recognizing the possible testimony upon which the trial court’s factual determinations could have been based, and in spite of recognizing that a trial judge was entitled to great deference in conclusions of credibility and facts, the court reasoned that an appellate court was not required to accept “unreasoned and unreasonable findings as to either.” Id. Because the corroborated and rational testimony of an eyewitness merited more weight than the inconsistent, self-serving, and unpersuasive | intestimony of the land manager, the court determined that the trial judge’s conclusions were “not supported by substantial evidence” and, as such, were clearly wrong. Id.

Here, the comparison to Wilson is apparent. At trial, Batiste admitted that he suffered from serious mental impairments including mild retardation, schizophrenia, and bipolar disorder. He also admitted that he had failed to take his prescribed medication on the date of trial. His testimony regarding the incident was somewhat rambling and confusing. He alleged that the incident began when he went to the Capital Area Human Services building and attempted to sign his name on the entrance register. He stated that he wanted to enter the facility to deliver a letter to a social worker who worked with his son, a beneficiary of the facility’s services.

Batiste alleged that Alexander confronted him while he was signing the register and began arbitrarily harassing him. Batiste claimed that Alexander forced him to leave the building, verbally accosted him with racial slurs and degradations, destroyed his personal property, and physically attacked him, causing serious physical and emotional damage. Batiste additionally alleged that he was arrested and kept in Alexander’s patrol car for forty minutes without being apprised of his rights. He also stated that Alexander admitted the wrongdoings to other officers, who later arrived at the scene. Batiste testified that after he was released, he called 911 and talked to the police. He stated that a City Police Internal Affairs Officer interviewed him and took pictures of his personal injuries and damaged property. He testified that he did not immediately go to the hospital for financial reasons, but later visited the doctor “like every two weeks on account of the accident that happened.”

[ nHowever, Batiste’s trial testimony was unsubstantiated by any meaningful documentary or objective evidence. The pretrial order indicated that Batiste would introduce pictures taken of his injuries, medical records, and statements and records from the City Police Internal Affair’s Department. None of this evidence was produced. The purported 911 call, which would have been recorded, was not produced. The Internal Affairs Officer was not produced. The “other officers” who allegedly arrived at the scene and spoke with Batiste were not produced. Medical records were not produced. Finally, and most troubling, is the testimony that two sets of photos of Batiste’s injuries exist, yet neither set of photos were introduced into evidence to support Batiste’s version of events. The parties did stipulate in open court that, if called as a witness, Batiste’s wife would testify that, after the alleged incident, she left work to help care for her husband’s eye, took pictures of his injuries, and visited an attorney with her husband. However, his wife’s affidavit does not support the veracity of his allegations. Notably, Batiste did not contend that his wife witnessed Alexander unlawfully detain him or employ excessive force in effectuating a lawful arrest.

On the other hand, Batiste’s testimony was disputed by compelling and comprehensive evidence. Alexander testified that the incident began when Batiste refused to sign the entrance register as required by facility protocol. He stated that Batiste became upset, disruptively loud, and refused to leave upon his request. Alexander testified that he escorted Batiste outside the facility and attempted to arrest him for remaining on the premises after being forbidden and for disturbing the peace, but that Batiste resisted arrest. Still, Alexander testified he did not strike or hit Batiste at any point and never used profanity. Alexander further testified that he did apprise Batiste of his Miranda rights before issuing him a misdemeanor summons.

JjjThe incident inside of the facility was independently witnessed by a maintenance worker who corroborated Alexander’s testimony. The maintenance worker, Elder Ray Arnold, was working for the State on the day in question, performing electrical maintenance work in the lobby of the Capital Area Human Services building. Arnold testified that he witnessed Alexander ask Batiste to sign the entrance log a number of times, but Batiste refused to do so, became belligerent, and then was escorted out of the building. Arnold stated that Alexander never behaved aggressively, never spoke to Batiste in a loud voice, and did not, to his recollection, curse at the plaintiff.

The arrest outside of the facility was likewise independently and personally observed by an eyewitness whose trial deposition was introduced into evidence. That eyewitness, Joseph Michael Doiron, was working to replace mortar on the Capital Area Human Services building on the day in question. Doiron testified that he was near the front door of the building and had a clear view of the incident. He stated that Alexander behaved professionally towards Batiste at all times, even though Batiste appeared to be resisting arrest. While the witness could not hear what Alexander said to Batiste, he confirmed that Alexander never struck Batiste and even attempted to protect Batiste’s head when placing him into the cruiser.

While the trial court in the instant case did not provide any written reasons for judgment, by finding the City liable for damages allegedly sustained by Batiste, the trial court necessarily found that Batiste was either subjected to an unlawful arrest or that Alexander used excessive force in effectuating a lawful arrest. Irrespective of the particulars of the trial court’s reasoning, however, the finding was clearly wrong.

An individual or municipality may be liable for damages resulting from an unlawful arrest only if the claimant establishes that he was unlawfully detained or arrested, i.e. that he was arrested without color of legal authority. Reese v. City of Baton Rouge, 93-1957 (La.App. 1 Cir. 10/7/94), 644 So.2d 674, 676. The plaintiff bears the burden of proving an arrest was made without legal authority, and there can be no liability if an arrest was effectuated pursuant to statutory authority. Id.

If an arrest is conducted pursuant to statutory authority, an individual or municipality may be liable for damages only if the arrest is effectuated with excessive force. See, Kyle v. City of New Orleans, 353 So.2d 969, 972 (La.1977). However, La.C.Cr.P. art. 220 provides that an officer “may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.”

Multiple witnesses testified that Batiste was detained only after he became belligerent, combative, and disruptive. This behavior established probable cause to arrest Batiste, since municipal ordinances in effect forbid individuals from remaining on property after being forbidden and prohibited disturbing the peace and resisting arrest. See, Code of Ordinances of the City of Baton Rouge and the Parish of East Baton Rouge § 13:63.3, 13:103, 13:108. Testimony likewise confirmed that Alexander employed professional, non-excessive force in effectuating the arrest, even when Batiste resisted such arrest.

The trial court apparently credited the uncorroborated, unsubstantiated, illogical, and self-serving testimony of the claimant over the logical and cogent testimony of the arresting officer, which was independently and comprehensively corroborated by multiple eyewitnesses. Although the holding was purportedly based on a credibility determination, the finding lacks any significant evidentiary support and was thus manifestly erroneous. Consequently, the trial court’s holding merits reversal. See, Ambrose, 639 So.2d at 221; See also, Wilson, 438 So.2d at 1122; Rosell, 549 So.2d at 844.

114DECREE

For the foregoing reasons, the judgment of the trial court is reversed. Judgment is rendered- in favor of the City of Baton Rouge and Officer Carl Alexander, dismissing, with prejudice, Cedric Batiste’s claims against the City of Baton Rouge and Officer Carl Alexander. All cost of this appeal are assessed to the appellee, Cedric Batiste.

REVERSED AND RENDERED.

KUHN, J., dissents and assigns reasons.

HIGGINBOTHAM, J., dissents for reasons assigned by J. KUHN.

KUHN, J.,

dissenting.

| ¶While correctly noting that on review this court is bound by the standard of review, the majority chooses then to overlook application of that standard to the facts presently before us, purportedly relying on the second circuit’s reversal of the trier of fact’s finding in a denial of a workers’ compensation claim. See Wilson v. Jacobs, 438 So.2d 1119, 1121 (La.App. 2d Cir.), writ denied, 443 So.2d 586 (La.1983). Nowhere in its result-driven opinion does the majority address the obvious error of its reliance: that workers’ compensation is to be liberally construed in favor of coverage. See Arretteig v. Our Lady of the Lake Hosp., Inc., 2013-1603 (La.App. 1st Cir.3/21/14), 142 So.3d 1048, 1051. In reversing the fact finder’s determination, the second circuit held that the trial court erroneously accepted testimony of a witness who had no personal knowledge and who had given totally inconsistent sworn testimony over the cogent and corroborated testimony of a witness who actually observed the accident. Wilson, 438 So.2d at 1122. That is in sharp contrast to the testimonial evidence given in this case that the majority chooses to discredit.

In finding Alexander and the City liable, the trial court determined that there was no justification for Batiste’s arrest. The trial court did not err in believing Batiste’s version of events over Alexander’s testimony. Alexander offered no documentary or objective evidence that contradicts Batiste’s version of events, nor |2is Batiste’s version internally inconsistent or so implausible on its face that the trial court’s decision to credit it constitutes error. While the testimony of two disinterested witnesses is inconsistent with Batiste’s account, the first disinterested witness, Arnold, did not observe what occurred outside the building, which is when Batiste testified he was punched in the face, his chin was hit on the police car, his shirt was torn, he was cursed at, and he was threatened. The second disinterested witness, Doiron, was eighty to one hundred feet away from Batiste and Alexander when the incident occurred. The trial court’s inference that at that distance Doiron might not have witnessed a punch in Alexander’s struggle to handcuff Batiste is reasonable especially since Doiron testified that he was so far away that he could not hear what the men were saying. Based on Batiste’s testimony, the trial court concluded that Alexander did not have probable cause to arrest Batiste and that Batiste sustained injuries due to the unlawful arrest.

Even if the trial court erred in implicitly finding no probable cause existed for the arrest or that the arrest was not lawful, Batiste’s testimony supports a finding that Alexander used excessive force in effectuating the arrest. An officer “may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.” La. C.Cr.P. art. 220. Even if an officer has probable cause to arrest, the use of excessive force in effecting the arrest becomes an actionable claim for damages. See Kyle v. City of New Orleans, 353 So.2d 969, 972 (La.1977). Excessive force transforms ordinarily protected use of force into an actionable battery, rendering the defendant officer and his employer liable for damages. Penn v. St. Tammany Parish Sheriff's Office, 2002-0893 (La.App. 1st Cir.4/2/03), 843 So.2d 1157, 1161. In Kyle, the supreme court set forth several factors to consider in making a determination of whether the force used by a police officer to effect an arrest was | ^reasonable under the circumstances. The factors include: (1) the known character of the arrestee; (2) the risks and dangers faced by the officer; (3) the nature of the offense or behavior involved; (4) the chance of escape if the particular means are not employed; (5) the existence of alternative methods of arrest or subduing the arrestee; (6) the physical size, strength, and weaponry of the officers as compared to that of the arrestee; and (7) the exigencies of the moment. Kyle, 353 So.2d at 973. Considering these factors, the trial court did not err in finding Alexander liable for Batiste’s injuries.

Even if convinced that had I been sitting as the trier of fact I would have weighed the evidence differently and would not have determined that there was a false arrest or excessive force in this case, this court is constrained by the manifest error standard of review, which demands that the fact finder’s findings of fact be given great deference and disturbed only when clearly wrong. See Stobart v. State, Dep’t of Trans, and Dev., 617 So.2d 880, 882 (La.1993). A reviewing court must always keep in mind that if the trial court’s findings are reasonable in light of the record reviewed in its entirety, it may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, 617 So.2d at 882. The majority has simply substituted its preferred credibility determination for the one made by the trial court with which it does not agree. It is uniquely the trial court’s province to make factual findings and it is this court’s role to affirm those factual findings — even those implicit ones it does not like — if there is evidence to support them and the findings are reasonable in light of the record reviewed in its entirety. Unlike the testimony that the Wilson court rejected, Batiste’s testimony was based on personal knowledge and consistently recounted. Thus, on appellate review, the trial court’s liability conclusion is correctly affirmed.

UBased on the contents of the record, I believe, however, that the trial court awarded an excessive amount of damages. There was no evidence to support an award of special damages. And to the extent that the trial court’s award of $30,000 was for general damages, it is an abuse of its discretion. See Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Batiste was punched in the face, his shirt was torn, and he had whelps on his chest. He did not see the doctor for his face or chest but used an ice pack, Tylenol, and Visine. Although he testified that he went to the doctor more often, he did not introduce any medical evidence or photographs to support his claims. Batiste stated that he had three weeks of pain and suffering. The trial court’s award of $30,000 is excessively abusive and I would modify it to conform to a reasonable award.

For these reasons, I dissent.

      . Batiste had also been going to Capital Area Human Services for himself since 1992.

      . Also named as a defendant was Baton Rouge Police Department, but in their answer, defendants’pointed out that it was not a legal entity capable of being sued.

      . ■ Alexander testified that, as to people visiting the center who were not mental health patients who were causing a disturbance, he was instructed to tell them to leave and come back the next day.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The type of tree that injured the plaintiff was important as it determined which of the co-defendant corporations might have been the plaintiff's statutory employer. See, Wilson, 438 So.2d at 1121.


author: CRAIN, J. PARRO, J.,

text:
    CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE v. SMUGGY’S CORPORATION, INC.
    No. 2014-CA-0134.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 16, 2014.

      Mary E. Roper, Leo J. D’Aubin, Baton Rouge, Louisiana, for Plaintiffs/Appellees, City of Baton Rouge/Parish of East Baton Rouge.
    Lawrence T. Dupré, III, Zachary, Louisiana, for Defendant/Appellant, Smuggy’s Corporation, Inc.
    Before PARRO, McDONALD, and CRAIN, JJ.
   CRAIN, J.

jjn this expropriation proceeding, the landowner appeals the trial court’s judgment that, in pertinent part, dismissed the landowner’s claim for an increase in compensation. The landowner challenges the trial court’s determination that the expropriating authority did not waive its right to plead abandonment when its counsel attended a deposition after the accrual of the abandonment period. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On June 8, 2000, the City of Baton Rouge and the Parish of East Baton Rouge (collectively “City-Parish”) filed suit against Smuggy’s Corporation, Inc. seeking to acquire certain immovable property owned by Smuggy’s for the purpose of street construction and other improvements pursuant to the “quick taking” procedure set forth in Louisiana Revised Statutes 48-441-460. The City-Parish alleged that just compensation for the property was $33,496.00 and deposited that sum into the registry of the court. The property was adjudicated to the City-Parish pursuant to an order of expropriation signed by the trial court on June 12, 2000.

On January 10, 2001, Smuggy’s filed an answer and sought additional compensation for the property. Pursuant to Louisiana Revised Statutes 48:450 and 48:452.1, the filing of the answer perfected Smug-gy’s claim for an increase in the compensation and essentially placed Smuggy’s in the posture of a plaintiff-in-reconvention. On that same date, and subject to its allegations seeking additional compensation, Smuggy’s requested and obtained a court order permitting it to withdraw the funds deposited by the City-Parish into the registry of the court.

| ¾After Smuggy’s withdrew the funds, the suit record reflects no further activity until March 28, 2003, when Smuggy’s filed a motion for a status conference for the purpose of obtaining a case management order. On April 17, 2003, the trial court issued an order setting discovery and other pre-trial deadlines. The next document filed in the suit record is a motion for a pretrial conference filed on November 16, 2004, followed by interrogatories and requests for production of documents propounded on June 21, 2006.

No further steps were taken in the prosecution or defense of the action until January 4, 2013, when Smuggy’s noticed the deposition of James Lipscomb, a real estate appraiser previously retained by the City-Parish to appraise the subject property. The deposition took place on January 18, 2013, and was attended by counsel for both parties. Smuggy’s then filed a motion for status conference on August 6, 2013.

On October 9, 2013, approximately ten months after its counsel attended the deposition of its expert, the City-Parish filed a motion for final judgment and dismissal for abandonment based upon Section 48:452.1A, which provides:

An owner’s claim for an increase in the compensation is perfected when he timely files his answer as provided in R.S. 48:450 and is thereafter abandoned when he fails to take any step in the prosecution of that claim for a period of three years. This provision shall be operative without formal order, but on ex parte motion of the department the trial court shall render final judgment fixing just compensation in the amount deposited in the registry of the court and awarding that sum to the defendant and dismissing with prejudice any claim for any increase in compensation.

In its motion to dismiss, the City-Parish contended that the period of inaction began on June 21, 2006, the date of the interrogatories and requests for production |4of documents, and did not end until January 4, 2013, when Smuggy’s counsel sent the notice of deposition. In its opposition to the motion, Smuggy’s conceded that it failed to take any step in the prosecution of the case for at least three years but contended that the City-Parish waived its right to claim abandonment by attending and participating in Lipscomb’s deposition on January 18, 2013.

The trial court rejected the waiver argument and on December 2, 2013, signed a judgment in accordance with Section 48:452.1A that fixed just compensation in the amount deposited into the registry of the court, awarded that sum to Smuggy’s, and dismissed, with prejudice, any claim for an increase in the compensation. Smuggy’s appealed the judgment and assigns as error the trial court’s finding that the abandonment period did not begin to run anew from January 18, 2013, the date of Lipscomb’s deposition.

LAW AND ANALYSIS

Section 48:452.1A provides that if an owner seeking additional compensation “fails to take any step in the prosecution of that claim for a period of three years,” the claim is abandoned. This language is similar to the pertinent provisions of Louisiana Code of Civil Procedure article 561A(1), the general article governing abandonment of actions, which provides that an action “is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” Under Article 561, a party takes a “step” in the prosecution or defense of a suit when he takes formal action, before the court and on the record, intended to hasten the matter to judgment. Chevron Oil Company v. Traigle, 436 So.2d 530, 532 (La.1983); Porter v. Progressive Specialty Insurance Company, 99-2542 (La.App. 1 Cir. 11/8/00), 771 So.2d 293, 294.

Abandonment functions to relieve courts and parties of lingering claims. When the parties take no steps in the prosecution or defense of their claims during | ¡;an extended period of time, as designated by the legislature, the logical inference is that the party intends to abandon the claim, and the law gives effect to this inference. See Clark v. State Farm Mutual Automobile Insurance Company, 00-3010 (La.5/15/01), 785 So.2d 779, 786-87; Satterthwaite v. Byais, 05-0010 (La.App. 1 Cir. 7/26/06), 943 So.2d 390, 392-393. Abandonment under Article 561 is self-executing; it occurs automatically upon the passing of three years without either party taking a step, and it is effective without a court order. Clark, 785 So.2d at 784; Compensation Specialties, L.L.C. v. New England Mutual Life Insurance Company, 08-1549 (La.App. 1 Cir. 2/13/09), 6 So.3d 275, 279, writ denied, 09-0575 (La.4/24/09), 7 So.3d 1200. Similarly, under Section 48:452.1A, the abandonment of the claim “shall be operative without formal order.”

However, a party can waive his right to plead abandonment by taking post-abandonment actions that are inconsistent with the intent to treat the case as abandoned. See Clark, 785 So.2d at 785; Hutchison v. Seariver Maritime, Inc., 09-0410 (La.App. 1 Cir. 9/11/09), 22 So.3d 989, 994, writ denied, 09-2216 (La.12/18/09), 23 So.3d 946; Satterthwaite, 943 So.2d at 393. To constitute a waiver, the actions must be “steps that facilitated the judicial resolution of the dispute on the merits and were an expression of the defendant’s willingness or consent to achieve judicial resolution of the dispute.” Compensation Specialties, L.L.C, 6 So.3d at 284 (quoting Satterthwaite, 943 So.2d at 393). In determining whether a waiver occurred, the jurisprudence has recognized the appropriateness of considering the “qualitative effect” of the party’s conduct. Clark, 785 So.2d at 792. Emphasizing “substance over form,” the Clark court found that an uninsured motorist insurer’s unconditional tender of benefits constituted a waiver because the | fi tender had the substantive effect of limiting the insurer’s exposure for penalties and attorney’s fees. Clark, 785 So.2d at 792-793.

Whether a particular act, if proven, precludes abandonment is a question of law that an appellate court reviews by simply determining whether the trial court’s interpretative decision is correct. Hutchison, 22 So.3d at 992; Brown v. Kidney and Hypertension Associates, L.L.P., 08-0919 (La.App. 1 Cir. 1/12/09), 5 So.3d 258, 264. An appellate court owes no deference to the legal conclusions of the trial court. Jackson v. Moock, 08-1111 (LaApp. 1 Cir. 12/23/08), 4 So.3d 840, 843. The pertinent facts in this matter are undisputed, so the issues before the court are limited to questions of law.

The jurisprudence provides the following examples of conduct that constitutes a waiver of the right to plead abandonment: (1) submitting a case for decision by filing a motion for summary judgment (see Chevron Oil Company, 436 So.2d at 531); (2) making an unconditional tender of uninsured motorist benefits, see Clark, 785 So.2d at 789); (3) filing an answer to a supplemental petition (see Bell v. Kreider, 04-594 (La.App. 5 Cir. 11/30/04), 890 So.2d 648, 651, writ denied, 05-0029 (La.4/29/05), 901 So.2d 1062); (4) participating in a status conference and signing a case management schedule (see Seagrave v. Dean, 98-1295 (La.App. 1 Cir. 7/6/99), 739 So.2d 923, 924 writ denied, 99-2856 (La.12/17/99), 751 So.2d 879; see also Tessier v. Pratt, 08-1268 (La.App. 1 Cir. 2/13/09), 7 So.3d 768, 773); (5) filing answers to interrogatories (see State Through Department of Highways v. Enserch Corporation, 559 So.2d 787, 789 (La.App. 1 Cir.), writ denied, 567 So.2d 85 (La.1990)); and (6) forwarding correspondence to opposing counsel requesting proposed dates for a scheduling order to be filed with the court (see Hutchison, 22 So.3d at 995-996).

Conversely, courts found the following conduct did not give rise to a waiver of abandonment: (1) informal settlement negotiations (see Food Perfect, Inc. v. United Fire and Casualty Company, 12-2492 (La.1/18/18), 106 So.3d 107, 108 (per curiam); see also Porter, 771 So.2d at 295); (2) a request to pursue mediation (see Gallagher v. Cook, 34,158 (La.App. 2 Cir. 12/15/00), 775 So.2d 79, 83); (3) opposing a motion to compel (see Phillips v. Conrad Industries, Inc., 07-2035 (La.App. 1 Cir. 6/6/08), 2008 WL 2567654, writ denied, 08-1554 (La.10/10/08), 993 So.2d 1287); and (4) attending a pretrial conference where abandonment of the case was apparently discussed (see Willey v. Roberts, 95-1037 (La.App. 1 Cir. 12/15/95), 664 So.2d 1371, 1376, writ denied, 96-0164 (La.3/15/96), 669 So.2d 422).

The jurisprudence has also recognized that once a party has formally raised the issue of abandonment, actions taken to defend the case pending a final ruling on the claim of abandonment will not serve to revive an abandoned claim. See Compensation Specialties, L.L.C, 6 So.3d at 284 (participating in a status conference and responding to discovery while seeking appellate review of the |sdenial of a plea of abandonment did not constitute a waiver); Slaughter v. Arco Chemical Company, 05-0657 (La.App. 4 Cir. 4/26/06), 931 So.2d 387, 398 (filing a memorandum in opposition to a rule to show cause was not a waiver where the memorandum was filed contemporaneously with a motion to dismiss based on abandonment).

Smuggy’s contends that a waiver occurred in this case because counsel for both parties “jointly scheduled, attended and actively participated in the deposition” of the City-Parish’s expert, and that “the joint conduct of both parties [of] taking a deposition was a step in the discovery process ... which was inconsistent with the intent to treat the case as abandoned.” Smuggy’s cites Article 561B, which provides, in pertinent part, that “the taking of a deposition ... shall be deemed to be a step in the prosecution or defense of an action.” Similarly, Louisiana Code of Civil Procedure article 1446D provides, “The taking of a deposition shall be considered a step in the prosecution or defense of an action for the purposes of Article 561, notwithstanding that the deposition is not filed in the record of the proceedings.” According to Smuggy’s, if the taking of a deposition is sufficient to interrupt the three year abandonment period before it accrues, then the taking of a deposition should likewise be sufficient' to constitute a waiver of abandonment after the expiration of the three year period.

The City-Parish initially counters by asserting that the waiver exception is a jurisprudential development that should be limited to a plea of abandonment under Article 561 and should not be applied to Section 48:452.1A. However, this court has previously extended the waiver exception to the application of Section 48:452.1A in order to provide a “consistent judicial interpretation” of both provisions. See Enserch Corporation, 559 So.2d at 789, n.1. Nevertheless, in an effort to distinguish the two provisions, the City-Parish relies on language in Section 48:452.1A that requires that a judgment of dismissal issued thereunder be |9“with prejudice,” whereas Article 561, which is silent as to the nature of the dismissal, has consistently been construed to result in a dismissal -without prejudice. See Paternostro v. Falgoust, 03-2214 (La.App. 1 Cir. 9/17/04), 897 So.2d 19, 24, writ denied, 04-2524 (La.12/17/04), 888 So.2d 870; St. Tammany Parish Sewerage District No. 7 v. Monjure, 95-0937 (La.App. 1 Cir. 12/15/95), 665 So.2d 801, 802. According to the City-Parish, the “dismissals are legally declared to be ‘operative without formal order,’ [so] it is logically inconsistent to declare that a case dismissed with prejudice could somehow be revived by post dismissal action.”

The flaw in this argument is that Section 48:452.1A does not declare that a dismissal with prejudice is operative without a formal order. Rather, the statute provides that the abandonment of the case is operative without formal order. To obtain a final judgment dismissing the landowner’s claim with prejudice, the expropriating authority is required to file an “ex parte motion,” which the City-Parish did not do in this case until approximately ten months after Lipscomb’s deposition. The actions that Smuggy’s contend constituted a waiver occurred well before the filing of the motion to dismiss and were not “post dismissal” as claimed by the City-Parish.

We also note that Section 48:452.1A provides that the “owner’s claim” is abandoned when “he fails to take any step in the prosecution” of the claim for three years, while Article 561 states that an action is abandoned when “the parties fail to take any step in its prosecution or defense ” for three years. (Emphasis added.) For purposes of a waiver of abandonment, we do not find this distinction material. The waiver doctrine is based on the notion of waiver of prescription and is not dependent upon any particular language in the abandonment statutes governing what constitutes a “step” necessary to interrupt abandonment before it accrues. Cf. Clark 785 So.2d at 787. Even if “steps” taken by the expropriating authority in | ^defense of an owner’s claim could not interrupt the abandonment period, the expropriating authority may nevertheless waive the accrual of the abandonment by taking actions inconsistent with an intent to treat the demand as abandoned. Cf. Enserch Corporation, 559 So.2d at 789. A party’s ability to waive abandonment of a claim, even when actions by that same party would not be considered a “step” for purposes of an interruption of the abandonment period, is further confirmed by jurisprudence that applied the waiver doctrine to claims of abandonment under previous Louisiana Civil Code article 3519, which was in effect prior to the adoption of Article 561 in 1960. Article 3519, similar to current Section 48:452.1A, provided that a claim was abandoned if “the plaintiff’ failed to take any steps in the prosecution thereof within the applicable delay; however, the supreme court repeatedly held that a defendant could waive the right to claim abandonment under that article. See, e.g., Green v. Small, 227 La. 401, 410-411, 79 So.2d 497, 500 (1955); Geisenberger v. Cotton, 116 La. 651, 655, 40 So. 929, 930 (1906).

Accordingly, despite the differences in the statutory language of Section 48:452.1A and Article 561, we see no reason to depart from this court’s precedent establishing that a plea of abandonment under Section 48:452.1A may be waived in the same manner recognized by our courts in the application of Article 561. See En-serch Corporation, 559 So.2d at 789 n. 1.

The City-Parish argues that the attendance of Lipscomb’s deposition is not sufficient to constitute a waiver of abandonment, because its counsel “did not initiate or instigate setting the deposition, and did not question the witness.” For support, the City-Parish cites Jackson v. Moock, 08-1111 (La.App. 1 Cir. 12/23/08), 4 So.3d 840, wherein this court considered whether an attorney’s cooperation in the scheduling of depositions constituted a waiver of his client’s fright to assert abandonment of the case. Finding that the alleged agreement to a date for the depositions was “not tantamount to any expression of willingness or consent to achieve a judicial resolution” to the case, this court held that the defendants did not waive their right to plead abandonment. Jackson, 4 So.3d at 845. However, significantly, the court pointed out that the depositions in that matter never took place. Jackson, 4 So.3d at 845.

The Jackson court cited In re Succession of Wright, 37,670 (La.App. 2 Cir. 9/24/03), 855 So.2d 926, 930, writ denied, 03-2969 (La.1/16/04), 864 So.2d 632, wherein a party filed a motion to dismiss the suit based on abandonment and then submitted to a deposition. The court held that the party did not waive his right to plead abandonment, explaining, “Defendant presumably felt secure in appearing for the deposition because the motion to dismiss the suit on grounds of abandonment had already been filed prior to his appearance at the deposition.” Succession of Wright, 855 So.2d at 930. This is in accord with the jurisprudence recognizing that once a party has formally raised the issue of abandonment, actions taken to defend the case pending a final ruling on the claim of abandonment will not serve to revive an abandoned claim. See Compensation Specialties, L.L.C., 6 So.3d at 279; Slaughter, 931 So.2d at 398.

The relevant actions in the present case are not limited to a party’s cooperation in the scheduling of a deposition or the attendance of a deposition after the party formally asserted the plea of abandonment by filing a motion to dismiss. Here, counsel for the City-Parish attended the deposition, which took place at his office, and he did not file the motion to dismiss until approximately ten months later. Moreover, the deponent was the City-Parish’s expert witness. By allowing, then attending, the deposition of its own expert witness, without objection, the City-Parish voluntarily participated in formal discovery that allowed Smuggy’s to obtain specific information from the expert concerning his opinions, qualifications, | iaand methodology. Much like the filing of answers to interrogatories, the production of that information through a deposition is a step that facilitates the judicial resolution of the dispute on the merits. See Enserch Corporation, 559 So.2d at 789 (In a claim seeking additional compensation under Section 48:452.1A, the court held that the “filing of the detailed answers to interrogatories by plaintiff served to facilitate judicial resolution of each dispute on -the merits and exhibited a willingness to achieve judicial resolution of the dispute.”)

As pointed out by Smuggy’s, Articles 561B and 1446D provide that “the taking of a deposition” is a step in the prosecution or defense of an action. While we recognize that the City-Parish’s counsel did not ask the witness any questions and, therefore, did not “take” the deposition, his formal presence at the deposition on behalf of his client, without any objection or reservation of rights, can only be construed as an expression of the City-Parish’s willingness or consent to achieve judicial resolution of the dispute. Finding that action to be inconsistent with the intent to treat the case as abandoned, we hold that the City-Parish waived the right to plead abandonment of Smuggy’s claim for additional compensation by attending the deposition of its own expert witness. See True Gospel of Jesus Christ Church Ministry v. Doucette, 08-0634 (La.App. 4 Cir. 11/19/08), 999 So.2d 795, 799 (noting that a party “waived its right to plead abandonment when it produced its client ... for [a] deposition”). Therefore, the trial court committed legal error in finding that the abandonment period did not recommence on January 18, 2013, the date of Lipscomb’s deposition.

CONCLUSION

We reverse the December 2, 2013 judgment of the trial court and remand for further proceedings. Costs of this appeal in the amount of $527.00 are assessed to the City of Baton Rouge and the Parish of East Baton Rouge.

REVERSED AND REMANDED.

PARRO, J., concurs and assigns reason.

McDONALD, J., concurs for the reasons assigned by Judge PARRO.

PARRO, J.,

concurring.

11While I believe the dissenting opinion in State Through Department of Highways v. Enserch Corporation, 559 So.2d 787 (La.App. 1st Cir.1990), writ denied, 567 So.2d 85 (La.1990) was correct, I concur in the result in this case, because our court is bound by the decision of the majority in that case.

Accordingly, I respectfully concur in the result.

      . Although Louisiana Revised Statute 48:441 expressly provides a “quick taking” mechanism for expropriation by the Department of Transportation and Development, a political subdivision is also entitled to utilize the procedure pursuant to Louisiana Revised Statutes 33:1321-1337. See City of Baton Rouge v. Johnca Properties, L.L.C., 00-2524 (La.6/1/01), 794 So.2d 766, 772-73; City of Baton Rouge v. F & K Investments, LLC, 13-0501 (La.App. 1 Cir. 11/1/13), 135 So.3d 760, 763.

      . The only documents filed in the suit record after June 21, 2006, and before Lipscomb’s deposition were three motions to withdraw or enroll as counsel for Smuggy's, which are not considered steps in the prosecution or defense of the action. See Chevron Oil Company v. Traigle, 436 So.2d 530, 532-533 (La.1983); Compensation Specialties, LLC v. New England Mutual Life Insurance Company, 08-1549 (La.App. 1 Cir. 2/13/09), 6 So.3d 275, 280, writ denied, 09-0575 (La.4/24/09), 7 So.3d 1200.

      . The waiver exception is based on the well-established rule that prescription can be interrupted by acknowledgment, and the abandonment period has been described as "a form of liberative prescription.” See Clark, 785 So.2d at 787; Porter, 771 So.2d at 295. In Clark, the supreme court held that a waiver by acknowledgment can occur before the accrual of the abandonment period and cause the period to begin anew. Clark, 785 So.2d at 789. The supreme court previously recognized that when such actions occur after the accrual of the abandonment period, the waiver concept is more similar to "renunciation” of prescription under Louisiana Civil Code article 3449. See Chevron Oil Company, 436 So.2d at 535, n. 4 (citing former La. Civ.Code arts. 3460 and 3461). Although renunciation is subject to stringent proof requirements, see Geiger v. State ex rel. Department of Health and Hospital, 01-2206 (La.4/12/02), 815 So.2d 80, 86 ("renunciation must be clear, direct, and absolute”), the court in Clark stated that "the same standard for determining if action of the defendant results in waiver and thereby an interruption of abandonment should apply regardless of whether the conduct occurred before or after the abandonment period elapsed.” Clark, 785 So.2d at 789. Cf. Satterthwaite, 943 So.2d at 393, n. 4 (describing the foregoing statement in Clark as dicta); Slaughter v. Arco Chemical Company, 05-0657 (La.App. 4 Cir. 4/26/06), 931 So.2d 387, 392-394 (questioning Clark for disregarding the distinction between acknowledgment and renunciation but, in accordance with the court’s directive, applying the waiver-by-acknowl-edgement standard for determining whether post-abandonment actions constituted a waiver of the abandonment). In accordance with the supreme court’s apparent directive in Clark as well as subsequent jurisprudence from this court applying Clark’s standard to determine whether post-abandonment actions recommenced the abandonment period, we decline to apply the more stringent proof requirements of renunciation to determine the effect of the City-Parish’s post-abandonment actions in this case. See Jackson v. Moock, 08-1111 (La.App. 1 Cir. 12/23/08), 4 So.3d 840, 844-845; Tessier v. Pratt, 08-1268 (La.App. 1 Cir. 2/13/09), 7 So.3d 768, 772-773; Compensation Specialties, L.L.C, 6 So.3d at 284; Phillips v. Conrad Industries, Inc., 07-2035 (La.App. 1 Cir. 6/6/08), 2008 WL 2567654, writ denied, 08-1554 (La.10/10/08), 993 So.2d 1287.

      . For prior text of Article 3519 and related discussion, see Clark, 785 So.2d at 787-788.