text:
    STATE ex rel. Robbreion GREEN v. STATE of Louisiana.
    No. 2013-KH-2805.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Green, Robbreion; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 10-2258; to the Court of Appeal, Fifth Circuit, No. 13-KA-238.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Roland David THOMPSON v. STATE of Louisiana.
    No. 2013-KH-2807.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Thompson, Roland David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Richland, 5th Judicial District Court Div. C, No. F-2001-250; to the Court of Appeal, Second Circuit, No. 48927-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. John CAUSEY v. STATE of Louisiana.
    No. 2013-KH-2808.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Causey, John; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 03-98-0851; to the Court of Appeal, First Circuit, No. 2013 KW1446.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. John Howard SCOTT v. STATE of Louisiana.
    No. 2013-KH-2809.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Scott, John Howard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 0-09-0962; to the Court of Appeal, First Circuit, No. 2013 KW1161.

Denied.


text:
    STATE ex rel. Melvin JOHNSON v. STATE of Louisiana.
    No. 2013-KH-2834.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Johnson, Melvin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 281,054; to the Court of Appeal, Second Circuit, No. 48,-945-KH.

Denied.


text:
    STATE ex rel. David LANDOR v. STATE of Louisiana.
    No. 2013-KH-2835.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Landor, David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. H, No. 87CR55245; to the Court of Appeal, Third Circuit, No. KH 13-00839.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Gary BOUDREAUX v. STATE of Louisiana.
    No. 2013-KH-2836.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re State of Louisiana; Boudreaux, Gary; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. C, No. 22744; to the Court of Appeal, Third Circuit, No. KH 13-00506.

Denied.

KNOLL, J., recused.


text:
    STATE ex rel. Edmond D. SPENCER v. STATE of Louisiana.
    No. 2013-KH-2840.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Spencer, Edmond D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, No. 96-CR1-064076; to the Court of Appeal, First Circuit, No. 2013 KW 1119.

Denied. La.C.Cr.P. art. 930.8; State ex rel Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Michael WASHINGTON v. STATE of Louisiana.
    No. 2013-KH-2846.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Washington, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. J, No. 94-CR8-57525; to the Court of Appeal, First Circuit, No. 2013 KW 1375.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

WEIMER, J., recused.


text:
    STATE ex rel. Kevin WILLIAMS v. STATE of Louisiana.
    No. 2013-KH-2851.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Williams, Kevin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 456515; to the Court of Appeal, First Circuit, No. 2013 KW 1232.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; see also State ex rel. Hall v. State, 99-0326 (La.9/24/99), 871 So.2d 1071.


text:
    STATE ex rel. William D. HOBBS v. STATE of Louisiana.
    No. 2013-KH-2853.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Hobbs, William D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 09-F-003291, 09-F01154; to the Court of Appeal, Second Circuit, No. 48,943-KH.

Denied.


text:
    STATE ex rel. Quantrell KELSON v. STATE of Louisiana.
    No. 2013-KH-2856.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Kelson, Quantrell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 436-479; to the Court of Appeal, Fourth Circuit, No. 2013-K-1474.

Denied.


text:
    STATE ex rel. Donald WILLIAMS v. STATE of Louisiana.
    No. 2013-KH-2867.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Williams, Donald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 306-606; to the Court of Appeal, Fourth Circuit, No. 2013-K-1499.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Edward JOHNSON v. STATE of Louisiana.
    No. 2013-KH-2866.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Johnson, Edward; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 95-6759; to the Court of Appeal, Fifth Circuit, No. 13-KH-86S.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Cherahkei PARKER v. STATE of Louisiana.
    No. 2013-KH-2868.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Parker, Cherahkei; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 03-09-0334; to the Court of Appeal, First Circuit, No. 2013 KA 0593.

Denied.


text:
    STATE ex rel. Benjamin HARRIS v. STATE of Louisiana.
    No. 2013-KH-2884.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Harris, Benjamin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. C-98-1742A; to the Court of Appeal, Third Circuit, No. KH 13-00885.

Denied.


text:
    STATE ex rel. Jeffrey STEWART v. STATE of Louisiana.
    No. 2013-KH-2888.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Stewart, Jeffrey; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 281-875.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


author: JOHNSON, C.J.,

text:
    STATE ex rel. Rodney J. TOLLIVER v. STATE of Louisiana.
    No. 2013-KH-2893.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Tolliver, Rodney J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, No. 101950; to the Court of Appeal, Third Circuit, No. KH 13-00930.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S —, 134 S.Ct. 2663,189 L.Ed.2d 214 (2014).

JOHNSON, C.J.,

would grant. In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


text:
    STATE ex rel. Michael FASOLA v. STATE of Louisiana.
    No. 2014-KH-0562.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Fasola, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. D, No. 01-378; to the Court of Appeal, Fifth Circuit, No. 14-KH-18.

Denied. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, — U.S.-, 134 S.Ct. 2663,189 L.Ed.2d 214 (2014).

JOHNSON, C.J.,

would grant. In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. In my view, Miller announced a new rule of criminal procedure that is substantive, and consequently should apply retroactively.


text:
    STATE ex rel. Early D. CLARK v. STATE of Louisiana.
    No. 2013-KH-2857.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Clark, Early D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tensas, 6th Judicial District Court Div. A, No. 74,462; to the Court of Appeal, Second Circuit, No. 48,-941-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Bertram YOUNG v. STATE of Louisiana.
    No. 2013-KH-2847.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Young, Bertram; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 332025; to the Court of Appeal, First Circuit, No. 2013 KW 1412.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Tyrone BANKS. State of Louisiana v. Tony M. Banks.
    No. 2014-KK-1601.
    Supreme Court of Louisiana.
    Aug. 1, 2014.
   In re Banks, Tony M.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div., No. 00-814, 00-823, 00-824, 00-1231 AND 00-1232; to the Court of Appeal, Third Circuit, No. KW 14-00645 C/W 14-00646.

Not considered. Not timely filed. See Supreme Court Rule X, § 5; K.A.E.M. v. J.M.C., 08-1171 (La.6/20/08), 983 So.2d 1259.


text:
    STATE of Louisiana v. Dannie Joseph HEBERT.
    No. 2014-KK-1036.
    Supreme Court of Louisiana.
    Aug. 1, 2014.
   In re Hebert, Dannie Joseph; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, Lafayette City Court, No. DT2012-00875; to the Court of Appeal, Third Circuit, No. KW 14-00438.

Denied.


text:
    STATE of Louisiana v. Jason M. REEVES.
    No. 2014-KP-1591.
    Supreme Court of Louisiana.
    Aug. 4, 2014.
   In re Reeves, Jason M.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 20179-01.

Stay denied. Writ denied.


text:
    Russ HERMAN, et al. v. CITY OF NEW ORLEANS, et al.
    No. 2014-CC-1671.
    Supreme Court of Louisiana.
    Aug. 6, 2014.
   In re Herman, Russ et al.; Herman, Sandra; Lengsfield Lofts Condo Owners’ Association Inc.; Rubenstein, Joshua;— Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2014-00896; to the Court of Appeal, Fourth Circuit, No. 2014-C-0779.

Stay denied; writ denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana in the Interest of K.C.C.
    No. 2014-CJ-1659.
    Supreme Court of Louisiana.
    Aug. 6, 2014.
   In re T.T.; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish Juvenile Court, No. 2014-TP-5; to the Court of Appeal, Fifth Circuit, No. 14-C-515.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Curtis HAWTHORNE.
    No. 2014-KK-1696.
    Supreme Court of Louisiana.
    Aug. 8, 2014.
   In re Hawthorne, Curtis; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 517-980; to the Court of Appeal, Fourth Circuit, No. 2014-K-0829.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Curtis HAWTHORNE.
    No. 2014-KK-1702.
    Supreme Court of Louisiana.
    Aug. 10, 2014.
   In re Hawthorne, Curtis; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 517-890; to the Court of Appeal, Fourth Circuit, No. 2014-K-08S9.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Antonio LOFTON.
    No. 2014-KD-1716.
    Supreme Court of Louisiana.
    Aug. 12, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 517-787; to the Court of Appeal, Fourth Circuit, No. 2014-K-0847.

Stay denied. Writ denied.


text:
    Alisha Nicole DIXON (Deceased), Myra Engrum, individually and o/b/o Jeremiah Dixon v. STATE of Louisiana through DEPARTMENT OF HEALTH AND HOSPITALS, et al.
    No. 2014-CC-1177.
    Supreme Court of Louisiana.
    Aug. 12, 2014.
   In re Corbello, MD, Jesse; Gamble, MD, Lisa L.; Health Care Services Division D/B/A Earl K. Long Hospital; Johnson, MD, Temetra; Robinson, MD, Dale C.; State of Louisiana through Department of Health and Hospitals, et al.; Varges, MD, Juan; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 577438; to the Court of Appeal, First Circuit, No. 2014 CW 0476.

Denied.


text:
    MIDLAND FUNDING, LLC v. Janet ALBARADO.
    No. 2014-CC-1537.
    Supreme Court of Louisiana.
    Aug. 13, 2014.
   In re Midland Funding, LLC; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Jefferson, Second Parish Court, No. 111-316; to the Court of Appeal, Fifth Circuit, No. 14-C-391.

Denied.


text:
    STATE ex rel. Tyrone LARTIGUE, Jr. v. STATE of Louisiana.
    No. 2013-KH-2810.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Lartigue, Jr., Tyrone; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 131906; to the Court of Appeal, Third Circuit, No. KH 13-00505.

Denied.


text:
    Andrea HALL v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2013-CI-2906.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Hall, Andrea; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 613-628; to the Court of Appeal, First Circuit, No. 2013 CA 0053.

Denied.


text:
    STATE of Louisiana v. Adam R. HERPIN.
    No. 2013-K-2912.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Herpin, Adam; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court; to the Court of Appeal, Third Circuit, No. CA 13-295.

Denied.

KNOLL, WEIMER and HUGHES, JJ., would grant.


text:
    STATE ex rel. Jerrod A. WILSON v. STATE of Louisiana.
    No. 2013-KH-2966.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Wilson, Jerrod A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. O, No. CR-1883-96; to the Court of Appeal, Third Circuit, No. KH 13-01201.

Denied.


text:
    STATE ex rel. Curtis LILLY v. STATE of Louisiana.
    No. 2013-KH-2967.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Lilly, Curtis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 10-06-0179; to the Court of Appeal, First Circuit, No. 2013 CW 1424.

Denied.


text:
    STATE ex rel. Michael RAVY v. STATE of Louisiana.
    No. 2013-KH-2968.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Ravy, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 11-WFLN-267; to the Court of Appeal, First Circuit, No. 2013 KA 0297.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2013-KH-2988.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Castillo, Vincent Mark; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 12-270; to the Court of Appeal, Fifth Circuit, No. 13-KA-0552.

Denied.


text:
    STATE ex rel. Arthur KENNEDY v. STATE of Louisiana.
    No. 2013-KH-2991.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Kennedy, Arthur; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, Nos. 127,664, 127,664A; to the Court of Appeal, Second Circuit, No. 48,744-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351.


text:
    STATE ex rel. Harold D. BROWN v. STATE of Louisiana.
    No. 2013-KH-2997.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Brown, Harold D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Desoto, 42nd Judicial District Court Div. B, No. 1020953; to the Court of Appeal, Second Circuit, No. 47,-050-KA.

Denied.


text:
    STATE ex rel. Ronald POINDEXTER v. STATE of Louisiana.
    No. 2013-KH-2998.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Poindexter, Ronald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 556002; to the Court of Appeal, First Circuit, No. 2013 KW 1236.

Denied.


text:
    STATE ex rel. Rudolph ELLIS, Jr. v. STATE of Louisiana.
    No. 2013-KH-2999.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Ellis Jr., Rudolph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. C, No. 81,146-170; to the Court of Appeal, Third Circuit, No. KH 13-01076.

Denied.


text:
    STATE ex rel. Johnny HOYT v. STATE of Louisiana.
    No. 2013-KH-3009.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Hoyt, Johnny; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 03-CR-785; to the Court of Appeal, First Circuit, No. 2013 KW 1283.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Arthur Lee BROWN v. STATE of Louisiana.
    No. 2013-KH-3010.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Brown, Arthur Lee; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 123,619; to the Court of Appeal, Second Circuit, No. 48,-876-KH.

Denied.

VICTORY, J., recused.


text:
    STATE ex rel. Alfred S. FLEMINGS v. STATE of Louisiana.
    No. 2013-KH-3011.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Flemings, Alfred S.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 02-4428; to the Court of Appeal, Fifth Circuit, No. 13-KH-868.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351.


text:
    STATE ex rel. Steven SMITH v. STATE of Louisiana.
    No. 2013-KH-3013.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Smith, Steven; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. H, No. 88 CR-56482; to the Court of Appeal, Third Circuit, No. KH 13-00750.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351.


text:
    STATE ex rel. Legregory Earl DAVIS a/k/a Legorgy Earl Davis. v. STATE of Louisiana.
    No. 2014-KH-0025.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Legregory Earl Davis a/k/a Legor-gy Earl Davis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 232,889; to the Court of Appeal, Second Circuit, No. 48930-KH.

Denied.


text:
    STATE ex rel. Ereedius GROSS v. STATE of Louisiana.
    No. 2014-KH-0027.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Gross, Ereedius; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. F, No. 90413; to the Court of Appeal, First Circuit, No. 2013 KW1376.

Denied.


text:
    STATE ex rel. Dennis PIERCE v. STATE of Louisiana.
    No. 2014-KH-0029.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Pierce, Dennis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. 0, No. 10-4995; to the Court of Appeal, Fifth Circuit, No. 13-KH — 941.

Denied.


text:
    STATE ex rel. Wilbert KELLY, Jr. v. STATE of Louisiana.
    No. 2014-KH-0033.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Kelly Jr., Wilbert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. B, No. 03-CR-898; to the Court of Appeal, First Circuit, No. 2013 KW1476.

Denied.


text:
    STATE ex rel. Keith D. KIRK v. STATE of Louisiana.
    No. 2014-KH-0034.
    Supreme Court of Louisiana.
    Sept. 12, 2014.
   In re Kirk, Keith D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 491-743; to the Court of Appeal, Fourth Circuit, No. 2013-K-1556.

Denied.


author: DRAKE, J.

text:
    OUR LADY OF the LAKE ROMAN CATHOLIC CHURCH, MANDEVILLE, Louisiana v. CITY OF MANDEVILLE, PLANNING AND ZONING COMMISSION.
    No. 2013 CA 0837.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 3, 2014.

      Joseph C. Chautin, III, Mark A. Balkin, Elise M. Stubbe, Mandeville, Louisiana, Howard E. Sinor, Jr., Nina Wessel English, Paul B. Simon, New Orleans, Louisiana, Chadwick W. Collings, Thomas
    Schneidau, Covington, Louisiana, for Plaintiff/Appellant Our Lady of the Lake Roman Catholic Church, Mandeville, Louisiana.
    Lloyd N. Shields, Shailendra U. Kulkar-ni, New Orleans, Louisiana, David E. Walker, Edward J. Deano, Jr., Mandeville, Louisiana, for Defendant/Appellee City of Mandeville, Planning and Zoning Commission.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   DRAKE, J.

1 ?The property owner, Our Lady of the Lake Roman Catholic Church, Mandeville, Louisiana (“OLL”), appeals a judgment affirming an action of the City of Mandeville Planning and Zoning Commission (“Zoning Board”), which denied OLL’s application for a zoning permit. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

OLL owns property located in the City of Mandeville’s (“City”) “Old Mandeville” business district. Currently, the OLL campus includes a sixty-year-old church building, school buildings, a multi-purpose facility, an athletic field, administrative and service auxiliary buildings, a rectory, and parking lots. Pursuant to the City’s Comprehensive Land Use Regulation Ordinance (“CLURO”), the property owned by OLL is zoned “B-3 Old Mandeville Business District,” a mixed business and residential district that also includes institutional and governmental uses. For the uses contemplated by OLL, which include religious assembly and educational facilities, the B-3 district permits a “Z-Zoning permit use — [a] use permitted-conditionally in the [B — 3] district with issuance of a zoning permit by the zoning board .. .”.

In 1999, following the submission and review of its site plan, OLL obtained a permit from the Zoning Board to construct two buddings on its campus: a multipurpose facility (Chotin Center) and a building to replace the existing library and classroom building (Parish Life Center). In the years following the additions of the buildings approved by that permit, OLL experienced expanded church membership and a high volume of attendance at its weekly services. To |saccommodate churchgoers, OLL holds mass in the multipurpose facility, as well as in the church. After studying the feasibility of expanding the existing church building, OLL decided to build a new, larger church budding to accommodate its growth. In 2011, OLL completed design and construction plans for the new church. On June 30, 2011, OLL filed an application for a zoning permit with the City that sought to amend its previously-issued 1999 zoning permit by expanding, reconfiguring, and modifying the development site for construction of its new church budding, additional parking lots, and school facilities.

After the filing of OLL’s application, the City’s Design Review Committee held a design review session on July 22, 2011. Thereafter, the more formal process of considering the application under the CLURO’s site plan review process began. After advertising in accordance with law, the Zoning Board held public hearings on this permit application on July 26, August 9, September 7, and October 5, 2011. At the October 5, 2011 hearing, the Zoning Board denied OLL’s zoning permit application and provided reasons for the denial orally at the meeting, as well as in a decision letter dated October 14, 2011. The Zoning Board based its denial of OLL’s application on seventeen considerations. Further, after concluding that OLL had not been completely complying with the 1999 permit, the Zoning Board revised portions of the 1999 permit relative to building use to allow for the continued use of various buildings that were otherwise in violation of the 1999 permit provisions; however, the Zoning Board directed OLL’s compliance with those provision of the 1999 permit relative to the loading and unloading of buses and students, and to parking.

Following the decision of the Zoning Board, OLL filed a petition for a writ of certiorari with the district court, seeking an order declaring .that the Zoning JjBoard’s denial of its application for a zoning permit was null and granting the requested permit. The district court heard arguments on April 19, 2012, and took the matter under advisement. By judgment dated October 10, 2012, the district court affirmed the Zoning Board’s denial of OLL’s application for a zoning permit, but vacated and set aside the Zoning Board’s order with regard to the imposition of new use restrictions and conditions on the 1999 zoning permit. In its written reasons for judgment, the district court held that OLL’s site plan failed to meet the CLURO’s minimum requirements relative to the number and location of parking spaces. OLL now appeals the judgment of the district court on judicial review of this administrative matter.

STANDARD OF REVIEW

On judicial review of a decision by an administrative agency, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Maraist v. Alton Ochsner Medical Foundation, 02-2677 (La.App. 1 Cir. 5/26/04), 879 So.2d 815, 817. Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the district court. Smith v. State, Department of Health and Hospitals, 39,368 (La.App. 2 Cir. 3/2/05), 895 So.2d 735, 739, writ denied, 05-1103 (La.6/17/05), 904 So.2d 701.

|BOur review of the district court’s judgment is governed by Louisiana Revised Statutes 49:964(G), which provides:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been 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.

LAW AND DISCUSSION

The first two assignments of error raised by OLL are related. First, OLL argues that the Zoning Board erred in following the requirements of the CLURO when it evaluated OLL’s zoning permit application. OLL contends that the Zoning Board exceeded its limited jurisdiction in denying OLL’s zoning permit, arguing that the Zoning Board’s jurisdiction was strictly limited to a determination of whether OLL’s proposal met the established, objective criteria of the CLURO for a use “permitted by-right.” Second, OLL avers the Zoning Board erred by evaluating OLL’s zoning permit application using CLURO criteria for a conditional use or zoning variance, not a permitted use. OLL argues that the | (⅞Zoning Board arbitrarily and capriciously denied its application based on the personal opinions of board members and requirements not found in the CLURO. OLL also contends that the Zoning Board relied on the City’s Comprehensive Plan and B-3 Area Plan, which are not law. In order to address these errors assigned by OLL, we must determine whether the Zoning Board followed the criteria set forth in the CLURO in evaluating and denying OLL’s zoning permit application based on the zoning designation of the property and what uses are permitted therein by the CLURO.

Zoning is a general plan designed to foster improvement by confining certain classes of buildings and uses of property to certain localities. The purpose of zoning is to reduce or eliminate the adverse effects that one type of land use might have on another. Jenkins v. St Tammany Parish Police Jury, 98-2627 (La.7/2/99), 736 So.2d 1287, 1290. Article VI, Section 17 of the Louisiana Constitution gives local governments broad powers to adopt regulations for land use, zoning, and historic preservation. It provides:

Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures. Existing constitutional authority for historic preservation commissions is retained.

Louisiana Revised Statutes 33:4721 also confers upon local governments the authority to enact zoning regulations. It states, in pertinent part:

For the purpose of promoting health, safety, morals, or the general welfare of the community, the governing authority of all municipalities may regulate and restrict the height, number of stories, and size of structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of the buildings, structures, and land for trade, industry, residence, or other purposes; provided that zoning ordinances enacted by the governing authority of municipalities or the acts of the zoning commission, board of adjustment as herein provided for, or zoning administrator shall be subject to judicial preview on the grounds of abuse of discretion, unreasonable exercise of the police powers, an excessive use of the power herein granted, or the denial of the right of due process, provided, further, that the right of judicial review of a zoning ordinance shall not be limited by the foregoing.

In order to exercise these zoning powers, the legislative body of the municipality must appoint a zoning commission. La. R.S. 33:4726(A). The function of the zoning commission is to propose to the legislative body of the municipality a set of recommendations concerning the boundaries of zones and the regulations and restrictions to be enforced therein. If a planning commission exists, that commission automatically becomes the zoning commission. La. R.S. 3S:4726(C). When the planning commission serves these dual roles, it must hold separate meetings and keep separate records concerning its function as the zoning commission. La. R.S. 33:106(D); King v. Caddo Parish Comm’n, 97-1873 (La.10/20/98), 719 So.2d 410, 417; see also Jenkins, 736 So.2d at 1291. The zoning commission must give notice to the public and hold public hearings on proposed recommendations before they can be transmitted to the legislative body of the municipality. Once the legislative body receives the recommendations of the zoning commission, it must conduct a hearing on the proposed recommendations and give the public adequate notice of the hearing. La. R.S. 33:4724(B); La. R.S. 33:4726(A).

Zoning regulations must be uniformly applied within each district or zone of the municipality. La. R.S. 33:4722(C); Jenkins, 736 So.2d at 1291 (applying La. R.S. 33:4780.41, a parallel statute for parishes). Such regulations and procedures must be construed in favor of the use proposed by the owner. D'Argent Properties, LLC v. City of Shreveport, 44,457 (La.App. 2 Cir. 6/24/09), 15 So.3d 334, 338, writ denied, 09-1726 (La.11/6/09), 21 So.3d 308, citing Wright v. DeFatta, 244 La. 251, 152 So.2d 10 (1963); City of West Monroe v. Ouachita Ass’n for Retarded Children, 402 So.2d 259 (La.App. 2d Cir.1981). The actions of a|szoning commission will not be disturbed on judicial review unless the court finds that they were plainly and palpably unreasonable, arbitrary, an abuse of discretion, or an unreasonable exercise of police power. La. R.S. 33:4726; D’Argent Properties, 15 So.3d at 338; King, 719 So.2d at 418; see also Jenkins, 736 So.2d at 1291. The test of whether a zoning board’s action is arbitrary and capricious is whether the action is reasonable under the circumstances. King, 719 So.2d at 418.

Pursuant to the authority granted to local governments, the City adopted the CLURO, which governs the building of all structures and use of all land within the incorporated area of the City. No structure or land may be used, erected, reconstructed, converted, moved, or structurally altered unless in conformity with the regulations as set forth in the CLURO. As stated, the property owned by OLL is located in the B-3 Old Mandeville Business District. OLL uses its property for religious assembly and education facilities. In accordance with the Table of Permitted Uses by Zoning District, the land use classification for Public and Private Primary Education, Secondary Education, and Religious Assembly require zoning permit approval. The use classification in the B-3 District for religious assembly and education facilities is “Z-Zoning permit use— [a] use permitted-eonditionally in the [B-3] district with issuance of a zoning permit by the zoning board in accordance with procedures as provided in Article 4, based on standards applicable to the use.” As noted in the Table of Permitted Uses by Zoning Districts, all uses requiring zoning permits must follow the site plan review procedure outlined in CLURO 4.2.3.

| ¡/Through its 1999 zoning permit application, OLL obtained the required approval of its site plan from the Zoning Board to undertake a building and renovation project, including replacing the then-existing library and school building (which resulted in the construction of the Parish Life Center), constructing a multi-purpose building (which resulted in the Chotin Center), and securing a variance from the Zoning Board as to the elevation at which these proposed constructions would be built. OLL’s zoning application is a request for a modification of the 1999 zoning permit (rather than an initial development permit request), as was highlighted by the Director of the Mandeville Department of Planning and Development at the July 26, 2011 public work session of the Zoning Board:

The procedural requirements for the site plan review approval shall apply to an application for modification, expansion or other changes in an approved site plan. The proposed site plan modifies and expands the existing site plan that was included on the zoning permit in case Z99-2-4 and that site plan was prepared by Piazza Architecture and Planning dated October 31st, 1998 and revised through February 12th of 1999. This proposed site plan that’s proposed under this case, you know, would replace the existing approved site plan and the conditions of the zoning permit approval, you know, as of 1999. This approval, the 1999 approval, allowed for the construction of the Chotin Center, which is a multipurpose building, the Parish Life Center and other improvements on the site.

The instant case is a situation in which OLL seeks a use permitted-conditionally, in the designated zoning district, with issuance of a zoning permit by the Zoning Board. This type of use is not a use by-right, nor is it a variance, special exception, administrative use, conditional use, or a request for a re-zoning. A use by-right should be presumptively valid and approved. See Wright, 152 So.2d at 14. For a board to deny such a use, the burden on the city is much higher. On judicial review, a board’s decision to deny a use by-right is subject to strict scrutiny, not the normal' standard of broad discretion applied to variance cases. D’Argent Properties, 15 So.3d at 340. If an owner seeks to alter the established | ^zoning, the commission or governing body must apply its great discretion and, as a result, the courts will not “take issue with the council.” See King, 719 So.2d at 416. Here, the use sought by OLL does not raise the Zoning Board’s discretion to “great,” as OLL’s use is not conditional, nor is OLL seeking a re-zoning of its property. Also, since the use is not permitted by-right, the Zoning Board’s discretion is not subject to strict scrutiny.

The Zoning Board is tasked by the CLURO with reviewing and evaluating OLL’s application in accordance with the procedure for obtaining a zoning permit, known as the site plan review procedure. The criteria for reviewing and evaluating a proposed site plan are set forth in CLURO 4.3.2.9, which requires the Zoning Board to review an applicant’s site plan for consistency with all applicable regulations of the CLURO. Prior to approving a site plan, the Zoning Board must find that the proposed use and site development, together with any modifications, will be compatible with the existing conforming or permitted uses on adjacent sites or sites across from the proposed development site; that any required modifications to the site plan are reasonable and are the minimum necessary to minimize potentially unfavorable impacts; and that the site plan complies with the CLURO. The use proposed by an owner in the B-3 district must at least meet the minimum requirements of CLU-RO 7.5.10.5-6, in addition to all other applicable regulations of the CLURO and other laws of the City and state. If the site plan meets the minimum requirements of the CLURO, a permit must be issued, but modifications can be required in order to mitigate any unfavorable impacts. If the site plan does not meet the minimum requirements of the CLURO, the Zoning Board, by right, In may deny the application. As the district court succinctly stated, “the plan either satisfies the objective criteria in the regulations or it doesn’t.”

The Zoning Board denied OLL’s permit application and cited seventeen reasons for its denial. Among the major concerns of the Zoning Board regarding OLL’s site plan were problems and inconsistencies with the CLURO-mandated calculation of on and off-site parking spaces on the OLL campus. In its reasons for denial, the Zoning Board stated:

There is no question ... that there are serious parking and traffic problems not only in the immediate area of the [c]hurch and school, but also stretching all the way to and extending down Lake-shore Drive for many blocks.
In regards to parking, the [Zoning Board] has been shown plans that show enough on-site and allowable (by code) adjacent street parking, to meet CLU-RO minimum requirements, assuming no major concurrent demands for [c]hurch and/or school functions.... Those CLURO minimum requirements would not be met in certain overlapping use conditions. Based on information given the [Zoning Board], it is difficult to assess how often various demand levels for on-street parking by the [e]hurch and school users will occur. This is made more difficult by the known fact that despite the availability of on-site parking spaces, most people park on the street if it is closer and more convenient for them. There is no question that parking is currently an issue in the area around the [e]hurch....
A further complication in the [Zoning Board’s] calculation of an appropriate number of on-site parking spaces is the uncertainty of the use of various buildings on the site. [OLL], for example, says that the old [c]hurch building will be deconsecrated and used for undefined miscellaneous functions at undefined times. For parking calculations, [OLL] assumes it is an “accessory structure” with no additional parking requirements. It is not realistic to assume that a building of approximately 7000 square feet that can hold 500 people for any number of purposes will not be taken into consideration by the [Zoning Board] when determining parking requirements....

The CLURO sets the number of required parking spaces based upon the principal use for the affected property. In OLL’s case, those uses are religious | ^assembly and education facilities. The CLURO requires parking for the education facilities to be the greater of either two parking spaces per classroom plus one parking space per faculty and administration staff member, or the required parking spaces for any auditorium or gymnasium facility on site. This formula results in 153 required parking spaces for OLL’s private school, including the Chotin Center. The parking required for the new church building is one parking space per each four fixed seats in the primary assembly area, or one parking space per fifty square feet of assembly areas where there are no fixed seats, but not less then twenty-parking spaces. This formula results in 257 required spaces for the new church building. OLL’s site plan provides for 385 parking spaces.

CLURO 9.1.1.4 authorizes off-street parking facilities for combinations of mixed uses. The total number of spaces required is the sum of the separate requirements for each- nonresidential use, if computed separately. CLURO 9.1.1.13 allows for an adjustment in the total parking requirements for separate uses located on the same site or adjoining sites; however, the parking spaces adjusted in this fashion must be located in a common, contiguous parking facility. In determining whether to approve an adjustment to the required parking spaces for a mixed-use development site, the Zoning Board must consider all relevant facts including: (i) the characteristics of each use and the differences in projected peak parking demand, including days or hours of operation; (ii) potential reduction in vehicle movements afforded by multipurpose use of the parking facility by employees, customers, or residents of the uses served; (iii) potential improvements in parking facility design, circulation, and access afforded by a joint parking ^facility; and (iv) the report and recommendation of the city planner. Thus, the CLURO’s regulatory scheme for a multi-use development site requires that the parking for each separate use be calculated separately, then added together to determine the minimum parking requirements. Consequently, the CLURO requires OLL’s site plan to provide for at least 410 parking spaces (153 school parking spaces + 257 new church building parking spaces). In addition, OLL proposes to use the old church building as a school assembly area. That use is similar to an auditorium, adding square footage to the school and requiring additional parking spaces.

OLL’s site plan has parking spaces over five city squares and numerous city lots. That is not consistent with the requirements for off-street parking facilities for a mixed-use development under the CLU-RO. The Zoning Board concluded that OLL’s site plan failed to meet the CLU-RO’s minimum requirements relative to the number of parking spaces and their location. Although the Zoning Board has the authority to adjust the number of spaces and their location, it declined to do so. Therefore, the Zoning Board’s denial of the zoning permit application was proper.

In its final assignments of error, OLL contends that the district court erred in failing to conduct a de novo review of the record, relied on arguments it alleges were not made before the Zoning Board in the public hearings, and acted arbitrarily and capriciously in failing to reverse the Zoning Board’s decision. As stated previously, on review of the district court’s judgment, we owe no deference to the factual findings or legal conclusions of the district court. Maraist, 879 So.2d at 817. Thus, we review the findings and decision of the administrative agency, here, the Zoning Board, and not the decision of the district court. Smith, 895 So.2d at 739. Therefore, these assignments of error are without merit.

| uDECREE

Therefore, based on our review of the record and considering the applicable law and rules governing these proceedings, we affirm the judgment of the district court on judicial review of this administrative matter. All costs of this appeal are cast to Plaintiff/Appellant, Our Lady of the Lake Roman Catholic Church, Mandeville, Louisiana.

AFFIRMED.

      . CLURO 7.2.1, 7.5.10.

      . CLURO 6.3.18, 6.3.19, 6.3.22.

      . CLURO 7.7, 7.7.1, 7.7.2.

      . The Zoning Board also approved OLL’s variance request to allow the proposed buildings to be constructed at a higher elevation.

      . OLL revised its application on August 31, 2011.

      . The public hearing scheduled on August 9, 2011, was a work session, wherein the Zoning Board took no vote on the application.

      . See CLURO 4.3.2.8(2); La. R.S. 33:4727(E).

      . The district court vacated the conditions imposed by the Zoning Board on OLL regarding its alleged non-compliance with its 1999 zoning permit, holding that the CLURO provides a procedure to institute an action to prevent the violation of a zoning permit. That procedure requires notice and the opportunity to be heard relative to the alleged violations. Here, the Zoning Board acted on the alleged violations as part of its consideration of OLL’s zoning permit application, which the district court held was improper. The City concedes that it did not cross-appeal that ruling, and it is therefore not before this court.

      . CLURO 7.7.2.

      . CLURO 1.2.2.

      . CLURO 6.3.18-19, 6.3.22, 7.7.

      . CLURO 4.1.1.

      . CLURO 7.7.1-2.

      . CLURO 4.3.2.1-2.

      . CLURO 4.3.2.10.

      . CLURO 7.5.

      . CLURO 9.1.4.

      . CLURO 9.1.

      . CLURO 9.1.4.

      . CLURO 9.1.1.13(a).

      .CLURO 9.1.1.13.1(b).


author: McDonald, j.

text:
    Majuangy EVANS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2013 CA 1345.
    Court of Appeal of Louisiana, First Circuit.
    April 25, 2014.
    Majuangy Evans, Jackson, Louisiana, Pro Se Appellant.
    Jonathan R. Vining, Baton Rouge, Louisiana, Attorney for Defendant/Appellee, Louisiana Department of Public Safety and Corrections.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McDonald, j.

I «.This appeal was filed by an inmate incarcerated at Dixon Correctional Institute (DCI), which is under the authority of the Louisiana Department of Public Safety and Corrections (DOC). The matter we are reviewing is a recommendation made by a commissioner of the Nineteenth Judicial District Court and adopted by the district court judge. For the following reasons, we affirm.

Appellant contends that some personal items of his were seized on January 2, 2011. He filed a request for corrective administrative remedy (CARP), numbered DCI-2011-400, on June 1, 2011. On June 17, 2011, his CARP was rejected, which, according to DOC was a final agency decision. Thereafter, petitioner filed a request for review with James LeBlanc, Secretary of the Department of Corrections. Louisiana Revised Statutes 15:1177, cited by both parties, provides that the review of final agency decisions are to be filed in the Nineteenth Judicial District Court, with some exceptions not applicable here. Receiving no response, petitioner resubmitted the request for review on July 11, 2011. Still receiving no response, on December 7, 2011, petitioner filed a suit for mandamus to compel the Secretary of DOC to answer appellant’s grievance.

Commissioner John Smart of the Nineteenth Judicial District reviewed appellant’s record and made a preliminary recommendation in which he recommended that appellant be given thirty days to amend his mandamus petition to an application for judicial review. This recommendation was adopted, and a judgment so ordering was signed by the district court on February 16, 2012. The appellant received a copy of the Commissioner’s recommendation and filed an | .¡application for judicial review. The Department of Corrections answered by filing a motion to dismiss for failure to timely seek judicial review.

A hearing was held before a commissioner, in accordance with the provisions of La. R.S. 15:1177A. Section A states that “Any offender who is aggrieved by an adverse decision ... may, within thirty days after receipt of the decision, seek judicial review of the decision in the Nineteenth Judicial District Court.” Further, section A(l )(a) provides: “Proceedings for review may be instituted by filing a petition for review in the district court within thirty days after receipt of the notice of the final decision by the agency....” Section A(b) provides who the proper defendant is in an action for judicial review, and it is not the Secretary of DOC. “The only proper party defendant is the Department of Public Safety and Corrections when seeking judicial review of an administrative decision.”

At the hearing on September 12, 2012, Commissioner Quintillis K. Lawrence (Commissioner Smart had retired) told the appellant that he would allow him to go forth with his complaint, that is his request for judicial review. Later the commissioner stated:

You get to argue that your property loss was wrong, that you should get compensation or your property — you get to ask for your relief. Without dealing with whether or not you can or cannot file the request for the court to hear it, 1 am allowing you to go forward with your request for judicial review
What 1 am telling you is that, that, not anything relating to whether or not it can be heard but the issue itself, the property loss. I am asking you to brief that. Not brief whether or not your case should even be heard. That’s done, (emphasis added.)

Appellant was ordered to submit a brief on the issue of the property loss.

It would certainly appear that Mr. Evans had prevailed on the question of timeliness. However, the commissioner’s report dated February 13, 2013, (and adopted by the court on April 4, 2013) did not even address the issue that was [^framed for Mr. Evans, “whether the property loss was wrong.” Rather, the commissioner addressed the question of timeliness and recommended dismissing the appeal for failure to file it timely. We believe the decision is correct, and we agree that La. R.S. 15:1177(A) is peremp-tive. Peremption may not be interrupted or suspended. Appellant’s cause of action was extinguished after the thirty day period provided in R.S. 15:1177A. The commissioner’s order that the appellant brief his property loss was of no effect because the request for judicial review was not timely. Peremptive statutes require that the time period stated in the statute can not be extended under any circumstances. Appellant was told to proceed with his claim when he had no chance of success. We can not understand why the commissioner and the court would so grossly mislead the appellant. If the commissioner had no intention of really considering the merits of Mr. Evans’ claim for the seized property, he should have ruled on the issue at the September 12, 2012, hearing. Instead, the commissioner required him to submit a brief on the issue, and then the commissioner ignored it.

We note that Mr. Evans’ original grievance was filed on June 1, 2011, complaining that his personnel effects were seized on January 2, 2011. The Louisiana Administrative Code (LAC) provides a 90-day time period in which to file such a complaint. Thus, he had until about April 3, 2011, to file his original complaint. From the beginning, Mr. Evans’ complaint was untimely. However, his notice of rejection listed “confiscated” as the reason for the rejection. It was here that this matter proceeded down the circuitous path that it took. The LAC lists ten reasons for which a grievance can be rejected. Property being “confiscated” is not listed. However, disciplinary matters and lost property claims are listed, as well as a time lapse of no more than 90 days between the event and the initial request. He claims the property was taken on January 2, 2011. His complaint was filed on June | fil) 2011, more than 90 days later. Mr. Evans’ claim was rejected. Regardless of the reason listed, the rejection began the tolling of time for him to file for judicial review. His suit was filed on December 7, 2011, well beyond the thirty days allowed.

For these reasons the judgment of the trial court is affirmed. We assess costs to the appellant, Mr. Majuangy Evans.

AFFIRMED.

      . The office of commissioner of the 19th JDC was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(0(5).

      . Louisiana Administrative Code, Title 22, Part I, Chapter 3, Subchapter A, Section 325 provides the applicable time limitations and procedures in prisoner complaints. If a complaint is accepted, it provides for a two-step process before the administrative remedies have been exhausted. However, if a complaint is rejected, that is a final agency decision.

      . If the grievance is for “lost” property, the time limitation is only 10 days.


author: McClendon, j.

text:
    Herbert M. GRAVES v. Linden BABIN, Mockler Beverage Company & XL Specialty Insurance Company.
    No. 2013 CA 1311.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.

      Mark D. Plaisance, Thibodaux, Louisiana, for Plaintiff/Appellee Herbert M. Graves.
    William J. Mitchell, II, Baton Rouge, Louisiana, for Intervenor/Appellant Law Offices of Spencer H. Calahan, L.L.C.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, j.

|2The intervenor in a personal-injury action seeking attorney fees appeals the judgment of the trial court and requests an increase in the amount of attorney fees awarded. The plaintiff answered the appeal, asserting that the attorney fees awarded were excessive or, alternatively, seeking attorney fees and costs for a frivolous appeal. For the following reasons, we affirm.

DISCUSSION

This matter arises out of a dispute over attorney fees between various counsel that represented the plaintiff, Herbert Graves, in a motor vehicle accident. After sustaining injuries in the accident on July 4, 2010, Mr. Graves initially retained the services of the Joe’l M. Freeman Law Firm, LLC (Freeman). Freeman represented the plaintiff from August 19, 2010 until November 12, 2010. On November 12, 2010, Mr. Graves terminated the services of Freeman and entered into a contract of employment with the Law Offices of Spencer Calahan, L.L.C. (Calahan). Five days later, on November 17, 2010, Mr. Graves signed a termination of services letter, which was faxed to Calahan. Cala-han argues, however, that, only hours later, Mr. Graves advised Calahan to disregard the termination letter and that he wanted Calahan to continue representing him in connection with his personal injury claim. Calahan asserts that it continued to represent Mr. Graves until April 29, 2011, when Calahan received another termination of services letter from Mr. Graves, again by fax. At that time, Mr. Graves again retained the services of Freeman and also hired the Murphy Law Firm, L.L.C. (Murphy) as co-counsel.

Thereafter, on May 4, 2011, Mr. Graves filed a petition for damages, asserting that he was injured as a result of the July 4, 2010 accident. On September 21, 2011, prior to an out-of-court settlement of Mr. Graves’ claim, Calahan filed a petition of intervention, asserting its entitlement to compensation for legal services performed on behalf of Mr. Graves on a quantum meruit basis and to litigation expenses incurred, together with legal interest and costs. The Rcase subsequently settled for $500,000.00, putting the 40% attorney fee, or $200,000.00, at issue.

Efforts to amicably split the total amount of attorney fees between Calahan, Freeman, and Murphy were not successful, and the trial on Calahan’s intervention was held on April 17, 2018. At the close of Calahan’s case-in-chief, Mr. Graves moved for an involuntary dismissal as to any claims for attorney fees by Calahan after November 17, 2010. The trial court granted the motion in favor of Mr. Graves dismissing all of Calahan’s claims for attorney fees from November 18, 2010, until April 29, 2011. At the conclusion of the trial, the trial court awarded Calahan expenses in the amount of $8,692.00. The trial court further awarded 95% of the $200,000.00 in attorney fees to Murphy and Freeman. The remaining 5% in attorney fees, in the amount of $10,000.00, was awarded to Calahan. A judgment to this effect was signed on May 6, 2013.

Calahan appealed, raising five assignment of errors. Four of the assignment of errors relate to the claim for attorney fees in the period between November 17, 2010, and April 29, 2011. In its remaining assignment of error, Calahan asserts that the award of only 5% of the total amount of attorney fees was unreasonable. Mr. Graves answered the appeal, asserting that the trial court’s award of 5% was excessive or, alternatively, seeking attorney fees and costs for a frivolous appeal.

^DISCUSSION

A trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Regions Bank v. Automax USA L.L.C., 02-1755 (La.App. 1 Cir. 6/27/03), 858 So.2d 593, 595, writ denied, 03-2131 (La.11/7/03), 857 So.2d 503. An attorney fee must be reasonable, and an analysis of the factors pertinent to a determination of reasonableness is fact intensive. At issue ultimately is the reasonable value of the services rendered and value received by the client. Id., 858 So.2d at 596.

Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge. See Rule 1.5(a) of the Rules of Professional Conduct; Silwad Two, L.L.C. v. I Zenith, Inc., 12-0282 (La.App. 1 Cir. 12/21/12), 111 So.3d 405, 411.

| BIn this matter, the trial court determined that the record established five days when Calahan was operating under an employment contract with Mr. Graves. However, the trial court recognized that Calahan continued to do work for Mr. Graves through April 29, 2011. The trial court determined, based on the testimony and evidence presented, that a lot of work performed by Calahan was done by staff, no pleadings were prepared or filed, and no litigation work was performed. The court found that Calahan did send correspondence to insurance companies and sent Mr. Graves to Dr. David J. Wyatt, an orthopedist. The trial court also considered the offer of settlement letter of April 29, 2011, prepared by Calahan, as well as Spencer Calahan’s testimony that between November 12, 2010, and November 17, 2010, he spent approximately five to six hours working on Mr. Graves’ claim. The trial court also noted Calahan’s inability to produce any other documents to support any further work performed by Calahan.

The court next considered the amount of work conducted by Freeman and Murphy on behalf of Mr. Graves. The court first noted Freeman’s representation of Mr. Graves for approximately three months between August 19, 2010, and November 12, 2010, after which Freeman was terminated. Thereafter, Freeman was retained under a new contract on April 29, 2011, and continued to represent Mr. Graves for an additional twenty-four months. The trial court noted that Joe’l Freeman testified that after researching the matter, she prepared and filed the petition; reviewed all responsive pleadings filed; participated in all discovery; spoke with most of the approximately fifteen doctors who examined Mr. Graves and reviewed their reports; attended the status and pretrial conferences; attended the deposition of Mr. Graves; got the matter ready for trial and for mediation, including the preparation of the voluminous medical exhibits; and participated in and successfully mediated the case for $500,000.00.

|fiThe trial court then considered Murphy’s participation in the case and stated that Murphy set up several doctor referrals for Mr. Graves; obtained and reviewed the medical records and reports; attended the status and pretrial conferences; prepared Mr. Graves for his deposition; worked on the Medicare set aside; prepared and had the case ready for trial; prepared for and participated in the mediation; and met with or spoke to Mr. Graves on a regular basis in the twenty-four to twenty-seven months that Murphy represented him.

The court then stated:

[E]ven if I consider the post-contract termination period of time by Mr. Cala-han, which includes the referral to Dr. Wyatt and the preparation of the April 29th, 2011 settlement demand, ... I think that a division of the fee in the amount of ninety-five percent to Mr. Murphy and Ms. Freeman and five percent to Mr. Calahan is an appropriate division of this fee.
[T]hat would be the best you could do, even if I considered all of that time.
I don’t think you met your burden of proving that you were entitled to anything more than that on the best case scenario.

Upon our thorough review of the record, we can find no abuse of the trial court’s discretion in its division of the attorney fees. We agree with the trial court that even were we to consider Calahan’s representation of Mr. Graves between November 17, 2010, and April 29, 2011, five percent of the $200,000.00 for a total of $10,000.00 in attorney fees is a reasonable award to Calahan. We simply cannot say that the amount awarded was an abuse of discretion.

We also find no merit in Mr. Graves’ answer to the appeal that the attorney fees were excessive. Further, we decline to make an award of attorney fees or costs to Mr. Graves in his alternative argument that this appeal does not present a substantial legal question. Although we have rejected Calahan’s arguments, we do not find them to be frivolous.

^CONCLUSION

For the foregoing reasons, we affirm the May 6, 2013 judgment of the trial court. Costs of this appeal are assessed to the Law Offices of Spencer H. Calahan, L.L.C.

MOTION GRANTED; JUDGMENT AFFIRMED.

      . Louisiana Code of Civil Procedure Article 1672B provides:
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

      . Mr. Graves filed a Motion for Leave to Substitute Corrected Appellee Brief and Answer to Appeal with this court. Mr. Graves' original appeal brief and answer to appeal refers to Peyton Murphy as the appellee rather than Herbert Graves. We grant the motion to correct and name Mr. Graves as the proper ap-pellee and allow the filing of the amended appellate brief and amended answer to appeal.

      . Rule 1.5(a) provides: A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1)the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

      . Calahan did attempt to introduce documentation reflecting work performed in this matter. However, the trial court did not allow the introduction of the time management log as it was not produced in discovery, and, at a hearing on a motion to compel discovery, the court was told that no such documentation existed. We find no abuse of the trial court’s discretion in refusing to allow the introduction of the documentation into evidence.

      . Louisiana Code of Civil Procedure Article 863B provides:
      Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
      (1)The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
      (2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
      (3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentia-ry support after a reasonable opportunity for further investigation or discovery.
      (4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.


text:
    Terry KIRK v. DEPARTMENT OF HEALTH AND HOSPITALS, Office for Citizens With Developmental Disabilities, Pinecrest Supports and Services Center.
    No. 2013 CA 1591.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.

      Ingrid F. Johnson Alexandria, Louisiana, for Plaintiff/Appellant Terry Kirk.

      William Coco Alexandria, Louisiana, for Defendant/Appellee Department of Health & Hospitals.
    Adrienne Bordelon, General Counsel, Department of State Civil Service, Baton Rouge, Louisiana, for Shannon S. Templet, Director, Department of State Civil Service.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, j.

| ¡¡Terry Kirk, a permanent-status civil service employee, appeals the denial of his appeal by the State Civil Service Commission (Commission). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Mr. Kirk was employed with the Department of Health and Hospitals (DHH), Office for Citizens with Developmental Disabilities (OCDD), Pinecrest Supports and Services Center (PSSC), as a Residential Services Specialist 6, when he was demoted to a Developmentalist, effective August 13, 2012. The demotion resulted in not only a title and responsibility demotion, but also a seven percent reduction in pay. This disciplinary action was taken by DHH for the charges of interfering with an investigation, failing to preserve and disclose evidence, and failing to comply with supervisory directives.

On September 8, 2012, Mr. Kirk appealed the disciplinary action to the Commission, and on December 3, 2012, a hearing on the appeal was held before a Commission referee. On May 30, 2013, after considering the testimony and exhibits, the referee rendered a decision on the three charges, concluding that DHH proved that Mr. Kirk interfered with an ongoing investigation. Finding legal cause for discipline and finding that demotion was commensurate with the offense, the referee denied the appeal. The decision of the referee became the decision of the Commission, and Mr. Kirk appealed the Commission’s decision, asserting that it was in error.

APPLICABLE LAW

In civil service disciplinary cases, the burden of proof is on the appointing authority to prove its case by a preponderance of the evidence. However, once that burden is met and disciplinary action is imposed, the state employee bears the burden of proving that the disciplinary action taken was arbitrary or capricious. Shortess v. Department of Public Safety & Corrections, 06-1532 (La.App. 1 Cir. 5/28/08), 991 So.2d 1067,1071.

[¡¡In reviewing a Commission decision, great deference is given to the factual determinations of the Commission, and an appellate court will not overturn those determinations in the absence of clear or manifest error. Aso, when evaluating the Commission’s determination as to whether the action is commensurate with the infraction, an appellate court should not modify the Commission’s order unless it is arbitrary, capricious, or an abuse of discretion. Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, 647. ‘Arbitrary or capricious” means the absence of a rational basis in the record for the action taken. Id.

Employees with permanent status in the classified civil service may be disciplined only for cause expressed in writing. LSA-Const. At. X, § 8(A). “Cause” for the discipline of such an employee includes conduct prejudicial to the public service involved or detrimental to its efficient operation. The employer must prove by a preponderance of the evidence that the employee’s conduct did, in fact, impair the efficiency and operation of the public service in which the employee is engaged. Shortess, 991 So.2d at 1071; Wopara v. State Employees’ Group Benefits Program, 02-2641 (La.App. 1 Cir. 7/2/03), 859 So.2d 67, 69.

In addition to having to show legal cause sufficient to warrant disciplinary action, the Commission also must impose disciplinary action commensurate with the infraction. Shortess, 991 So.2d at 1072-73. As noted earlier, in evaluating whether the disciplinary action imposed by the Commission is commensurate with the infraction, an appellate court should not modify the Commission’s action unless it is arbitrary, capricious,, or characterized by an abuse of discretion. Such action will be deemed arbitrary or capricious unless there is a real and substantial relationship between the improper conduct and the efficient operation of the public service. Bannister, 666 So.2d at 647; Shortess, 991 So.2d at 1073.

^DISCUSSION

In this matter, the referee made several findings of fact, which we summarize, as follows. PSSC is a residential facility for persons with serious mental and/or physical disabilities. Home #306 houses approximately twelve male residents. Mr. Kirk worked as the supervisor at Home # 306 for seventeen years. Mr. Kirk was Kevin Cloud’s direct supervisor for approximately three years, and they had known each other for ten years and had a friendly relationship.

On May 24, 2012, a resident of Home # 306 ransacked his room and accused an employee of hitting him in his face. It was not unusual for Home # 306 residents to allege abuse by PSSC employees. The following evening, while Mr. Kirk supervised the evening shift at Home # 306, Mr. Cloud, also working the evening shift at Home # 306, saw a knot on the resident’s forehead and asked him what happened. The resident replied that the employee did not cause the knot on his forehead and stated that he did it to himself. Mr. Cloud asked the resident to write down his statement, which he did, and gave it to Mr. Cloud.

Thereafter, the resident recanted his statement and told DHH investigators that Mr. Cloud forced him to write it. DHH removed Mr. Cloud from client care and reassigned him. Mr. Cloud was informed that he was under investigation for allegedly failing to report allegations of abuse or neglect of a PSSC resident.

On June 4, 2012, Mr. Cloud met with Susan Frey for an investigative interview about his failure to report. In the interview, he told Ms. Frey that he gave the resident’s written statement to Mr. Kirk. During the interview, Mr. Cloud received approximately eight text messages and/or telephone calls from Mr. Kirk on his cellular phone that he did not answer or respond to. After meeting with Ms. Frey, Mr. Cloud met with Alicia Urven, a social services supervisor and clients’ rights advocate. He told her that he had been uncomfortable receiving the text messages and telephone calls from Mr. Kirk | ¡-.during his interview with Ms. Frey. Ms. Urven suggested that Mr. Cloud return Mr. Kirk’s telephone call on speakerphone, which he did. During the call, Mr. Kirk told Mr. Cloud to “be careful what you tell the investigators because they are out to get Home # 306.”

On June 11, 2012, Mr. Cloud met with Ms. Frey again, and during this meeting, Mr. Cloud received several text messages and emails from Mr. Kirk on his telephone, to which he did not respond. Ms. Frey suggested that Mr. Cloud return Mr. Kirk’s call on speakerphone so she could record the conversation, and he did so. During the call, Mr. Cloud asked Mr. Kirk about the written statement and asked him if he ever found it and gave it to DHH. Mr. Kirk replied in the negative and told Mr. Cloud to me careful when talking to Ms. Frey. Mr. Kirk’s office was searched, but the statement was not found. Later on June 11, 2012, while supervising Home # 806, Mr. Kirk was hand-delivered a letter of suspension with pay pending the completion of the investigation into the allegations of abuse or neglect of the resident. The suspension letter also contained a directive not to go onto the PSSC grounds and not to have contact with PSSC employees

In its decision, the referee concluded that DHH failed to prove cause for discipline against Mr. Kirk regarding the charges of failing to preserve and disclose evidence and failing to comply with supervisory directives. However, in finding cause related to the charge of interfering with an investigation, the referee stated:

Mr. Kirk’s attempts to contact Mr. Cloud while Mr. Cloud was being interviewed during an investigation were entirely inappropriate. Both Ms. Urven and Ms. Pittman testified that PSSC employees are well aware that discussing matters pertaining to a pending investigation is not allowed. As a twenty-two year employee of the PSSC and supervisor who has been involved in numerous abuse/neglect investigations, especially at Home # 306, Mr. Kirk knew not to discuss matters related to an ongoing investigation, but he did so anyway. His warning to Mr. Cloud to be careful what he told the investigators “because they are out to get Home # 306.” is particularly disturbing, as he was Mr. Cloud’s direct supervisor and this comment certainly reveals Mr. Kirk’s intent to affect Mr. Cloud’s statements to the investigators, i.e. to interfere with the investigation. These actions by Mr. Kirk could have had an impact on the investigation, and thus they were detrimental to the state service. DHH has proved cause for discipline against Mr. Kirk with this charge.

1 ^Thereafter, in denying the appeal, the referee concluded:

Although DHH failed to prove all of the charges, it did prove that Mr. Kirk interfered with an ongoing investigation by discussing the matter with Mr. Cloud twice and by attempting to contact him numerous other times. This charge standing alone is legal cause for discipline and demotion is commensurate with the offense, particularly in view of the fact that Mr. Kirk was a supervisor with many years of experience and Mr. Cloud was his subordinate.

In this appeal, Mr. Kirk asserts that the Commission’s conclusion that DHH proved by a preponderance of the evidence that Mr. Kirk interfered with an ongoing investigation is incorrect. Mr. Kirk contends that he and Mr. Cloud had a close friendship, such that it would not have been unusual for Mr. Cloud to receive telephone calls from Mr. Kirk. Further, Mr. Kirk, as a pastor, provided spiritual counseling to Mr. Cloud; thus, Mr. Kirk contends, their close friendship indicated comfort and ease in their communications, and not the discomfort alleged by DHH. Mr. Kirk suggests that Mr. Cloud was placing the blame on him, as the accusation of abuse or neglect of a resident could have cost Mr. Cloud his job as well as possibly facing criminal charges for abuse.

Mr. Kirk asserts that the evidence presented does not support a finding that he interfered with an ongoing investigation. He alleges that DHH failed to prove that he in any way attempted to coach Mr. Cloud on what to tell or not tell investigators. Mr. Kirk argues that the evidence does not support the conclusion that his actions were done with the intent to exercise authority or influence over Mr. Cloud.

After a thorough review of the record, we find that the referee did not err in concluding that the disciplinary action taken was based on lawful cause and that Mr. Kirk’s interference in an ongoing investigation bore a real and substantial relation to the efficient and orderly operation of the public service in which he was engaged. We further consider the penalty of a demotion to Developmentalist, with the accompanying seven percent pay cut, to be 17commensurate with the infraction at issue. We find no manifest error in the factual determinations made by the referee and conclude that the decision to uphold the disciplinary action imposed was not arbitrary, capricious, or characterized by an abuse of discretion.

CONCLUSION

For the foregoing reasons, we cannot say that the Commission manifestly erred in finding legal cause to discipline Mr. Kirk or that its imposition of a demotion was arbitrary or capricious. Accordingly, the Commission’s May 30, 2013 decision is affirmed. Costs of this appeal are assessed to Mr. Kirk.

AFFIRMED.

      . Mr. Kirk also contends that DHH failed to prove that Mr. Kirk knew of an ongoing investigation before his June 11, 2012 suspension letter. Clearly, Mr. Kirk knew of an ongoing investigation, as he told Mr. Cloud on June 4, 2012, to "be careful what you tell the investigators because they are out to get Home #306.”


author: CRAIN, J.

text:
    Lorise M. NAQUIN, Lucy Nguyen and Grantly, LLC v. BOLLINGER SHIPYARDS, INC., Formerly Bollinger Machine Shop and Shipyard, Inc.
    No. 2013 CA 1638.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.

      Ralph R. Alexis, III, Jessica W. Hayes, Stephen B. Murray, Arthur M. Murray, Stuart H. Smith, Michael G. Stag, New Orleans, Louisiana, for Plaintiffs/Appel-lees, Lorise M. Naquin, Lucy Nguyen Na-quin, and Grantly, LLC.
    Robert S. Reich, Lawrence R. Plunkett, Jr., Michael T. Wawrzycki, Metairie, Louisiana, for Defendant/Appellant, Bollinger Shipyards, Inc., formerly Bollinger Machine Shop and Shipyard, Inc.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

|Jn this suit seeking to cancel a lease of immovable property, the lessee filed a re-conventional demand asserting that the plaintiffs’ suit was a disturbance of the lessee’s peaceful possession of the property. The trial court sustained an exception of no cause of action and dismissed the reconventional demand. We affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiffs, Lorise M. Naquin, Lucy Nguyen Naquin, and Grantly, LLC (collectively referred to hereinafter as “the Na-quins”), filed this proceeding seeking to cancel several leases of immovable property granted to Bollinger Shipyards, Inc. based upon allegations that Bollinger breached its obligation to act as a prudent administrator by causing environmental damage to the leased property. Bollinger’s response to the suit included a recon-ventional demand asserting that the “Na-quins’ act of filing and prosecuting this legal action against Bollinger, and assert-mg the right to cancel the [leases], implies a right of ownership in derogation of the provisions of the [leases], each of which provide Bollinger the exclusive right to renew said leases through 2087.” Bollinger further alleged that as a “result of the Naquins’ disturbance of Bollinger’s peaceful possession of the [leases], Bollinger has suffered actual damages, including but not limited to attorneys’ fees and court costs, the full extent of which will be shown at the trial of this matter.”

In response to the reconventional demand, the Naquins filed exceptions of prematurity and no cause of action contending, in pertinent part, that Bollinger failed to state a cause of action because it did not allege any eviction or physical acts by the Naquins that prevented the use and enjoyment of the leased property by Bollinger. In opposition to the exceptions, Bollinger maintained that the |sreconventional demand asserted a breach of the lessors’ warranty of peaceful possession under Louisiana Civil Code article 2700 based upon a disturbance in law as defined by Louisiana Code of Civil Procedure article 8659.

At the conclusion of the hearing of the exceptions, the trial court found that the Naquins’ suit was not a breach of the warranty of peaceful possession. The trial court recognized that Louisiana Civil Code article 2686 grants the lessor the right to seek dissolution of the lease if the lessee uses the thing in a manner that may damage it; however, if the enforcement of that right constitutes a disturbance, “then no landlord would ever be able to sue their tenant for anything.” The trial court concluded, “A lawsuit by a landlord under [Article] 2686 is not a disturbance as defined in Code of Civil Procedure Article 3659 in the third paragraph^] I don’t think it’s a disturbance in law.” In light of that ruling, the trial court found the exception’ of prematurity to be moot. A judgment was then signed that sustained the exception of no cause of action, dismissed Bollinger’s reconventional demand with prejudice, and declared the exception of prematurity to be moot.

Bollinger now appeals the judgment and assigns as error the granting of the exception of no cause of action, specifically contending that the trial court erred in finding that a “baseless lawsuit” cannot be a disturbance in law of a lessee’s peaceful possession and that a lessor cannot itself be responsible for breaching the lessee’s peaceful possession.

LAW AND ANALYSIS

The purpose of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged. Pierrotti v. Johnson, 11-1317 (La.App. 1 Cir. 3/19/12), 91 So.3d 1056, 1062. The exception is triable on the face of the pleading, and for the purpose of determining the issues raised by the exception, the well-pleaded facts must be accepted as true. Ourso v. Wal-Mart Stores, Inc., 08-p7804 (La.App. 1 Cir. 11/14/08), 998 So.2d 295, 298, writ denied, 08-2885 (La.2/6/09), 999 So.2d 785. Because the exception of no cause of action raises a question of law, and the district court’s decision is based solely on the sufficiency of the petition, review of the district court’s ruling on an exception of no cause of action is de novo. Scheffler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641, 647.

Bollinger’s reconventional demand seeks to enforce the warranty of peaceful possession set forth in Article 2700, which provides in pertinent part:

The lessor warrants the lessee’s peaceful possession of the leased thing against any disturbance caused by a person who asserts ownership, or right to possession of, or any other right in the thing.

As used in Article 2700, the term “disturbance” of possession is intended to have the same meaning as in Louisiana Code of Civil Procedure article. 3659. La. Civ.Code art. 2700, Revision Comment (e); Sheets Family Partners-Louisiana, L.T.D. v. Inner City Refuge Economic Development Corporation, 47,156 (La.App. 2 Cir. 6/20/12), 94 So.3d 964, 969.

Article 3659 distinguishes between a “disturbance in fact” and a “disturbance in law,” and defines the latter as follows:

A disturbance in law is the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right.

In reliance upon this definition, Bollinger contends that the Naquins’ suit seeking to cancel the leases is a disturbance in law under Article 3659 because the suit “implies the Naquins have a right of ownership in derogation” of the leases. Therefore, according to Bollinger, the suit constitutes a breach of the warranty of peaceful possession under Louisiana Civil Code article 2700.

| ^Bollinger’s argument ignores the fact that Article 3659’s definition of a disturbance in law expressly excludes “an action or proceeding [filed] adversely to the possessor of such property.” Citing that exception, our courts have consistently held that an eviction proceeding is not a disturbance that gives rise to a possessory action. Horrell v. Matthews, 10-1694 (La.App. 1 Cir. 5/6/11), 2011 WL 1941588 (unpublished opinion), writ denied, 11-1848 (La.11/4/11), 75 So.3d 925; Ciolino v. Castiglia, 446 So.2d 1366, 1371, n. 6 (La.App. 1 Cir.1984); Jackson v. Campco of Monroe, Inc., 623 So.2d 1380, 1383 (La.App. 2 Cir. 1993); Karst v. Ward-Steinman, 469 So.2d 440, 443 (La.App. 3 Cir.1985); Bodcaw Company v. Enterkin, 273 So.2d 325 (La.App. 3 Cir.1973).

In Jackson, a lessee in an eviction proceeding filed a reconventional demand requesting that the proceeding be enjoined because the eviction suit was a disturbance of the lessee’s possession of a leased residence. Jackson, 623 So.2d at 1383. After quoting Article 3659 and the pertinent exception for claims filed adversely to the possessor, the court of appeal found:

The problem with [the lessee’s] contention is that the sole and only disturbance alleged by him in the district court is the city court eviction suit. An eviction proceeding falls within the exception in Art. 3659 last emphasized above.
An eviction proceeding is simply not a “disturbance” which will serve as a basis for a possessory action....
[The lessee’s] ... reconventional demand patently [was] without any reasonable merit. The motion for a preliminary injunction in the district court to enjoin the city court eviction judgment was clearly not warranted by existing law or any extension thereof. Under the circumstances of this record and the arguments made in this court, we cannot find that the trial court abused its discretion in personally sanctioning [the lessee].

Jackson, 623 So.2d at 1383 (citations omitted).

Similarly, in Horrell, this court considered a possessory action filed by the occupant of a house who sought to enjoin an eviction proceeding. Horrell, 10-{1694ñ at p. 1, n. 2. In affirming the trial court’s dismissal of the possessory action, this court held:

When [the occupant] filed this possesso-ry action, there had been no “disturbance” in fact or in law that would serve as a basis for such an action. An eviction proceeding is not a disturbance that would give rise to a possessory action, See LSA-C.C.P. arts. 3658(3) and 3659; see also Jackson, 623 So.2d at 1383.... Therefore, we conclude, as did the trial court, that [the occupant] failed to allege facts that would form the basis of a possessory action.

Horrell, 10-1694 at p. 4. See also Karst, 469 So.2d at 443 (suit to enjoin eviction proceeding dismissed because eviction proceeding falls within the exception in Article 3659 and is not a disturbance); Bodcaw Company, 273 So.2d at 325 (reconventional demand asserting that trespass suit disturbed party’s possession failed to state cause of action because claim of trespass was asserted adversely in an action against alleged possessor and therefore was not a disturbance).

We find this well-settled law applicable to the present proceeding wherein Bollinger alleges that the Naquins’ suit to cancel the leases is a disturbance in law that breached the warranty of peaceful possession under Article 2700. The warranty of peaceful possession applies to a “disturbance” as that term is defined in Louisiana Code of Civil Procedure article 3659. La. Civ.Code árt. 2700, Revision Comment (e); Sheets Family Partners-Louisiana, L.T.D., 94 So.3d at 969. The Naquins’ suit to cancel the leases is an “action or proceeding [filed] adversely to” Bollinger, the lessee in possession of the property, so the suit is not a disturbance in law according to Article 3659. As the trial court correctly observed, any holding to the contrary would effectively divest the lessor of its right to dissolve a lease pursuant to Article 2686. If the mere filing of a suit by a lessor to dissolve a lease under Article 2686 constituted a disturbance of the lessee’s peaceful possession, a lessee could enjoin the proceeding (the purported “disturbance”) before the lessor’s claims were even adjudicated, resulting in the continued existence of the lease regardless of the merit of the lessor’s claims. The ^language of the pertinent articles does not support such a result. Although Bol-linger seeks damages instead of an injunction in its reconventional demand, an award of damages as a result of the mere filing of a suit to enforce a lessor’s rights under Article 2686 is likewise unwarranted and unsupported by the applicable law.

Bollinger relies on McCrary v. Park South Properties, 560 So.2d 38 (La.App. 2 Cir.), writ denied, 563 So.2d 1156 (La. 1990); however, that case is distinguishable from the present matter. In McCrary, the property owner (McCrary) entered into a long-term ground lease with a lessee (Park South) for the purpose of developing a shopping mall. McCrary, 560 So.2d at 41. After Park South negotiated and entered into two subleases, McCrary sent a default letter to Park South asserting that it had breached the lease and that only McCrary had the authority to determine how and when the property would be developed. McCrary, 560 So.2d at 42.

McCrary then filed a suit to cancel the lease and recover damages. Park South responded by filing a reconventional demand alleging that the default letter constituted an improper slander of its leasehold title and wrongfully prevented Park South from commercially developing the property. As a result, Park South alleged that it lost substantial income that could have been derived from the development of the property had McCrary not slandered Park South’s leasehold title. McCrary, 560 So.2d at 42-43. Park South prevailed at the trial on the merits, with the trial court finding that Park South had not breached the lease and that the unfounded default letter prevented Park South from obtaining title insurance policies that were necessary for the development of the property. Instead of damages, the trial court awarded equitable relief by extending the term of the lease by a period of time equal to and commensurate with the period beginning on the date of the default letter and ending when the proceeding was finally adjudicated. McCrary, 560 So.2d at 44.

|sThe court of appeal affirmed, but the court’s holding focuses on the default letter (as opposed to the suit to cancel the lease) and emphasizes that the default letter interfered with Park South’s ability to develop the property, explaining:

The ultimate goal of the lease agreement was the long-term commercial development of the property. Such long-term development will require the construction and erection of significant and valuable improvements. The threat of the immediate termination of the ground lease would discourage if not absolutely preclude such long-term development. One could not expect a reasonable businessman to commit significant funds to the construction of a building when the ground lease was under the threat of premature termination. Therefore, it is clear that the default letter was a breach of the peaceable possession and use of the leased premises by defendants and constituted a cloud on defendants’ leasehold title. This finding was supported by testimony at trial that defendants were unable to obtain title insurance or secure tenants following the default letter. The evidence also indicated that the early 1980’s when the default letter had been sent would have been the optimal period for the development of this property as South Park Mall had been fully leased and matured and the area was ripe for peripheral development.

McCrary, 560 So.2d at 50.

Although the court did not cite Article 2700 nor address the claim in terms of a “disturbance,” the court found that the issuance of the “unfounded” default letter actually prevented Park South from utilizing the leased premises for the intended purpose of developing a mall. Consequently, the court permitted equitable relief in the form of an extension of the lease. McCrary, 560 So.2d at 44; see also Union Bank v. Cottonport Insurance Exchange, 630 So.2d 975, 977 (La.App. 3 Cir. 1994), writ denied, 637 So.2d 1049 (La.1994) (“A lessor has breached its obligation to maintain the lessee in peaceable possession if a disturbance is such that the lessee can no longer use the premises for the purposes intended.”)

No such disturbance is alleged in the present matter. The only disturbance alleged by Bollinger is the filing and prosecuting of the lease cancellation suit by the Naquins. Bollinger does not allege that the lease cancellation suit interfered with its use of the leased premises, nor does Bollinger allege any other actions |9which might be construed as a disturbance in law or fact. Article 2700 requires a “disturbance” to establish a breach of the warranty of peaceful possession; however, an action or proceeding filed adversely to a possessor (in this instance, a lessee) is not a disturbance. See La.Code Civ. Pro. art. 3659; Horrell, 10-1694 at p. 4; Jackson, 623 So.2d at 1383. The reconventional demand does not allege a disturbance in law or fact that gives rise to a breach of the lessor’s warranty of peaceful possession under Louisiana Civil Code article 2700. Accordingly, we find no error in the trial court’s judgment sustaining the Na-quins’ exception of no cause of action.

Bollinger contends for the first time in its reply brief that the trial court erred in dismissing the reconventional demand without first giving Bollinger the opportunity to amend the claim pursuant to Louisiana Code of Civil Procedure article 934. The decision to allow amending of a pleading to cure the grounds for a peremptory exception is within the discretion of the trial court. Pearl River Basin Land and Development Co., L.L.C. v. State ex rel Governor’s Office of Homeland Security and Emergency Preparedness, 090084 (La.App. 1 Cir. 10/27/09), 29 So.3d 589, 594.

After sustaining the exception of no cause of action in open court, the trial court stated on the record that it was not “allowing time to amend” the reconven-tional demand because “there’s [nothing] that Bollinger can do to amend that might raise a cause of action based on my ruling and on the facts alleged.” In accordance with that ruling, the judgment signed by the trial court dismissed the reconventional demand with prejudice.

Prior to the hearing of the exception, Bollinger did not attempt to amend its reconventional demand, nor did it request the right to do so at the hearing of the exception. On appeal, Bollinger did not assign as error the trial court’s ruling disallowing an opportunity to amend the claim. Under these circumstances, we hnfind that Bollinger did not properly preserve its right to seek appellate review of the trial court’s ruling disallowing an opportunity to amend the reconventional demand, and review of that ruling is not clearly required by the interest of justice. See Uniform Rules — Courts of Appeal, Rules 1-3 and 2-12.4; Franklin v. AIG Casualty Company, 13-0069, n. 3 (La.App. 1 Cir. 6/7/13), 2013 WL 3475773 (unpublished opinion).

ANSWER TO APPEAL

In an answer to the appeal, the Naquins requested that this court consider the merits of the exception of prematurity if the court reversed the trial court’s judgment sustaining the exception of no cause of action. In light of our holding affirming the sustaining of the exception of no cause of action, the relief requested in the answer to the appeal is moot.

CONCLUSION

We affirm the August 1, 2013 judgment sustaining the peremptory exception raising the objection of no cause of action and dismissing the reconventional demand with prejudice. All costs of this appeal are assessed to Bollinger Shipyards, Inc.

AFFIRMED.

      . The Naquins’ original and supplemental petitions also sought recovery of damages under tort claims and for breach of contract; however, most of the tort claims were dismissed pursuant to an exception of prescription. See Naquin v. Bollinger Shipyards, Inc., 11-1217 (La.App. 1 Cir. 9/7/12), 102 So.3d 875, writs denied, 12-2676, 12-2754 (La.2/8/13), 108 So.3d 87, 93.