author: AMY, Judge.

text:
    GRANTT GUILLORY ENTERPRISES, INC., d/b/a Kajun Seafood v. Floyd QUEBEDEAUX.
    No. 12-931.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.
    Rehearing Denied March 27, 2013.

      Bruce Aehille Gaudin, Opelousas, LA, for Plaintiff/Appellee, Grantt Guillory Enterprises, Inc., d/b/a Kajun Seafood.
    Floyd Quebedeaux, Arnaudville, LA, for Defendant/Appellant In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

_JjThe plaintiff is the owner of a seafood processing plant that it leased to the defendant. Thereafter, the plaintiff filed suit, seeking to evict the defendant on the basis that the defendant breached the terms of the lease by failing to pay rent and by failing to obtain liability insurance. The plaintiff also sought to collect the unpaid rent and obtained a writ of sequestration on the defendant’s property. The defendant denied that he owed any rent and attempted to have the writ of sequestration dissolved. After a hearing on those issues, the trial court denied the defendant’s request to have the writ of sequestration dissolved and ordered that the defendant be evicted from the premises. At a subsequent trial on the issue of unpaid rent, the trial court found that there was unpaid rent and awarded the plaintiff that amount and attorney’s fees. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Grantt Guillory Enterprises, Inc., d/b/a Kajun Seafood (Guillory Enterprises), is the owner of a seafood processing plant in St. Landry Parish. The record indicates that Grantt Guillory is the president of Guillory Enterprises and that his father, Nelson Guillory, is the secretary/treasurer of the corporation. The record further indicates that Guillory Enterprises entered into a twelve-month lease with the defendant, Floyd Quebe-deaux, for the processing plant starting on July 1, 2010. The lease provided that the amount of rent due each month was $6,200.00 and that Quebedeaux was required to maintain liability insurance in the amount of $1,000,000.00.

In April of 2011, Guillory Enterprises filed suit, seeking to evict Quebedeaux from the premises and to collect past due rent. Guillory Enterprises also sought, and was granted, a writ of sequestration. Quebedeaux denied that he was behind on the rental payments and asserted that he had maintained the liability insurance required by ]2the lease. Thereafter, Quebe-deaux filed a motion to have the writ of sequestration dissolved and Guillory Enterprises filed a motion to evict. The trial court scheduled a hearing on those issues, but continued it so that Quebedeaux could obtain business records that were located at the processing plant. After the hearing was conducted, the trial court maintained the writ of sequestration and denied Que-bedeaux’s motion to dissolve the writ. The trial court also granted the motion to evict.

Trial was subsequently held to determine the amount of rent owed to Guillory Enterprises by Quebedeaux. The trial court determined that Quebedeaux owed $82,589.81 in outstanding rent. After a credit of $1,993.00 for perishables sold by Guillory Enterprises, the total owed was $30,596.31. The trial court awarded Guil-lory Enterprises $6,300.00 in attorney’s fees. Further, the trial court acknowledged that the plaintiff had a lessor’s lien on movables which were at the processing plant and maintained the writ of sequestration.

Quebedeaux appeals, asserting as “issues for determination” that:

1. Defendant[’]s Constitutional rights were violated.
2. Defendant did not get a fair trial due to lack of evidence.
3. Defendant was trialed twice on the same exact case [sic].
4. Plaintiffs and Sheriffs’ Department failed to follow procedure during the sequestration.
5. Plaintiffs and Sheriffs’ Department disobeyed the courts order, denying the defendant his evidence.
6. Plaintiffs failed to issue an eviction notice for past due rent and/or lack of proof of insurance, as required by the lease agreement.
7. Sequestration and eviction were falsely alleged by the plaintiffs.
8. Defendant alleges there was a conflict of interest.

Discussion

Constitutional Issues

Several of Quebedeaux’s arguments address his concerns that his constitutional rights were violated, including the rights to due process and a fair trial and the prohibition against double jeopardy. • Que-bedeaux also argues that the issuance of the writ of sequestration was a violation of the prohibition against search and seizure.

|<¡In order to invoke the due process clause of either U.S. Const, amend. XIV or La. Const. art. 1, § 2, the claimant must first show that “some property or liberty interest has been adversely affected by state action.” Fontenot v. Sw. La. Hosp. Ass’n, 00-129, p. 10 (La.App. 8 Cir. 12/6/00), 775 So.2d 1111, 1117 (quoting Price v. U-Haul Co. of La., 98-1959 (La.9/8/99), 745 So.2d 593), writ denied, 01-390 (La.4/12/01), 789 So.2d 596. Thus, as Quebedeaux has not shown that Guillo-ry Enterprises is a state actor, his assertion that his right to due process was violated is without merit.

With regard to his contention that he was denied his right to a fair trial “due to lack of evidence,” Quebedeaux is apparently arguing a violation of his rights under U.S. Const. amend. VI and La. Const. art. 1, § 16. However, there is no discussion of those issues in Quebedeaux’s appellate brief. “All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Uniform Rules— Courts of Appeal, Rule 2-12.4. Accordingly, we decline to consider Quebedeaux’s argument concerning any alleged violations of his right to a fair trial.

Similarly, Quebedeaux’s contention that the writ of sequestration was an unconstitutional search and seizure was not an issue that was presented to the trial court. Although Quebedeaux asserted various other alleged constitutional defects, this court was unable to locate any allegations in the record that the writ of sequestration was a violation of either U.S. Const, amend. IV or La. Const, art. 1, § 5. Thus, this|4issue was not raised in the trial court and is not properly before this court for consideration. Uniform Rules—Courts of Appeal, Rule 1-3. For this reason, we do not address Quebedeaux’s argument in this regard.

Accordingly, we find no merit to Quebe-deaux’s arguments concerning alleged violations of his constitutional rights.

Res Judicata and/or “Law of the Case

Quebedeaux also asserts that the constitutional prohibition against double jeopardy was violated because he was tried “twice on the same exact case.” The concept of double jeopardy stems from both U.S. Const, amend. V and La. Const, art. 1, § 15. It applies to criminal prosecutions and prohibits a person from being twice put “in jeopardy of life or liberty for the same offense.” La.Code Crim.P. art. 591. The record indicates that this suit is a civil case and not a criminal prosecution. Accordingly, the prohibition against double jeopardy does not apply.

However, while incorrectly titled, Quebedeaux’s argument is that the trial court erred in failing to apply either the doctrine of res judicata or the doctrine of the “law of the case.” We note that, although not part of his argument concerning double jeopardy, Quebedeaux references the doctrine of res judicata in his appellate brief. Louisiana Revised Statutes 13:4281 provides that, in pertinent part, “[e]xcept as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review.” See also Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049. The doctrine of the law of the case “refers to a policy by which the court will not reconsider prior rulings in the same case.” KeyClick Outsourcing, Inc. v. Ochsner Health Plan, Inc., 11-598, p. 7 (La.App. 4 Cir. 3/14/12), 89 So.3d 1207, 1211. However, unlike res judicata, the law of the case is discretionary and need not be applied inflexibly. Id.

A review of the record reveals that the trial court held a hearing on Quebe-deaux’s motion to dissolve the writ of sequestration and on Guillory Enterprises’ motion to evict on June 16, 2011. The minutes from that date indicate that, after hearing the evidence, the trial court denied the motion to dissolve the writ of sequestration and granted the rule to evict. The trial court signed orders to that effect on July 5, 2011. In order to assert the doctrine of res judicata, there must be a final judgment. Henry Ins. Agency, Inc. v. Desadier, 94-39 (La.App. 3 Cir. 10/5/94), 643 So.2d 374. “A judgment that determines the merits in whole or in part is a final judgment.” La.Code Civ.P. art. 1841. Our review of the record does not indicate that the orders issued on July 5, 2011 address the merits of Guillory Enterprises’ claim for unpaid rent.

Quebedeaux contends that, at the June 16, 2011 hearing, the trial court determined that Guillory Enterprises had not proven that there was unpaid rent. However, the record does not contain a transcript of the June 16, 2011 hearing. Quebedeaux asserts that he has requested a copy of the transcript and has not been able to obtain one. It is the appellant’s duty to obtain either transcript of the testimony or a narrative of facts, and the inadequacy of the record is imputable to the appellant. Barrois v. Wal-Mart Stores, Inc., 97-636 (La.App. 5 Cir. 11/25/97), 703 So.2d 798. Further, an appellate court may not consider evidence outside the record, including facts referred to in appellate briefs which are not in the record lodged in the appellate court. Id. Accordingly, this court may not consider Quebedeaux’s contention that the issue of unpaid rent was decided on the merits at the June 16, 2011 hearing.

In this light, we find that the doctrine of res judicata is inapplicable. Similarly, because there is nothing in the record that indicates that the trial court made a | ^determination concerning the claim for unpaid rent, the law of the case is also inapplicable.

This assignment of error is without merit.

Motion to Evict

Several of Quebedeaux’s arguments concern the propriety of the trial court’s order granting Guillory Enterprises’ motion to evict. Quebedeaux contends that he did not owe outstanding rent and that he maintained liability insurance as required by the lease. Further, Quebedeaux contends that Guillory Enterprises did not send him notice of any alleged defects, as required by the lease.

According to the record, Guillory Enterprises initially filed a “Petition to Rescind Lease and Reeover[] Past Due Rent.” Guillory Enterprises subsequently filed a Rule to Evict, seeking to have Quebedeaux “evicted from the leased premises.” Therein, Guillory Enterprises alleged that Quebedeaux failed to make lease payments, failed to maintain general liability insurance on the property, and removed metal pallet racks from the property.

However, as previously discussed, the record on appeal does not contain the transcript of the hearing on the rule to evict and the motion to dissolve the writ of sequestration. In Barrois, 703 So.2d at 799-800 (citations omitted), the fifth circuit discussed appellate review where the record is incomplete, stating:

Where, as in this case, there is no transcript, no narrative of facts by the parties or by the trial judge, the judgment of the trial court is presumed by the jurisprudence to be supported by competent evidence. In these circumstances, which are present in the case before us, where we have neither transcript nor an agreed upon narrative nor a narrative by the trial court, there is nothing for the appellate court to review and the trial court’s ruling is presumed correct....
As we stated in City of Harahan v. Cummings, 545 So.2d 643 (La.App. 5 Cir.1989), an appeal without being accompanied by recorded testimony on which findings of fact are made will succeed only rarely.

17Further, as stated by the fifth circuit in Alexander v. Parish of St. John the Baptist, 09-840 (La.App. 5 Cir. 3/23/10), 33 So.3d 999, writ denied, 10-1289 (La.9/17/10), 45 So.3d 1056, because the appellant is responsible for the record on appeal, the inadequacy of that record cannot operate to the detriment of an appel-lee. Thus, “when the record does not contain an adequate transcript, narrative of facts or other satisfactory evidence, an appellate court can apply the presumption that the trial court’s judgment is correct and affirm.” Id. at 1005. See also La. Code Civ.P. art. 2164.

The record on appeal includes the trial court’s minutes dated June 16, 2011, which state, in relevant part,

The Court finds the Writ of Sequestration validated. Motion to Dissolve Writ of Sequestration denied at the cost of the mover. Judgment to be submitted. Rule to Evict take up and heard.... Rule to evict is granted at the cost of the defendant. Judgment to be submitted.

Also included in the record are exhibits submitted to the trial court at the hearing on the motion to dissolve the writ of sequestration and the motion to evict. Even with this evidence, given the omission of the transcript for the hearing on the motion to dissolve the writ of sequestration and the motion to evict from the record, this court is unable to review the trial court’s findings of fact and, therefore, “the trial court’s ruling is presumed correct.'’ Barrois, 703 So.2d at 800.

This assignment of error is without merit.

| ⅛Evidence

One of Quebedeaux’s contentions is that the “[plaintiffs and Sheriffs’ Department disobeyed the courts order, denying the defendant his evidence.” Quebedeaux alleges that there was evidence in the office of the seafood processing plant which would prove that he maintained the required general liability insurance and that he was not behind on his rent.

According to Quebedeaux, he was prevented from retrieving that evidence when the writ of sequestration was served at the plant. The trial court’s minutes indicate that the trial court continued the hearing on the motion to dissolve the writ of sequestration and the motion to evict to allow “counsel to obtain copies of business records.... The St. Landry Parish Sheriffs Office is to provide a deputy to accompany counsel and parties to obtain said records.” Quebedeaux alleges that there were documents missing when his attorney and his daughter went to the plant to retrieve evidence. At trial, Suzanne Que-bedeaux testified that one of the St. Landry Parish Sheriffs detectives had a file in his desk that he would not allow her to leave with. Ms. Quebedeaux stated that the folder had paperwork concerning the BP oil spill in it, including copies of their insurance policy. Detective Keith Dupre testified that he had some items that he was holding for the FBI.

At trial, Quebedeaux contended that this evidence was wrongfully withheld. Our review of the record indicates that, before the hearing on the motion to evict and the motion to dissolve the writ of sequestration, the trial court issued a discovery order permitting Quebedeaux to obtain whatever evidence he required from the processing plant. Although Quebedeaux was apparently unsatisfied with the evidence he obtained from that visit, he did not formally present this issue to the trial court until the day of the trial, more than six months later. In rendering judgment, the trial court stated that:

|80n June 14th I ordered that the defendant be allowed access to all of the properties for review. He had counsel at that time. Counsel well could have made a request or demand upon the Sheriff and received whatever documentation the Sheriff might have had. There’s nothing in evidence indicates— nothing in evidence that indicates any of those efforts were made.

There being no indication in the record that Quebedeaux filed any sort of request with the trial court concerning his allegations prior to trial, the trial court was unable to timely consider the merits of Quebedeaux’s complaint and, if the trial court felt that relief was warranted, provide any relief to Quebedeaux. See, e.g., LeBlanc v. Consol. Aluminum Co., 401 So.2d 1082 (La.App. 3 Cir.), writ denied, 409 So.2d 617 (La.1981). Accordingly, we find no merit to Quebedeaux’s argument concerning the alleged withholding of evidence.

Sequestration

Quebedeaux also contends that the trial court erred in ordering the sequestration and that the “[p]laintiffs and Sheriffs’ Department failed to follow procedure during the sequestration.” Quebedeaux’s complaints concerning the failure to follow procedure are his allegations that the St. Landry Parish Sheriffs Office did not make a proper inventory and that the Sheriffs Office turned possession of the property over to Guillory Enterprises. Quebedeaux also complains that Guillory Enterprises inappropriately sold perishables seized pursuant to the writ and failed to make a proper accounting of the sale.

Along with the writ of attachment, the writ of sequestration is a conservatory writ which is intended to preserve property pending the outcome of a judicial proceeding. Spiers v. Roye, 04-2189 (La.App. 1 Cir. 5/19/06), 927 So.2d 1158 (on rehearing). As the remedy is a harsh one, the pleading requirements for a writ of sequestration are strictly construed. Sar- py Props., Inc. v. Diamond Shoe Stores of LA, Inc., 99-1304 (La.App. 5 Cir. 5/17/00), 761 So.2d 769, writ denied, 00-1760 (La.9/22/00), 768 So.2d 604.

“A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.” La.Code Civ.P. art. 3501. Louisiana Code of Civil Procedure Article 3571 addresses the grounds for issuance of a writ of sequestration, stating:

When one claims the ownership or right to possession of property, or a mortgage, security interest, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.

Where the party seeking the writ of sequestration claims a lessor’s privilege, the writ “shall issue without the furnishing of security.” La.Code Civ.P. art. 3575.

A review of the record indicates that Guillory Enterprises alleged it was entitled to a lessor’s lien on all moveable property located at the processing plant to secure its claim for unpaid rent. Guillory Enterprises also sought a writ of sequestration, alleging that:

All of these moveable items are in the possession of the Defendant and it is within Defendant’s power to and Plaintiff has good reason to believe that Defendant will conceal, dispose or remove these moveables from the Parish during the pendency of this action. To protect Petitioner’s rights it is necessary that a writ of sequestration issue, without bond, pursuant to Code of Civil Procedure Article 3575, directing the Sheriff to seize all of the movable property affected by Petitioner’s privilege and to hold them subject to further order of the Court.

The petition was verified by Nelson Guillo-ry as an authorized representative of Guil-lory Enterprises.

|1TAs previously discussed, Quebedeaux filed a motion to dissolve the writ of sequestration and the trial court held a hearing on that issue. Although the transcript of that hearing is unavailable, the trial court’s minutes indicate that the trial court denied the motion to dissolve the writ of sequestration.

Notwithstanding the absence of a transcript of the hearing on the motion to dissolve the writ of sequestration, there is sufficient evidence in the record to conclude that Guillory Enterprises adequately alleged the grounds necessary for issuance of the writ. The plaintiff has alleged that there is a lease; that $35,800.00 along with attorney’s fees was due; that Guillory Enterprises holds a lessor’s privilege on “all movable property of the Defendant located on the leased premises;” and that it was within Quebedeaux’s power to conceal, dispose, or remove those movables. Further, the petition was verified by Nelson Guillory, the .secretary/treasurer of Guillory Enterprises. See Montague v. Tinker, 197 So.2d 154 (La.App. 3 Cir.), writ denied, 250 La. 916, 199 So.2d 921 (1967).

Accordingly, we find that Guillory Enterprises adequately alleged the requirements for a writ of sequestration and, thus, we find no error in the trial court’s issuance of the writ.

Quebedeaux has several further complaints concerning alleged improprieties on the part of the St. Landry Parish Sheriffs Office and Guillory Enterprises with regard to the execution of the writ of sequestration. He alleges that the Sheriffs Office failed to properly inventory the property and that the Sheriffs Office improperly turned over custody of the property to Guillory Enterprises. He also alleges that Guillory Enterprises sold perishables in the absence of a court order permitting such a sale.

|12With regard to Quebedeaux’s allegations concerning the lack of an inventory, La.Code Civ.P. art. 3504 requires that “[t]he sheriff, after executing a writ of attachment or of sequestration, shall deliver to the clerk of the court from which the writ issued a written return stating the manner in which he executed the writ. He shall annex to the return an inventory of the property seized.” The record indicates that the writ of sequestration was issued on April 4, 2011. The record also contains a six-page exhibit entitled “Bobby Guidroz, Sheriff, Receipt for Articles,” which is dated April 5, 2011. Deputy Kevin Dupre testified that he and another deputy inventoried the property at that time. Although the record contains this inventory of the property seized, it does not contain a written return from the Sheriffs Office. Even assuming that the Sheriffs Office failed to deliver a written return to the Clerk of Court’s office, the record supports a finding that the Sheriffs Office inventoried the property and we find nothing in the record indicating that, in this instance, relief is appropriate.

With regard to Quebedeaux’s contention that the Sheriffs Office inappropriately turned over possession of the property to Guillory Enterprises, we observe that La. Code Civ.P. art. 326 permits the sheriff to “appoint a keeper of the property” in order to “safeguard, protect, and preserve all property seized of which he has taken or is required to take actual possession.” Accordingly, this argument is without merit.

Quebedeaux also argues that the plaintiff sold perishables without seeking court authorization and did not keep accurate records of the sale. Pursuant to La.Code | laCiv.P. art. 3513, “[pjerishable property seized under a writ of attachment or of sequestration may be sold as provided in Article 2333. The proceeds of such a sale shall be held by the sheriff subject to the orders of the court.” Louisiana Code of Civil Procedure Article 2333 provides, in relevant part, that “[t]he court, at the request of a party, may order the immediate sale at public auction, without advertisement or appraisement, of property that is perishable and subject to loss or deterioration pending compliance with the usual formalities.”

A review of the record reveals that Guil-lory Enterprises sought judicial authorization for the Sheriff to “sell any and all live crawfish and other perishable items recovered through execution of the writ of sequestration.” At trial, Grantt Guillory and Nelson Guillory both testified that some of the items at the processing plant were sold as perishables. According to Grantt’s testimony, after expenses were paid, the net profit was $1,993.00. Guillory Enterprises submitted into evidence a receipt for the crawfish sold. The trial court credited this testimony and found that Quebedeaux was due a credit of $1,993.00 towards the rent.

We observe that, in his motion to dissolve the writ of sequestration, Quebe-deaux alleged that Nelson Guillory “has operated the business since April 5, 2011, selling seafood, cold drinks, and other inventory items”. The trial court’s minutes indicate that the trial court denied the motion to dissolve the writ of sequestration. However, the transcript of that hearing is not included in the record on appeal. As previously discussed, “when the record does not contain an adequate transcript, narrative of facts or other satisfactory evidence, an appellate court can apply the presumption that the trial court’s judgment is correct and affirm.” Alexander, 33 So.3d at 1005. The record indicates that the trial court had the opportunity to consider Quebedeaux’s complaints regarding Guillory Enterprises’ sale of perishables seized pursuant to the writ of sequestration. However, the trial court | udenied Quebedeaux’s motion to dissolve the writ. Having no transcript from the hearing on the motion to dissolve the writ and the motion to evict in order to review the trial court’s determination, we presume the trial court’s judgment to be correct. See Barrois, 703 So.2d 798.

Quebedeaux’s arguments concerning the writ of sequestration are without merit.

Allegations of Conflict of Interest

Quebedeaux also contends that there was a conflict of interest which warrants action from this court. Quebedeaux alleges that the St. Landry Parish Sheriff is Grantt Guillory’s uncle. Even assuming that Quebedeaux’s allegations are true, a review of the record reveals that Quebe-deaux never formally requested any relief from the trial court. Although Quebe-deaux made similar allegations in an “Open Letter to the Court” and in his pretrial memorandum, Quebedeaux did not request any action from the trial court with regard to those allegations. Thus, this issue was not submitted to the trial court for determination and is not properly before this court for consideration. Uniform Rules — Courts of Appeal, Rule 1-3. We decline to address Quebedeaux’s argument in this regard.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court in all respects. The costs of this appeal are allocated to the defendant-appellant, Floyd Quebe-deaux.

AFFIRMED.

      . In any case, we note that U.S. Const, amend. VI and La. Const, art. 1, § 16 address criminal prosecutions. For example, La. Const, art. 1, § 16 states, in relevant part, that:
      Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. No person shall be compelled to give evidence against himself. An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.

      . We observe that Quebedeaux filed a document entitled "Motion to Dismiss Judgment on the Pleadings, Res Judicata” on February 28, 2012, after trial was conducted in this matter. The trial court denied that motion on April 23, 2012. Quebedeaux has not asserted that the trial court erred in denying his post-trial assertion of res judicata.

      . In its exhibits, Guillory Enterprises submitted an accounting of rent paid and rent due, indicating that Quebedeaux owed rent in the amount of $33,089.31. This accounting included a credit to Quebedeaux in the amount of $1,396.00 for bait provided to Nelson Guil-lory. Guillory Enterprises also submitted an unsigned copy of a letter dated August 5, 2010, notifying Quebedeaux of his "default on rental payments for July and August 2010 totaling $12,400.00” and indicating that Guil-lory Enterprises intended to terminate the lease. Quebedeaux filed into evidence an accounting which indicated that Guillory Enterprises owed Quebedeaux, due in part to credits for bait totaling over $11,000.00. In his brief to this court, Quebedeaux disputes that he was provided with notice of any alleged default under the terms of the lease.

      . At the trial on the issue of outstanding rent, Guillory Enterprises submitted an accounting of rent due, which it conceded contained a miscalculation. Grantt Guillory, the president of Guillory Enterprises, testified that the amount of outstanding rent due was actually $32,589.31 and that Quebedeaux was due a credit of $1,993.00 due to the sale of some perishable goods.

      . The record does contain a "Notice of Seizure,” which was attached to Quebedeaux’s "Amendment to Motion for Continuance.” However, although Quebedeaux apparently referenced the "Notice of Seizure” during his examination of Deputy Kevin Dupre, the notice was never admitted into evidence. Appellate courts are courts of record and may not receive new evidence, nor may they review evidence that is not in the record on appeal. Hamilton v. Progressive Sec. Ins. Co., 10-1005 (La.App. 3 Cir. 3/16/11), 59 So.3d 504. "Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” Id. at 507 (quoting Denoux v. Vessel Mgmt. Servs., Inc., 07-2143 (La.5/21/08), 983 So.2d 84).

      . Quebedeaux's "Open Letter to the Court” states that it is “an attempt to explain to this court how the defendants [sic] Constitutional rights are and have been violated.”


source: Caselaw Access Project

license: Public Domain

text:
    Susan ARRINGTON, etc. v. ER PHYSICIAN GROUP, INC., et al.
    No. 12-995.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.
    Stephen M. Pizzo, Metairie, LA, for Defendant/Appellee, Galen-Med, Inc.
    J. Elliott Baker, Special Assistant Attorney General, Covington, LA, for Defendants/Appellees, State of Louisiana, Galen-Med, Inc.
    Nadia de la Houssaye, Jones, Walker, Waechter, Poitevent, Carrére & Denegre, L.L.P., Lafayette, LA, for Intervenor/Ap-pellee, Louisiana Patient’s Compensation Fund.
    Oliver Jackson Schrumpf, Schrumpf & Schrumpf, Sulphur, LA, for Plaintiffs/Appellants, Susan Arrington, Laura Jo Ar-rington, Joelle Lorene Arrington, Sharon Taylor, Charles Taylor, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

hThe plaintiffs in these consolidated cases question whether the trial court correctly resolved their claims regarding the constitutionality of La.R.S. 40:1299.42(B) upon remand by the Louisiana Supreme Court. See Arrington v. Galen-Med, Inc., 12-0908 (La.5/22/12), 89 So.3d 1159. For the following reasons, we affirm. We further deny the plaintiffs’ motion for en banc consideration of the appeals.

Factual and Procedural Background

These medical malpractice matters have a lengthy procedural history and have previously been considered by this court as well as the Louisiana Supreme Court for consideration of various issues. See, e.g., Arrington v. ER Physicians Group, 04-1285 (La.App. 3 Cir. 9/27/06), 940 So.2d 777; Arrington v. Galen-Med, Inc., 06-2923, 06-2944, 06-2968 (La.2/2/07), 947 So.2d 719, 724, 727; Taylor v. Clement, 04-1069 (La.App. 3 Cir. 9/27/06), 940 So.2d 796; and Taylor v. Clement, 06-2518, 06-2600, 06-2581 (La.2/2/07), 947 So.2d 721, 730, 732. At issue here is the plaintiffs’ assertion that the Medical Malpractice Act’s limitation of recovery, i.e., the “cap,” contained within La.R.S. 40:1299.42(B) is unconstitutional.

^Pursuant to Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985) (on rehearing), the trial court conducted an April 2011 eviden-tiary hearing in order to consider the constitutional challenges posed by the cases, now consolidated. The trial court determined that La.R.S. 40:1299.47(B) was unconstitutional “as violative of the equal protection and adequate remedy guarantees of the Louisiana constitution.” In its reasons for ruling, the trial court relied on a then-recently released opinion of this court in Oliver v. Magnolia Clinic, 09-439, p. 36 (La.App. 3 Cir. 8/31/11), 71 So.3d 1170, 1192 (wherein a majority of the en banc court concluded that the cap of La. R.S. 40:1299.42(B) was unconstitutional “to the extent it includes nurse practitioners within its ambit, [and] violates the equal protection and adequate remedy guarantees of the Louisiana Constitution and La. R.S. 40:1299.41(A)(1)[.]”).

However, subsequent to the trial court’s ruling in the present matter, the Louisiana Supreme Court reversed that aspect of the Third Circuit’s ruling finding the malpractice cap unconstitutional. See Oliver v. Magnolia Clinic, 11-2132 (La.3/13/12), 85 So.3d 39. In doing so, the Louisiana Supreme Court relied upon the reasons it previously expressed in Butler v. Flint Goodrich Hosp. of Dillard Univ., 607 So.2d 517 (La.1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993), and declared that “the MMA’s cap described in La.R.S. 40:1299.42(B) is constitutional as it applies to all qualified health care providers, including nurse practitioners.” Oliver, 85 So.3d at 50. The supreme court reinstated the underlying trial court judgment in full. Id.

Following the trial court’s ruling in the present matter, the defendants sought direct review from the supreme court pursuant to La. Const. art. 5, § 5(D). See Arrington v. Galen-Med, Inc., 12-0908 (La.5/22/12), 89 So.3d 1159. In a per cu-riam opinion, the supreme court stated:

Pretermitting the merits, we find that at the time the district court rendered its judgment, it did not have the benefit of our recent opinion in Oliver v. Magnolia Clinic, 11-2132 (La.3/13/12), 85 So.3d 39. In Oliver, we reinstated our holding in Butler v. Flint Goodrich Hospital, 607 So.2d 517 (La.1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993), and recognized the malpractice cap was constitutional.
Accordingly, the judgment of the district court is vacated and set aside. The case is remanded to the district court to reconsider its ruling in light of Oliver v. Magnolia Clinic, 11-2132 (La.3/13/12), 85 So.3d 39.

Id.

On remand, the trial court issued the following reasons in a June 2012 ruling:

This matter returns to this Court following the May 22, 2012 Per Curiam ruling of the Louisiana Supreme Court vacating this Court’s judgment of September 16, 2011 and directing this Court to reconsider its ruling in light of Oliver v. Magnolia Clinic, 11-2132 (La.3/13/12), [85 So.3d 39], Oliver is crystal clear in upholding the constitutionality of La.R.S. 40:1299.42(B). Although Oliver involves nurse practitioners, the Supreme Court’s analysis begins with considering the statute’s constitutionality “as applied to any healthcare provider.” Thus, the Court maintained the constitutionality of the statute without qualification.
Accordingly, this Court finds La.R.S. 40:1299.42(B) constitutional[.]

The resulting judgment provided that:

l/The above-captioned cases were consolidated to consider challenges to the constitutionality of the limitation provided at La. R.S. 40:1299.42(B). A Sibley II hearing, Sibley v. Board of Supervisors of L.S.U., 477 So.2d 1094 (on rehearing ) (La.1985), was held from April 4 through April 7, 2011 before the Honorable District Judge Clayton Davis.
On September 16, 2011, this Court entered Judgment declaring Section 1299.42(B) unconstitutional as violative of La. Const, art. I, §§ 3 and 22. The Court rejected the plaintiffs’ challenges based on any other constitutional provisions, including La. Const, art. I, §§ 1, 2, and 4; art. II, §§ 1 and 2; art. Ill, § 12(A)(3) and (7); and, art. V, § 16.
Appeal was taken directly to the Supreme Court of Louisiana pursuant to La. Const, art. V, § 5(D), and on May 22, 2012, the Supreme Court vacated the September 16, 2011 Judgment of this Court and remanded this case for reconsideration of the ruling of unconstitutionality in light of Oliver v. Magnolia Clinic, [11-2132 (La.3/13/12), 85 So.3d 39],
Having reconsidered its ruling of September 16, 2011 in light of the Supreme Court’s Opinion in Oliver v. Magnolia Clinic, and for the reasons stated in this Court’s “Ruling” dated June 4, 2012.
IT IS HEREBY ADJUDGED AND DECREED that La.R.S. 40:1299.42(B) is fully constitutional.

The plaintiffs appeal from that judgment and, in their brief to this court, present the following issues for review:

1.The Butler majority misunderstood the “cap” and violated basic rules for interpreting the constitution and statutes by failing to consider, apply or interpret the actual language of Art. I., Sec. 22: which grants plaintiffs “adequate damages by due process of law and justice
2. The three alleged “benefits” cited in Butler either do not apply in these present cases or have not been challenged and would remain in existence even if the constitution were enforced therefore Butler is distinguishable and does not apply
3. Multiple constitutional provisions, which should be read in para mate-ria, were not analyzed in Butler or Oliver, but make pre-determination of the adequacy of damages by legislative edict rather than by judicial due process unconstitutional
a. Art. I., Sec. 2 Due Process
b. Art. I., Sec. 3 Equal Protection
c. Art. I., Sec. 22 “Adequate damages by Due process of law and justice”
d. Art. II, Sec. 1 & 2, Separation of Powers
Ue. Art. III., Sec. 12 A. (3) & (7) Limits on Legislative Power
f. Art. V., Sec. 16 Original Jurisdiction of District Courts
4. Evidence below in the Sibley II hearing shows that there is no rational basis to believe that a statute preventing Courts from exercising their Constitutional power to determine and enforce damages under La. C.C. 2315 will effect [sic] the unfettered power of insurance companies to increase rates; in fact, 37 years of one of the lowest caps in the nation has resulted in Louisiana malpractice rates rising from 25th to 17th highest in in the nation, while Louisiana remains 50th in the nation in health care rankings according to official La. DHH reports, while 64 of 64 parishes remain medically under-served
5. The Court should reject the claims of defendants/intervenors that the provisions of the Medical Malpractice Act are not severable from the “cap” because (a) the Act specifically provides that if any provision or item or application of the act is held invalid, such invalidity shall not effect [sic] other provisions which can be given effect (Sec. 2 of Act 817 of 1975), [Arrington, Yol. 4, p. 924]; and (b) because plaintiffs have not challenged the validity of any other provisions; and defendants did not raise as an affirmative defense, and plaintiffs objected to any attempt to inject that defense at trial; and (c) the evidence shows th[a]t the other provisions of the Act, such as the PCF and Medical Review Panels are well liked by health care providers and provide favorable benefits to health care providers and can function whether or not a cap is in place; and (d) insurers have been prepared to deal with this issue since inception by selling policies for $1 million/$3 million in coverage, carving out the PCF level of liability.
6. Judges and juries that hear the contemporaneous evidence on both sides of the case, are in a better position to evaluate the damages in each individual case than the 1975 ■ legislature is in. The Constitution recognizes this truth and requires “due process”. The Court needs to contemplate the difference between legislative power and judicial power.
7. The defendants failed to meet their burden of proof at trial to show a rational basis for placing the entire burden of the “cap” on the most seriously injured or killed victims of malpractice, Sibley II declared the standard and placed the burden on the supporters of the discriminatory legislation. No evidence in Sibley II, Butler, Oliver, Arrington, or Taylor has provided a justification why the burden of caps should be placed upon only the most disadvantaged.

| (-^Additionally, the plaintiffs have filed a motion for en banc hearing. Consideration of the motion was referred to the panel on the merits.

Discussion

Louisiana Supreme Court Jurisprudence

As can be seen from the plaintiffs’ issues presented for review, as set forth above, the plaintiffs seemingly focus on the correctness of Louisiana Supreme Court jurisprudence. Namely, the plaintiffs question Butler, 607 So.2d 517, and whether the 1992 decision appropriately addressed the question of adequacy of damages and whether it sufficiently considered the difficulties malpractice plaintiffs face in recouping losses.

Given the context of the plaintiffs’ arguments, we first observe that it is patently clear that “trial courts and courts of appeal are bound to follow the last expression of law of the Louisiana Supreme Court.” Oliver, 85 So.3d at 44. Significantly, in Oliver, the supreme court determined that the “court of appeal committed error in ruling contrary to Butler.” Id. Having set forth this principle, the supreme court revisited its “reasoning of Butler to remind courts of this State of the last expression of law relative to the cap’s constitutionality.” Id. Ultimately, of course, the supreme court reiterated its holding in Butler. Id.

Mindful of. this pronouncement and of the court of appeal’s obligation to follow the direction of the supreme court, we find no merit in the plaintiffs’ arguments regarding the rationale of Butler.

Neither do we find merit in the plaintiffs’ contention that, because of its argued limitations, Butler “should have no prece-dential effect” in the present consolidated matters. For example, the plaintiffs suggest that Butler is not controlling in this matter insofar as Butler discussed the policy benefits afforded by the Medical Malpractice Act’s provision for future medical benefits. They note, however, the instant cases |7involve injuries that led to the deaths of the patients. Thus, the plaintiffs argue, these cases do not involve consideration of the benefit of the availability of future medical benefits.

In short, we reject the plaintiffs’ argument that Butler is neither persuasive nor controlling in these matters. Both Butler and Oliver are broad constitutional statements by the supreme court which included evaluation of a variety of policy considerations attendant to the Medical Malpractice Act. We find no distinction in the present iteration of this case which would suggest a departure from the straightforward pronouncement in those cases. As set forth above, as recently as Oliver, 85 So.3d at 44, the supreme court confirmed its ruling in Butler, reminding the “courts of this State of the last expression of law relative to the cap’s constitutionality.” As an intermediate court of appeal, we do not now deviate from that expression.

These assignments lack merit.

Constitutional Considerations Beyond Equal Protection

The plaintiffs lodged a multifaceted constitutional argument in the present case. In addition to their arguments regarding the constitutionality of La. Const, art. 1, § 3 and La. Const, art. 1, § 22, the plaintiffs questioned the constitutionality of La. R.S. 40:1299.42(B) in light of: La. Const, art. 1, § 1: La. Const, art. 1, § 2; La. Const, art. 1, § 4; La. Const, art. 2, § 1; La. Const, art. 2, § 2; La. Const, art. 3, § 12(A); and La. Const, art. 5, § 16. Notwithstanding its due process and equal protection determination in its first ruling, the trial court in this case rejected the plaintiffs’ remaining constitutional challenges. The trial court reiterated its determination in its judgment on remand, stating that “La.R.S. 40:1299.42(B) is fully constitutional.”

In its brief to this court, the plaintiffs again seem to assert that neither Butler nor Oliver is applicable in this case as the supreme court did not specifically analyze | sthe above designated aspects of the constitutional argument. Admittedly, in Butler and, subsequently, in Oliver, the supreme court squarely focused on due process and equal protection considerations addressed in those cases. However, in both cases, the supreme court ruled in broad constitutional terms, referring to the underlying policy considerations of the Medical Malpractice Act and, in Butler, 607 So.2d at 521, stating that: “Overall, the Louisiana Medical Malpractice Act represents a reasonable but imperfect balance between the rights of victims and those of health care providers. It does not violate the state or federal constitutions.” (Emphasis added.) Similarly in Oliver, 85 So.3d at 45, the supreme court found “the malpractice cap constitutional as it applies to all qualified health care providers.” Pointedly, the supreme court explained that its “job, as a court tasked with reviewing laws, is to ensure statutes are free of constitutional infirmities. Once satisfied that legislation does not infringe upon constitutional rights, any other perceived infirmity is to be addressed by the legislature.” Id. at 46.

Given the breadth of the supreme court’s pronouncement in its jurisprudence, we find no error in the trial court’s rejection of the plaintiffs’ constitutional claims in all regards nor in its determination that “La.R.S. 40:1299.42(B) is fully constitutional.” Rather, the trial court accurately remarked in its ruling on remand that, in Oliver, 85 So.3d 89, the supreme court “maintained the constitutionality of the statute without qualification.”

Accordingly, we find that the plaintiffs’ claims lack merit.

| aMotion for En Banc Hearing

Finally, the plaintiffs filed a motion with this court seeking an en banc hearing. Finding such a hearing unnecessary given the clarity of controlling supreme court precedent, we deny the motion.

DEGREE

For the foregoing reasons, the judgment of the trial court, rendered on June 18, 2012 is affirmed. The motion for en banc hearing is denied. All costs of this proceeding are assessed to the plaintiffs-appellants.

AFFIRMED. MOTION FOR EN BANC HEARING DENIED.

THIBODEAUX, Chief Judge, specially concurs.

      . The statute presently provides:
      B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
      (2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, and costs specifically provided for by this Paragraph for all malpractice claims because of injuries to or death of any one patient. The sole cost for which a health care provider qualified under this Part may be assessed by a trial court shall be limited to the cost incurred prior to the rendering of a final judgment against the health care provider, not as a nominal defendant, after a trial on a malpractice claim, including but not limited to, costs assessed pursuant to Code of Civil Procedure Article 970 in any instance where the board was not the offer- or or offeree of the proposed settlement amount. The health care provider shall not be assessed costs in any action in which the fund intervenes or the health care provider is a nominal defendant after there has been a settlement between the health care provider and the claimant.
      (3)(a) Any amount due from a judgment or settlement or from a final award in an arbitration proceeding which is in excess of the total liability of all liable health care providers, as provided in Paragraph (2) of this Subsection, shall be paid from the patient’s compensation fund pursuant to the provisions of R.S. 40:1299.44(C).
      (b) The total amounts paid in accordance with Paragraphs (2) and (3) of this Subsection shall not exceed the limitation as provided in Paragraph (1) of this Subsection.

      . For decretal information in the consolidated case, see the companion ruling in Charles Taylor, Jr. v. Dr. Richard Clement, 12-996 (La.App. 3 Cir. 2/6/13), 110 So.3d 199, 2013 WL 440136.

      . Article 5, § 5(D) provides that: "In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional or (2) the defendant has been convicted of a capital offense and a penalty of death actually has been imposed.”

      . Additionally, we point out that the supreme court reinstated the trial court's judgment in full. Earlier in its opinion, the supreme court reported that the trial court "rejected each of the Olivers' challenges to the cap’s constitu-tionalityf]” Oliver, 85 So.3d at 42. Footnote 3 of Oliver indicates that:
      The Olivers asserted the statute violated the following provisions of the Louisiana Constitution: Article I, § 2 (due process); Article I, § 3 (equal protection); Article I § 22 (adequate remedy); Article V, § 16 (original jurisdiction of the courts); Article V, § 1 (judicial power); Article II, §§ 1 and 2 (separation of powers); and Article II, § 12(3) and (7) (prohibition against special laws).


author: AMY, Judge. THIBODEAUX, Chief Judge,

text:
    Charles TAYLOR, Jr., et ux. v. Dr. Richard CLEMENT, et al.
    No. 12-996.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.
    Stephen M. Pizzo, Metairie, LA, for Defendant/Appellee, Galen-Med, Inc.
    J. Elliott Baker, Special Assistant Attorney General, Covington, LA, for Defendants/Appellees, State of Louisiana, Galen-Med, Inc.
    Nadia de la Houssaye, Jones, Walker, Waechter, Poitevent, Carrére & Denegre, L.L.P., Lafayette, LA, for Intervenor/Ap-pellee, Louisiana Patient’s Compensation Fund.
    Oliver Jackson Schrumpf, Schrumpf & Schrumpf, Sulphur, LA, for Plaintiffs/Appellants, Susan Arrington, Laura Jo Ar-rington, Joelle Lorene Arrington, Sharon Taylor, Charles Taylor, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

hFor the reasons expressed in the consolidated case of Susan Arrington v. ER Physician Group, 12-995 (La.App. 3 Cir. 2/6/13), 110 So.3d 193, the judgment of the trial court, rendered on June 18, 2012 is affirmed. The motion for en banc hearing is denied. All costs of this proceeding are assessed to the plaintiffs-appellants.

AFFIRMED. MOTION FOR EN BANC HEARING DENIED.

THIBODEAUX, Chief Judge, specially concurs.

THIBODEAUX, Chief Judge,

specially concurring.

|,I still maintain my position that the medical malpractice cap is unconstitutional on the bases of equal protection, due process, and separation of powers. However, I must sacrifice my intellectual independence and judicial beliefs to what is the clear pronouncement of the Louisiana Supreme Court in Oliver v. Magnolia Clinic, 11-2132 (La.3/13/12), 85 So.3d 39.


author: GENOVESE, Judge.

text:
    WASTE MANAGEMENT OF LOUISIANA, LLC v. PENN-AMERICA INSURANCE COMPANY, Albert D. Giraud, J. Michael Nash, Ginger K. DeForest, and ABC Insurance Company.
    No. 12-1033.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      John W. deGravelles, J. Neale deGra-velles, deGravelles, Palmintier, Holthaus & Fruge, LLP, Baton Rouge, LA, for Plaintiff/Appellant, Waste Management of Louisiana, LLC.
    Emmett C. Sole, William B. Monk, Paul P. Marks, Stockwell, Sievert, Viceellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendants/Appellees, Albert D. Giraud, J. Michael Nash, and Ginger K. DeForest.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

| plaintiff, Waste Management of Louisiana, LLC (Waste Management), appeals the trial court’s grant of summary judgment in favor of Defendants, Albert D. Giraud, J. Michael Nash, and Ginger K. DeForest (hereinafter referred to collectively as Defendant Attorneys). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This matter involves a legal malpractice lawsuit filed by Waste Management against Defendant Attorneys on the basis that Defendant Attorneys’ representation of Waste Management during the appeal process in a personal injury lawsuit allegedly presented conflicts of interest for which Defendant Attorneys should have withdrawn from their representation of Waste Management. The facts of the lawsuit for which Defendant Attorneys represented Waste Management were set forth in a previous opinion of this court as follows:

Waste Management of Louisiana, LLC entered into a contract with the City of Lake Charles to remove debris associated with a January 1997 ice storm. Because Waste Management did not have the necessary employees and equipment, it engaged Delta Exports, Inc. to perform the required work. Delta Exports then engaged Jack Gibson d/b/a J & P Logging to undertake the clean-up.
The accident at issue occurred on February 7, 1997, as the process was underway. Johnny Leroy Cobb, the plaintiff, alleges that he was traveling to a business appointment via Louie Street and saw a crew removing debris on the street. He denies seeing barricades or flagmen deterring his passage on the road. Mr. Cobb alleges that the accident occurred when he tried to pass the work crew’s front-end loader. He contends that the loader, driven by James Wright of J & P Logging, backed into his car....
Mr. Cobb filed suit, naming as defendants the City of Lake Charles, Waste Management, Delta Exports, Jack Gibson d/b/a J & P Logging, and the driver of the front-end loader, James Wright. Delta Exports’ insurer, Penn-America Insurance Company was also named as a defendant. Summary judgments were originally entered in favor of the City of Lake Charles, Waste Management, and Delta Exports, but were reversed on appeal to this court. See Cobb v. Delta Exports, Inc., 03-33 (La.App. 3 Cir. 6/4/03), 847 So.2d 739, units denied, 03-1906 (La.10/31/03), 857 So.2d 483, OS-1936 (La.10/31/03), 857 So.2d 485.
After the matter proceeded to trial, a jury found that Mr. Wright, Delta Exports, and Waste Management were at fault in causing the accident. The plaintiff, Jack Gibson d/b/a J & P Logging, and the City of Lake Charles were found not to be at fault. Mr. Wright was also found to be the borrowed employee of Delta Exports. The jury apportioned 25% of the fault to Mr. Wright, 25% to Delta Exports, and 50% to Waste Management.
The jury awarded [damages totaling $2,267,483.71].

Cobb v. Delta Exports, Inc., 05-509, pp. 1-2 (La.App. 3 Cir. 12/30/05), 918 So.2d 1080, 1083-84, writ denied, 06-225 (La.4/24/06), 926 So.2d 551.

The lawsuit which forms the basis for the present appeal was filed on May 25, 2006. Waste Management filed a Petition for Damages, and in the Alternative Only, Action to Nullify Final Judgment, against Defendant Attorneys and their insurer. Waste Management alleged that during the appeal process of the underlying litigation, Cobb v. Delta Exports, Inc., Docket Number 97-3701, Division D, 14th Judicial District Court, Parish of Calcasieu, Defendant Attorneys were faced with clear conflicts of interest for which they should have withdrawn from their representation of Waste Management, yet did not. Waste Management contends that it was wrongfully required to pay its portion of a judgment with interest of over $1,800,000.00 due to Defendant Attorneys’ malpractice.

On December 27, 2006, Defendant Attorneys filed an Exception of Peremption which was granted by the trial court on October 23, 2007. As a result, all of Waste Managements’ claims against Defendant Attorneys stemming from alleged acts that occurred prior to May 26, 2005 were dismissed with prejudice.

Defendant Attorneys filed a motion for summary judgment on November 14, 2008, asserting that the evidence supported their position that they did not breach their duty to Waste Management. After a hearing on May 8, 2009, the trial court | odenied Defendant Attorneys’ motion for summary judgment, citing insufficient discovery. A concomitant judgment was signed by the trial court on May 19, 2009.

On May 6, 2011, Defendant Attorneys filed a second motion for summary judgment. Unlike their previous motion, Defendant Attorneys asserted that the doctrine of equitable estoppel precluded Waste Management’s claims. Defendant Attorneys’ motion for summary judgment was heard and granted by trial court on March 2, 2012. On March 30, 2012, the trial court signed a judgment granting Defendant Attorneys’ motion for summary judgment declaring “all remaining claims of [Waste Management] versus [Defendant Attorneys] covered by the [motion for summary judgment], that is, all such claims arising from events occurring on or after May 25, 2005, are dismissed with prejudice.” It is from this judgment that Waste Management appeals.

ASSIGNMENT OF ERROR

On appeal, Waste Management asserts the following:

The trial court erred in granting the [Defendant [Attorneys’ [m]otion for [s]ummary [judgment] on the basis of the equitable estoppel doctrine when, under the facts presented, this doctrine does not apply because it is undisputed that[:]
A. Waste Management made no false or misleading representation of fact; and
B. The [Defendant [Attorneys never changed their position in reliance on any conduct or representations of Waste Management.

LAW AND DISCUSSION

In order to establish a claim for legal malpractice, a plaintiff must prove that (1) there was an attorney-client relationship; (2) the attorney was negligent in his representation of the plaintiff; and (3) the plaintiff sustained a loss as a result of the | ¿attorney’s negligence. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129; Morgan v. Simon, 00-1556 (La.App. 3 Cir. 2/28/01), 780 So.2d 626.

As this matter comes to us on an appeal of the grant of a summary judgment, we note that summary judgments are reviewed de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. La.Code Civ.P. art. 966(B). A de novo review is the proper standard of review in a summary judgment case where there are contested issues of fact. Guillot v. Guillot, 12-109 (La.App. 3 Cir. 6/6/12), 92 So.3d 1212. However, “[i]n a case where there are no contested issues of fact[ ] and the only issue is the application of the law to the undisputed facts, ... the proper standard of review is whether or not there has been legal error.” Tyson v. King, 09-963, p. 2 (La.App. 3 Cir. 2/3/10), 29 So.3d 719, 720 (quoting Bailey v. City of Lafayette, 05-29, p. 2 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, 923, writs denied, 05-1689, 05-1690, 05-1691, and 05-1692 (La.1/9/06), 918 So.2d 1054, 1055, and the cases cited therein). In the case at bar, there are no contested facts. The issue before this court is the application of the law to the undisputed facts; therefore, our review is to determine whether the trial court committed legal error when it ruled that the doctrine of equitable estoppel applies and precludes Waste Management’s claims against Defendant Attorneys.

This court, in Roberson v. Lafayette Oilman’s Sporting Clays Shoot, Inc., 02-1275, 02-369, pp. 4-5 (La.App. 3 Cir. 4/30/03), 845 So.2d 1267, 1270, unit denied, 03-1531 (La.9/26/03), 854 So.2d 370, stated:

Equitable estoppel or ‘estoppel in pais’ can be defined as the effect of the voluntary conduct of a party whereby he is barred from asserting rights against another party justifiably relying on such conduct and who has changed his position to his detriment as a result of such reliance. Thus, there are three elements of es-toppel: (1) a representation by conduct or word; (2) justifiable [ r,reliance; and (3) a change in position to one’s detriment because of the reliance.
Elliott v. Catahoula Parish Police Jury, 02-09, p. 1 (La.App. 3 Cir. 5/8/02); 816 So.2d 996, 997 (quoting Wilkinson v. Wilkinson, 323 So.2d 120, 125 (La.1975)).
In Morris v. Friedman, 94-2808, p. 9 (La.11/27/95); 663 So.2d 19, 25, the supreme court further elaborated on this issue: “[A] party having- the means readily and conveniently available to determine the true facts, but who fails to do so, cannot claim estoppel. Further, estoppels are not favored in our law, and properly apply only as to representations of fact.... Finally, ‘[e]quitable considerations and estoppel cannot be permitted to prevail when in conflict with the positive written law.’ ”

Waste Management contends that at least two of the essential elements required for the doctrine of equitable estop-pel to apply — false or misleading representations and a change in position in reliance upon said false or misleading representations — were absent in this case; therefore, it was error for the trial court to grant Defendant Attorneys’ motion for summary judgment and dismiss its claims based upon equitable estoppel. Relying heavily upon our supreme court’s holding in MB Industries, LLC v. CNA Insurance Co., 11-303, 11-304 (La.10/25/11), 74 So.3d 1173, Waste Management argues that “[w]hen the test and factors set out in MB Industries are applied to the facts of this case, it is clear that the trial court made a patently erroneous decision in applying equitable estoppel.”

In MB Industries, 74 So.3d 1173, the defendants urged that the doctrine of equitable estoppel precluded the plaintiffs’ claims on the basis that the plaintiffs effectively waived their right to sue defendants for legal malpractice when the plaintiffs failed to perfect an appeal in the underlying litigation. Our supreme court rejected defendants’ arguments stating:

A claim of waiver by failure to appeal is thus not “equitable estoppel” as the doctrine has been defined by this Court. Strictly speaking, equitable estoppel applies only where a party has made false IfiOr misleading representations of fact and the other party justifiably relied on the representation. State v. Mitchell, 337 So.2d 1186, 1188 (La.1976). We must narrowly construe this argument, as “estoppel is not favored in our law,” Id., and estoppel is a “doctrine of last resort.” Howard Trucking Co., Inc. v. Stassi, 485 So.2d 915, 918 (La.1986). Because [plaintiffs] decision not to pursue an appeal was not a representation of fact which [defendants] justifiably relied upon to their detriment, equitable estoppel does not apply.
The issue is more properly framed as a failure to mitigate damages....

Id. at 1180-81.

Specifically, Waste Management asserts that Defendant Attorneys failed to prove that “Waste Management made affirmative ‘false or misleading representations of fact ’ ” and that “Waste Management caused [Defendant Attorneys] to rely on this to their detriment and change their position.”

Defendant Attorneys argue that Waste Management’s reliance upon MB Industries, 74 So.3d 1173, is misplaced. We agree. Waste Management fails to recognize the clear distinction between the facts herein and those in MB Industries. Waste Management made certain representations to Defendant Attorneys. Defendant Attorneys relied upon and changed their position based upon said representations. Waste Management argues, however, that because the representations upon which Defendant Attorneys relied were not “false or misleading representations,” estoppel does not apply. We disagree.

Since being named a defendant in the supplemental and amending petition filed on January 23, 1998, in the underlying litigation, Waste Management’s defense was handled by counsel representing Penn-America Insurance Company (Penn-America). Penn-America was the insurer of Delta Exports, Inc., the subcontractor whom Waste Management hired to perform the debris removal. In September 2001, Defendant Attorneys substituted themselves as counsel of record, |7and their involvement in this litigation and representation of Waste Management began.

Waste Management admittedly retained separate, independent counsel in April 2004, when it hired the law firm of Taylor, Wellons, Politz & Duhé (the Taylor Firm). However, the Taylor Firm never officially enrolled as counsel of record in representation of Waste Management in the underlying litigation. After the April 2004 jury trial in the underlying litigation, the trial court held that Waste Management was not an insured under the Penn-America insurance policy.

On June 7, 2004, Michael Mentz, an attorney hired by Penn-America to represent only its interests, sent written correspondence advising Waste Management that Penn-America was taking the position that Waste Management was not an insured under its policy. Mr. Mentz’s letter advised Waste Management that should the Taylor Firm consent, Defendant Attorneys would withdraw from their representation of Waste Management. The letter stated: “In light of Penn-America’s position relative to Waste Management’s status under its policy, if Waste Management is not comfortable with [Defendant Attorneys] continued representation ... Penn-America will pay [the Taylor Firm’s] attorney[ ] fees and costs to undertake the defense of Waste Management solely in that litigation.” Waste Management elected not to officially enroll the Taylor Firm as its counsel.

At a post-trial hearing, also in June 2004, Defendant Attorney, Albert D. Gi-raud, argued the holding of Steptore v. Masco Construction Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213, in an effort to obtain a favorable judgment of coverage for Waste Management under Penn-America’s policy. In Steptore, 643 So.2d 1213, our supreme court held that an insurer which accepts coverage and does not timely assert coverage defenses is deemed to have waived those defenses, |seven if valid. However, despite Mr. Giraud’s urging of Steptore, the trial court allocated all of the available insurance coverage provided by Penn-America to Delta and none to Waste Management.

In November 2004, Mr. Giraud also sent written correspondence by electronic mail to the Taylor Firm extending much of the same offer as was previously made by Mr. Mentz the preceding June. Mr. Giraud even attached to the e-mail a motion for the Taylor Firm to substitute as counsel of record for Waste Management. Again, Waste Management did not elect to officially enroll the Taylor Firm as its counsel.

Waste Management alleges that Defendant Attorneys’ representation of its interests during the appeal of the underlying litigation’s jury verdict was marred by Defendant Attorneys’ conflicts of interest by continuing to also represent Penn-America. Waste Management contends that because Defendant Attorneys did not continue to cite and argue the holding of Step-tore in the writ applications both to this court and to the Louisiana Supreme Court, Defendant Attorneys breached their duty to competently represent Waste Management’s interests.

Defendant Attorneys counter by arguing that the Taylor Firm was provided copies of its appellate pleadings, and the only feedback it ever received was grammatical and stylistic suggestions. The Taylor Firm did not seek to have Defendant Attorneys urge the holding in Steptore in its writ applications. Defendant Attorneys assert, however, that it was argued, though unsuccessfully, that the trial court erred in ruling that Waste Management was not insured under Penn-America’s policy.

In the instant matter, the trial court, in ruling on Defendant Attorneys’ motion for summary judgment, stated:

[flTo say that Waste Management hired an attorney, an independent attorney, for them to kind of keep an eye on what was happening to protect their interests; and these attorneys or that firm, [were] actively involved in the preparation of these writ applications to the Third Circuit and to the Louisiana Supreme Court, made suggestions, never made the direct suggestions or the specific suggestions that ... Steptore be argued. They just can’t have it both ways.
I do believe that equitable estoppel appliesf ] in this case, because it’s not fair. It’s just not fair to kind of invite them in to do certain things and go along with them, and even say the brief looks okay to me. And now complain, you blew it, when they were given a chance to respond! ] on behalf of Waste Management; and to advise Waste Management, which obviously, they did and have done; and probably continue to do....
... [I]t just seems unfair for [the Taylor Firm], as an agent representative attorney for Waste Management, to be actively, not passively, involved in preparing the Post-verdict pleadings, and the appellate — being involved in the appellate process, and then come back; and Waste Management gets the opportunity to hold those, who [the Taylor Firm] consulted with and collaborated with, responsible. You just can’t have it both ways.
... I find that Waste Management is estopped from asserting any claims against the attorneys in this instance. I find in favor of the [Defendant Attorneys] in this case; and I’m going to grant the Motion for Summary Judgment.

The first element of estoppel — a representation by conduct or word — was satisfied by Waste Management’s conduct. Despite benefit of its own separate legal counsel (the Taylor Firm), Waste Management declined Defendant Attorneys offers to withdraw. Defendant Attorneys relied upon Waste Management’s acquiescence, inferring that Waste Management did not believe a conflict of interest existed to necessitate Defendant Attorneys’ withdrawal.

The second element of estoppel— justifiable reliance — is present. Defendant Attorneys sent a motion to Waste Management for the Taylor Firm to substitute as counsel of record for Waste Management. Still, Waste Management took no action and did not file said motion. Defendant Attorneys reasonably assumed and relied upon the fact that Waste Management did not wish for Defendant Attorneys |,nto withdraw. We find that Waste Management’s acquiescence constituted a misleading representation, contrary to Waste Management’s position that there were no “false or misleading representations of fact” upon which Defendant Attorneys justifiably relied and to which equitable estoppel applies. MB Industries, 74 So.3d at 1180.

The third and final element of es-toppel — a change in position to one’s detriment because of the reliance — is likewise present. Defendant Attorneys reasonably inferred that Waste Management was satisfied with its legal representation and did not consider the existence of a possible conflict of interest as necessitating its withdrawal; therefore, Defendant Attorneys changed their position from withdrawing as counsel of record to remaining as counsel of record. Defendant Attorneys even voluntarily kept Waste Management’s separate, independent counsel, the Taylor Firm, apprised of the efforts of their representation. As stated by the trial court, Waste Management “can’t have it both ways.”

In brief, counsel for Waste Management repeatedly claims that Defendant Attorneys had a “non-waivable conflict of interest.” Whether or not Defendant Attorneys had a non-waivable conflict of interest is an ethical issue governed by the Rules of Professional Conduct regulating the actions of members of the Louisiana State Bar Association and not a matter before this court. Furthermore, the issue of a non-waivable conflict of interest was not specified as an error and is not properly before the court for consideration. See Uniform Rules-Courts of Appeal, Rule 1-B; Charles v. Landry, 09-1161 (La.App. 3 Cir. 3/10/10), 32 So.3d 1164.

Considering the facts and applicable law set forth above, we find that the record supports the finding of the trial [ncourt, and we find no legal error in the trial court’s judgment. Defendant Attorneys clearly relied on the conduct, or in this case, the silence and acquiescence of Waste Management, to infer that it did not object to Defendant Attorneys’ representation. To hold otherwise would be to render an unfair and unjust result. The trial court was legally correct in applying the law of equitable estoppel to the facts of this case.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Defendants/Appellees, Albert D. Giraud, J. Michael Nash, and Ginger K. DeForest, is affirmed. Costs of this appeal are assessed against Plaintiff/Appellant, Waste Management of Louisiana, LLC.

AFFIRMED.


author: TERRI F. LOVE, Judge.

text:
    Joseph MEISCH v. DEPARTMENT OF POLICE.
    No. 2012-CA-0702.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2013.

      Donovan A. Livaccari, Livaccari Villar-rubia Lemmon, LLC, New Orleans, LA, for Appellant/Joseph Meisch.
    Victor L. Papai, Jr., Deputy City Attorney, Gregory Brumfield, Jr., Assistant City Attorney, Brandon A. Brisco, Law Clerk, Richard F. Cortizas, City Attorney of New Orleans, New Orleans, LA, for Appellee/Department of Police.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   TERRI F. LOVE, Judge.

| Joseph Meisch was terminated from his position as a New Orleans lieutenant police officer for his failure to report observations of possible criminal activity in a timely fashion. The Civil Service Commission found that Meisch was disciplined for cause, his discipline was commensurate with his offense and that there was no violation of Meisch’s constitutional right to due process. We find the Civil Service Commission did not act arbitrarily or capriciously in concluding that Meisch was disciplined for cause and the discipline was commensurate with the offense for violations of Rule 8, Paragraph 1, Professionalism and Rule 4, Paragraph 4b, Neglect of Duty (Supervisory Responsibility). Further, we find that there was no violation of his constitutional right to due process. As to the Civil Service Commission’s determination that Meisch violated and was disciplined for Rule 4, Paragraph 2, Instructions from an Authoritative Source, we vacate and set aside the Appointing Authority’s finding.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Joseph Meisch was a lieutenant with the New Orleans Police Department (“NOPD”) in the Fourth District when Hurricane Katrina struck the City of New Orleans. On September 2, 2005, Meisch was assisting the United States Border LPatrol and other NOPD officers to clear a plot of land for a helicopter landing behind the district station, which faced the levee of the Mississippi River. On that date, he observed two vehicles driving on the paved portion of the levee. The first vehicle drove off of the levee toward the river. The second vehicle, a truck, remained about two hundred yards behind. Soon after observing the first vehicle disappear behind the levee, Meisch observed black smoke emanating from the area where the vehicle disappeared. Meisch then observed Police Officer Greg McRae (“McRae”) appear from the area where the vehicle had left the road and from where smoke was rising. Meisch testified that he observed McRae come down the levee towards the district compound. As McRae approached Meisch, McRae told him, “don’t worry about it.” Quickly thereafter, Lieutenant Dwayne Scheuermann (“Scheuermann”) approached from Meisch’s right side. As Scheuermann walked past Meisch, Scheuermann said, “I’ve got it.” Meisch testified that he took that to mean that Scheuermann was handling “what transpired where Officer McRae was coming from.” Meisch stated that he saw no reason to investigate or report what he observed to his commander because another police lieutenant told him that he was handling the matter. He further stated that he knew that McRae worked for Scheuermann, and that Scheuermann was in a better position to investigate his own officer.

Meisch testified that two or three days later on September 5, 2005, around 3:00 a.m. he walked to the top of the levee hoping to get a cell phone signal to call his ■wife. At the top of the levee and aided by flashlight, he observed a burned [ (¡vehicle containing what appeared to be human remains. Meisch stated that he was startled by what he observed. His only action at that time was to make a notation in a notebook, which he left at the Fourth District when he was later reassigned. Due to the challenges Hurricane Katrina presented, including lack of resources and a need to prioritize, NOPD officers were instructed by NOPD Command Staff to note the location of the deceased and leave bodies where they lie for later retrieval. Meisch noted that in the wake of Hurricane Katrina there was no morgue for dead bodies and no detectives to investigate potential crimes.

Meisch testified that in 2009, he read a Times Picayune article detailing a federal investigation into a possible homicide committed by a New Orleans police officer. The article included allegations that McRae and Scheuermann attempted to destroy evidence of the dead body by driving the vehicle containing the body to the far side of the levee and incinerating the vehicle. After reading the article, Meisch testified he “put two and two together” and realized that in 2005 he may have observed the commission of a crime involving McRae and Scheuermann. Meisch then reported to his commander, Captain Robert Norton, asking for furlough to speak to the FBI agents conducting the criminal investigation. Meisch did not report what he knew to his commander, anyone in the police chain of command, or the Public Integrity Bureau (PIB). Meisch cooperated with the criminal investigation and testified at the federal criminal trial involving the factions of various police officers related to the homicide of Henry Glover and the subsequent actions and lack of actions by the New Orleans Police Department.

After testifying under oath in the federal trial, the appointing authority initiated an administrative investigation. Based upon Meisch’s federal trial testimony and the internal investigation that followed, the appointing authority determined that Meisch neglected his duty by failing to report his observations to his commander. Assistant Superintendent Kirk Bouyelas testified that he recommended Meisch’s termination because Meisch “should have done something” after observing the burned car with what appeared to be human remains. Bouyelas reasoned that, while the circumstances of Hurricane Katrina may have excused Meisch’s failure to report what he observed on September 2, 2005, because there was nothing to suggest a commission of a serious crime, once Meisch observed the burned vehicle and human remains, he should have known that it was a potentially serious matter possibly involving police officers. Bouye-las also testified that even assuming Meisch did not realize the seriousness of what he observed until 2009, he should have reported his observations internally to PIB as well as to the federal authorities.

Meisch filed a timely appeal of the disciplinary actions imposed with the Civil Service Commission of New Orleans (“CSC”). The CSC found that the NOPD disciplined Meisch for cause and denied his appeal. Meisch’s appeal to this Court followed.

\ STANDARD OF REVIEW

The CSC has the “exclusive power and authority to hear and decide all removal and disciplinary cases.” La. Const. Art. X, § 12(B). In order to take disciplinary action against a permanent classified employee, cause must be expressed in writing. La. Const. Art. X, § 8(A). This court has previously established that the “appointing authority is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause.” Pope v. New Orleans Police Dep’t, 04-1888, p. 6 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. “Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” Id., 04-1888 at p. 6, 908 So.2d at 5. The burden of proving the impairment rests with the NOPD as the appointing authority. Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990).

In Allen v. Dep’t of Police, 09-0589, p. 3 (La. 4 Cir. 11/12/09), 25 So.3d 966, 969, this court explained the standard of review for appellate courts as follows:

“Appellate courts review the factual findings of the CSC using the clearly erroneous/manifest error standard of review. Madison v. Dep’t of Police, 07-2405, p. 3 (La.4/4/08), 978 So.2d 288, 290. If the findings of the CSC are reasonable, this Court cannot reverse the CSC on appeal. Id. As to the CSC’s determination of legal cause and the punishment awarded, this Court will not disturb the ruling absent evidence of arbitrariness, capriciousness, or characteristics of an abuse of discretion. Cure v. Dep’t of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094-95. A CSC decision is arbitrary and capricious if no rational basis exists as a foundation for the decision. Id., 07-0166, p. 2, 964 So.2d at 1095.”

Meisch raises three assignments of error. He argues the CSC acted arbitrarily and capriciously by (1) determining he was disciplined for cause, (2) | ^determining the discipline was commensurate with the alleged offense, and (3) failing to find a violation of the 14th Amendment of the United States Constitution and Louisiana Const. Art. 1, § 2 regarding due process. We address each assignment of error separately.

DISCIPLINE FOR CAUSE

Pursuant to the Louisiana Constitution,

“No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the appointing authority.”

La. Const. Art. X, § 8(A).

The CSC “has a duty to decide independently from the facts presented whether the appointing authority has a good or lawful cause for taking disciplinary action and if so, whether punishment imposed is commensurate with the dereliction.”. Allen v. Dep’t of Police, supra at 4, 25 So.3d 966 at 970 (quoting Whitaker v. New Orleans Police Dep’t, 03-0512, p. 2 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 574.) As the appointing authority, the NOPD, must prove by a preponderance of the evidence the “occurrence of the complained of activity and that the conduct complained of impaired the efficiency of the public service.” Id.

At Meisch’s hearing, he testified that he was a lieutenant police officer assigned to the Fourth District. He testified that on September 2, 2005, while working behind the police station he observed two vehicles driving along the paved portion of the levee. He then noticed the first vehicle drive off the levee toward the Mississippi River out of his sight, while the second vehicle remained about 200 yards away. Meisch also stated that shortly thereafter he noticed a 17plume of black smoke emanating from the area where the first car disappeared. Meisch testified that he then observed McRae coming down the levee towards the district station. When McRae approached Meisch he recalled McRae telling him, “don’t worry about it.” Almost immediately after, Scheuermann approached the station from Meisch’s right side. As Scheuermann walked past Meisch, Scheuermann said, “I’ve got it.” Meisch stated he believed there was no need to report his observations as another police lieutenant said he was handling it.

Two or three days later, Meisch walked to the top of the levee around 3:00 a.m. attempting to obtain a cell phone signal to call his wife. Aided by a flashlight, Meisch observed a burned vehicle containing what appeared to be human remains; the sight of which startled him. Meisch admits that he immediately connected the burned car with the plume of smoke he had seen three days earlier when Scheuermann and McRae appeared from over the levee behind the district station. Meisch testified that in 2005 his only action in regards to his observations was to note the location of the human remains and car in a notebook.

The appointing authority did not discipline Meisch for his observations on September 2, 2005. The CSC indicated in its decision in regards to the events of September 2, 2005:

“The Appointing Authority determined that the Appellant’s failure to investigate or report what he observed to this point was not a violation of internal rules. At this moment in time, the Appellant only knew that a car had driven off of the levee and that a plume of smoke appeared from where the car had disappeared. He also knew that a police officer may have been involved, but reasonably assumed that his superior officer was aware of what had occurred. The Appointing Authority concluded that the challenges caused by Hurricane Katrina, including the lack of resources and the need to prioritize, explained and justified the Appellant’s decision not to act upon what he observed.”

18This court agrees that Meisch’s failure to investigate or report his observations of September 2, 2005 do not violate the internal rules. The events of September 5, 2005, however, presented a separate duty.

Meisch contends that even after his observations on September 5, 2005, and his notation thereof, he still was not aware of any wrongdoing so as to require compliance with departmental rules and regulations. In assessing the facts, the appointing authority found that Meisch had violated Departmental Rule 3, relating to Professionalism. Specifically, Rule 3, Para. 1, Professionalism states:

“Employees shall conduct themselves in a professional manner with the utmost concern for the dignity of the individual with whom they are interacting. Employees shall not unnecessarily inconvenience or demean any individual or otherwise act in a manner which brings discredit to the employee or the New Orleans Police Department.”

In the present case, Meisch’s knowledge of possible criminal activity and potentially involving two police officers reasonably required him to report his observations. His failure to report discredits the NOPD. When Meisch observed the burned vehicle and the human remains he should have known that it was a potentially serious matter possibly involving the NOPD which could discredit the NOPD in the public’s eye.

Meisch was also charged with violating Rule 4, Paragraph 4b, Neglect of Duty, in his supervisory capacity which states:

A member with supervisory responsibility shall be in neglect of his duty whenever he fails to properly supervise subordinates, or when his actions matters relating to discipline fail to conform to the dictates of Departmental Rules and Regulations.

Meisch argues that because he did not suspect or was cognizant of any wrongdoing by the NOPD, he was not required to conform to any Departmental Rules and Regulations because they “did not come into play.” Even under the 19strained and extraordinary circumstances of Hurricane Katrina, the CSC correctly pointed out that Meisch should have reasonably suspected a possible criminal act based on his observations on September 5, 2009. Thus, his failure to report his observations to PIB, his commander, or any authority in his chain of command did not conform with Departmental Rules and Regulations. It was not sufficient to rely on the brief exchange Meisch had with Scheuermann, even if he was not a suspect at the time, to excuse his duty to report. Furthermore, Meisch testified that when he observed the burned vehicle and the human remains, he suspected something was wrong and immediately linked it to McRae and Scheuer-mann. For these reasons, Meisch had a duty to conform with the Departmental Rules and Regulations.

Additionally, Meisch was charged with violation of Chapter 52.1, Paragraph 15 and 16. Rule 4, Paragraph 2, Instructions from an Authoritative Source, states:

Chapter 52.1 of the Internal Disciplinary Investigations, Paragraph 15 indicates that if a supervisory receives a citizen’s complaint, or observes or is cognizant of misconduct by an employee, the supervisor shall ...
Paragraph 16 indicates that if the violation involves actions or conditions which question the accused employee’s continued ability to perform his/her duty, the supervisor shall take the necessary steps to obtain the proper authorization to have the employee placed on emergency suspension or administrative reassignment.

Meisch has asked this court to clarify the CSC’s ruling regarding whether there was a violation of this rule. Meisch contends that the CSC determined that the appointing authority failed to establish that Meisch’s failure to report violated Rule 4 in regards to Instructions from an Authoritative Source. In a footnote to its decision, the CSC noted:

The Appointing Authority has failed to establish that [Meisch’s] failure to report to PIB violated internal rules regarding Instructions | )0from an Authoritative Source. Reporting to the federal authorities and his commander was sufficient. As the record clearly establishes, PIB was aware and informed of [Meisch’s] activities once he spoke to the FBI.

As the facts relate to Meisch’s actions in 2009, this court agrees with the CSC’s determination that Meisch’s actions to report to his commander and the federal authorities was sufficient. In 2009, he had sufficient information to reasonably suspect criminal misconduct involving McRae and Scheuermann.

Notably absent from the record before this court, however, is the basis for the CSC’s finding that Meisch violated Rule 4, Paragraph 2, Instructions from an Authoritative Source, particularly in light of the footnote to its decision. Therefore, this court is unable to discern what the violation is based on considering the CSC found no violation of this rule. Because the record contains insufficient evidence to prove that Meisch was in violation of Rule 4, Paragraph 2, Instructions from an Authoritative Source, we find no rational basis for the CSC’s determination that Meisch violated the departmental rule. See Saacks v. City of New Orleans, 95-2074 (La.App. 4 Cir. 11/27/96), 687 So.2d 432, writ denied, 97-0794 (La.5/9/97), 693 So.2d 769 (finding that the record contained insufficient evidence to prove deputy chief violated departmental'rules). Accordingly, there was no evidence to support the upholding of the violation.

Therefore, we do not find that the CSC was arbitrary and capricious in finding that the NOPD had lawful cause for taking disciplinary action against Meisch for violations of Rule 3, Paragraph 1, Professionalism and Rule 4, Paragraph 4b, Neglect of Duty (Supervisory Responsibility). Furthermore, we vacate and set aside the Appointing Authority’s finding of Meisch’s violation of Rule 4, Paragraph 2, Instructions from an Authoritative Source.

| ^PENALTY COMMENSURATE WITH OFFENSE

The CSC has a duty to determine whether the appointing authority has a good or lawful cause for taking disciplinary action and if so, whether punishment imposed is commensurate with the dereliction. Walters v. Dep’t of Police, 454 So.2d 106, 114 (La.1984); See Taylor v. New Orleans Police Dep’t, 00-1992, p. 3 (La.App. 4 Cir. 12/12/01), 804 So.2d 769, 772 (2001). The discipline must have a rational basis to be commensurate with the dereliction or it is deemed arbitrary and capricious. Staehle v. Dep’t of Police, 98-0216 (La.App. 4 Cir. 11/18/98), 723 So.2d 1031, 1032, 1033; Walters, supra at 114.

Here, Meisch was terminated for one violation of Rule 4, Paragraph 4b, Neglect of Duty (Supervisory Responsibility) and one violation of Rule 4, Paragraph 2, Instructions from an Authoritative Source. Additionally, Meisch was demoted to Police Officer I for a second violation of Rule 4, Paragraph 4b, Neglect of Duty (Supervisory Responsibility) and suspended for 10 days for violations of Rule 3, Paragraph 1, relative to Professionalism. On appeal, Meisch argues that disciplinary action as it relates to Rule 4, Paragraph 4b, Neglect of Duty (Supervisory Responsibility) and Rule 4, Paragraph 2, Instructions from an Authoritative Source was arbitrary and capricious; therefore, we will only address the discipline’s commensurability of these offenses.

Neglect of Duty (Supervisory Responsibility)

Meisch was terminated for violation of Rule 4, Paragraph 4b, Neglect of Duty (Supervisory Responsibility). It is Meisch’s contention that the discipline deviates from the penalty schedule for violations of NOPD rules. Namely, Meisch argues there is a distinction between the penalties for violations of Neglect of Duty 112(General) and violations of Neglect of Duty (Supervisory Responsibility), the latter of which Meisch was charged.

The penalty for violation of Rule 4, Paragraph 4(a), Neglect of Duty (General) differentiates between the severity of the offense (Category 1-3) and whether it is a first, second, or third offense. The penalty for violation of Rule 4, Paragraph 4b, Neglect of Duty (Supervisory Responsibility), however, is differentiated by a first, second, or third offense. Meisch argues that because a first offense’s discipline range is a letter of reprimand to a 30 day suspension, the imposition of a penalty of termination is arbitrary and capricious.

Conversely, the NOPD contends that there is a rational basis for Meisch’s termination. To support its contention the NOPD points to the appointing authority’s reasoning: “when one police officer observes another police officer appear from what he later learns to be a burned-out vehicle containing a dead body, he should be concerned regardless of the distractions and hardships caused by Hurricane Katrina.” The NOPD contends that the violation was egregious constituting a category 3 offense and is one that: “may affect the rights and liberties of another; affect job performance; and/or involves a serious administrative or criminal violation.” We find that based on the facts and circumstances surrounding this case the violation was such that it affected the rights and liberties of another, job performance of the NOPD, and involved a criminal violation. Thus, because of the severity of the offense and the degree to which the violation affects, we conclude that there is a rational basis for terminating Meisch and the CSC did not act in an arbitrary and capricious manner.

Instructions from an Authoritative Source

|1sAs previously addressed above, because this court finds that there is insufficient evidence to prove that Meisch violated Rule 4, Paragraph 2, Instructions from an Authoritative Source, this court also finds the penalty of termination imposed by the Appointing Authority and upheld by the CSC was erroneous.

Performance of Duty (Supervisory Responsibility)

Finally, Meisch avers that his demotion from the rank of police lieutenant to police officer is a departure from the penalty schedule. A first offense violation of Rule 4, Performance of Duty, Paragraph 4b, Supervisory Responsibility carries with it a penalty of a letter of reprimand to a 80 day suspension. The record reflects that Meisch was demoted to the rank of a police officer. This discipline is not in accordance with the penalty schedule for a violation of Rule 4, Performance of Duty, Paragraph 4b, Supervisory Responsibility. Based on the facts and circumstances of this case and the serious ramifications Meisch’s failure to comply with departmental rules and regulations had, we find there was a rational basis for his demotion.

VIOLATION OF DUE PROCESS RIGHTS

Meisch also argues that as a result of not receiving adequate notification he was not able to properly prepare his defense at the disciplinary hearing. The United States Supreme Court has held that a “tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 556, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985).

Meisch was aware that the disciplinary hearing was with regard to his actions and observations on two specific days in September 2005 in conjunction 1 uwith his testimony in the federal criminal trial involving the murder of Henry Glover. Meisch was reasonably informed of the charges against him in addition to the evidence before the appointing authority, namely his federal criminal trial testimony. In light of these facts, Meisch was adequately informed of the charges against him and was afforded an adequate opportunity to present his defense. Therefore, we do not find that there was a violation of Meisch’s due process rights.

DECREE

For the reasons set forth above, we affirm and find the CSC did not act arbitrarily or capriciously in concluding that Meisch was disciplined for cause and the discipline was commensurate with the offense as it relates to violations of Rule 3, Paragraph 1, Professionalism and Rule 4, Paragraph 4b, Neglect of Duty (Supervisory Responsibility). We also find that there was no violation of his constitutional rights to due process. Furthermore, we find that there was insufficient evidence to support a violation of Rule 4, Paragraph 2, Instructions from an Authoritative Source. Accordingly, we affirm in part and vacate and set aside in part.

AFFIRMED IN PART; VACATED AND SET ASIDE IN PART.

DYSART, J., concurs in the result.

      .A specialized Disaster Mortuary Operational Response Team (DMORT) later retrieved the bodies. However, the NOPD did not conduct an investigation into the deaths due to the circumstances associated with Hurricane Katrina and its effects.

      . Through the federal investigation in which Joseph Meisch testified, Henry Glover was identified as the victim of the homicide committed by a New Orleans police officer.

      . USA v. Warren, et al., LAED Case # 10-CR-154.