author: HIGGINBOTHAM, J. KUHN, J., WELCH, J., KUHN, J.,

text:
    PHYLWAY CONSTRUCTION, LLC v. TERREBONNE PARISH CONSOLIDATED GOVERNMENT.
    No. 2013 CA 1589.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 5, 2014.
    Opinion on Denial of Rehearing Nov. 19, 2014.

      John I. Hulse, IV, Metairie, LA, for Plaintiff/Appellant, Phylway Construction, LLC.
    Charles F. Seemann, Jr., New Orleans, LA, for DefendanVAppellee, LA Contracting Enterprise, LLC.
    Murphy J. Foster, III, Steven B. Loeb, Baton Rouge, LA, for Plaintiff-in-Intervention/Appellee, Byron E. Talbot Contractor, Inc.
    Courtney E. Alcock, Houma, LA, for Defendant-Appellee, Terrebonne Parish Consolidated Government.
    Before KUHN, WELCH, HIGGINBOTHAM, CRAIN, and THERIOT, JJ.
   HIGGINBOTHAM, J.

| aThis case arises out of a public bid dispute. At issue is whether the trial court erred in failing to enforce a mandatory requisite in the advertised bid specifications that actually required more of the bidders than outlined in the pertinent version of the Louisiana Public Bid Law, La. R.S. 38:2211 et seq. After reviewing the record and applicable law, we find the trial court erred, and we reverse the judgment of the trial court and remand for further proceedings.

BACKGROUND

In mid-August 2012, the Terrebonne Parish Consolidated Government (“the Parish”) began advertising an invitation for bids pursuant to the Louisiana Public Bid Law for the construction of Phase I of the Bayou Gardens Boulevard Extension— Roadway Embankment Project (“the Project”). The Project bid form, documents, and specifications utilized the Louisiana Uniform Public Works Bid Form (“the bid form”) mandated for public works by the Louisiana Public Bid Law at La. R.S. 38:2212.

The invitation to bidders, as advertised and included in the bid form, provided:

A bid will be considered responsive if it conforms in all respects with the conditions and requirements of the Bidding Documents. In order to be considered responsive, the Louisiana Uniform Public Works Bid Form must: (a) be fully completed, signed and be responsive in all respects to the Bidding Documents; (b) be made on the Bid Forms provided and submitted intact. (Emphasis added.)

The bid form contained a “DEFINED TERMS” section, defining “Bidding Documents” as:

Documents usually including advertisement, bid notice or invitation to bidders, instructions to bidders, bid form, form of contract, contract documents and specifications, forms of bonds, conditions of contract, drawings, all addenda issued prior to receipt of bids, specifications addenda, special provisions, and all other written instruments prepared by or on behalf of a public entity for use by prospective bidders on a public contract. (Emphasis added.)

[.■¡Additionally, the bid form contained a section entitled “PREPARATION AND SUBMISSION OF BIDS” that included a requirement for an Attestation Clause regarding past criminal convictions of bidders. The requirement specifically provided that each bidder, as opposed to the lowest bidder required by the pertinent version of La. R.S. 38:2227(A) , was mandated to submit the completed criminal record Attestation Clause within ten days after the opening of the bids. The bid form stated, in pertinent part:

12.6 In accordance with La. R.S. 38:2227, each bidder on this project must submit the completed Attestation Clause (Past Criminal Convictions of Bidders) form found within these bid documents. The fully executed Attestation Clause form shall be RECEIVED by the TERREBONNE PARISH CONSOLIDATED GOVERNMENT within ten (10) days after the opening of bids. The fully executed Attestation Clause form is NOT required to be included with the bid form and is to be submitted separately within ten (10) days after the opening of bids. The submission should be identified with the name of the bidder, the project on which he is bidding, and the words ATTESTATION CLAUSE. Forms may be sent via U.S. Mail, express mail, or hand delivered[.] (Emphasis added.)

The bid form also contained an “AWARD OF CONTRACT” section that provided, in pertinent part:

L16.3 In order to be responsive, prior to award and as a condition of award, each bidder must submit the additional documentation required by the Bidding Documents or requested by the OWNER. (Emphasis added.)
16.10 If the Contract is to be awarded for [the Project], it will be awarded to the lowest, qualified, responsive and responsible Bidder as determined by the evaluation of the corresponding Bid. (Emphasis added.)
16.12 In the event of failure of the lowest responsive, responsible Bidder to sign the Contract ... .the Owner may award the Contract to the next lowest responsive, responsible Bidder. (Emphasis added.)

After advertising the Project, the Parish received nine bids by the posted deadline of September 20, 2012. On that date, the Parish opened the bids and found that LA Contracting Enterprise, LLC (“LACE”) was the apparent low bidder. The second lowest bidder was Byron E. Talbot Contractor, Inc. (“Talbot”), and the third lowest bidder was Phylway Construction, LLC (“Phylway”). Phylway issued a formal written letter of protest with the Parish on October 2, 2012, more than ten days after the opening of the bids, challenging the responsiveness of the LACE and Talbot bids and requesting that the Parish award the Project to Phylway, who claimed to be the lowest responsive, responsible bidder. Phylway contended that the LACE and Talbot bids failed to comply with several requirements listed in the bid specifications and/or Bidding Documents, specifically noting their failure to submit the mandatory criminal record Attestation Clause in a timely manner. Talbot submitted its criminal record Attestation Clause on October 3, 2012, after the ten-day time period since the bid opening. Despite Phylway’s protest, the Parish awarded the Project to LACE on October 10, 2012, noting that LACE’s submission of its criminal record Attestation Clause with its bid documents before the opening of the bids was not a violation of the requirements.

liiOn October 17, 2012, Phylway filed a petition seeking mandamus to compel the Parish to reject the alleged non-responsive bids of LACE and Talbot and award the Project to Phylway as the lowest responsive and responsible bidder. Phylway also requested a temporary restraining order (TRO) and an injunction against the Parish to restrain and prohibit the execution of any contract with LACE or Talbot for the Project. The trial court issued a TRO on October 18, 2012, and scheduled a hearing on the requested injunctive relief for October 26, 2012. The Parish opposed the petition and before the hearing, Talbot and LACE intervened, each claiming to be the apparent low bidder on the Project.

After the hearing, the trial court found that LACE’s bid was non-responsive, because it lacked the required articles of organization requested in the Parish’s bid specifications. In its ruling as to LACE, the trial court did not discuss the criminal record Attestation Clause requirement because of the other problem with LACE’s bid. The trial court acknowledged that Phylway’s bid was responsive in all respects, but found that Talbot should be awarded the Project as the lowest responsive bidder ahead of Phylway. The trial court noted a “common sense interpretation” of the criminal record Attestation Clause requirement was that Talbot had ten days from the time it was determined to be the low bidder before it had to file the required criminal record attestation. Thus, the trial court ruled that even though Talbot had not filed its criminal record attestation within ten days of the bid opening, it had filed the Attestation Clause before the hearing where it was determined to be the low bidder, so the trial court concluded that Talbot’s bid was responsive. The trial court signed a judgment on January 14, 2018, denying Phyl-way’s request for injunctive relief and issuing a writ of mandamus ordering the Parish to award the Project to Talbot.

|fiPhylway appealed, assigning three errors regarding the trial court’s ruling as it applied to Talbot: (1) the trial court erred in failing to enforce the mandatory requirements of the advertised bid specifications, which required each bidder to submit to the Parish, within ten days of the bid opening, a fully executed criminal record Attestation Clause; (2) the trial court erred in failing to adhere to mandatory requirements of the Public Bid Law and rulings of the Louisiana Supreme Court, which provide that a public entity has no discretion to waive requirements of its own advertised and published bid specifications; and (3) the trial court erred in failing to find that Talbot’s bid was non-responsive and failing to order the Parish to award the contract for the Project to Phylway. We note that Phylway has not raised any error regarding the trial court’s ruling as to LACE and LACE has not filed its own appeal nor answered Phyl-way’s appeal. Thus, we decline any consideration of the trial court’s ruling that LACE’s bid was non-responsive.

LAW AND ANALYSIS

This litigation is governed by Louisiana’s Public Bid Law, La. R.S. 38:2211 et seq., which is a prohibitory law founded on public policy. Hamp’s Construction, L.L.C. v. City of New Orleans, 2005-0489 (La.2/22/06), 924 So.2d 104,107; State Machinery & Equipment Sales, Inc. v. Iber-ville Parish Council, 2005-2240 (La.App. 1st Cir.12/28/06), 952 So.2d 77, 82-83. The Public Bid Law was enacted in the interest of the taxpaying citizens of this State for the purpose of protecting them against contracts awarded through favoritism and involving exorbitant and extortionate prices. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 2004-0211 (La.3/18/04), 867 So.2d 651, 656.

A political entity such as the Parish has no authority to take any action that is inconsistent with the Public Bid Law. Id. Louisiana Revised Statutes 1738:2212(A)(l)(b)(i) clearly and unambiguously provides that the public entity may not waive (1) any requirements of the Public Bid Law, (2) any requirements declared in the advertisement for bid, or (3) any requirements stated on the bid form. Hamp’s Construction, 924 So.2d at 110-11. Consequently, once the public entity establishes a requirement in its advertisement or bid form, that requirement must be uniformly followed by all bidders. Id. at 111.

In light of Hamp’s Construction and its progeny, it is clear that when a public entity, such as the Parish in this case, elects to place certain requirements that differ from statutory requirements in its advertisements for bids and on its bid forms, then that entity is bound by those advertised requirements and bid form specifications in addition to the statutory requirements, and may not choose to waive them at a later date. We extend this reasoning to include requirements and instructions in advertisements and bid forms that may exceed what is required by the Public Bid Law, as long as the statutory requirements are also met. See Concrete Busters of Louisiana, Inc. v. Board of Com’rs of the Port of New Orleans, 2010-1172 (La.App.4th Cir.2/2/11), 69 So.3d 484, 489. Thus, we conclude the Parish was bound by its advertised instructions and bid form requirement that “each bidder” submit a completed criminal record Attestation Clause within ten' days after the opening of the bids, since “each bidder” would necessarily include the “lowest bidder” that is highlighted in the amended version of the criminal record Attestation Clause required by the statute. See La. R.S. 38:2227(A), as amended by Acts 2012, No. 598, § 1, effective August 1, 2012, and La. R.S. 38:2212(A)(l)(b)(ii)(bb), as amended by Acts 2012, No. 823, § 1, approved June 14, 2012, and effective August 15, 2012.

The Parish’s requisites regarding the criminal record Attestation Clause for “each bidder” obviously goes over and above the amended statutory requirements found in the Public Bid Law, which provides that only the “lowest bidder” must submit the Attestation Clause within ten days after the bid opening. However, we |sare not persuaded that the extra requirement in the bid form necessitates a different result in this case. The starting point in the interpretation of any statute is the language of the statute itself. In re Clegg, 2010-0323 (La.7/6/10), 41 So.3d 1141, 1154. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. Id. The meaning and intent of a law is determined by considering the law in its entirety, and all other laws on the same subject matter, and by placing a construction on the law that is consistent with the terms of the law and with the obvious intent of the legislature in enacting the law. Id. Questions of law, such as the proper interpretation of a statute, are reviewed by this court under a de novo standard of review, without deference to the legal conclusions of the lower court. Saizan v. Pointe Coupee Parish School Bd., 2010-0757 (La.App.lst Cir.10/29/10), 49 So.3d 559, 564, writ denied, 2010-2599 (La.1/14/11), 52 So.3d 905.

The record reflects that Talbot, as a bidder on the Project, did not submit its criminal record Attestation Clause within ten days after the bid opening as plainly required by the Parish’s bid form specifications, as well as the amended version of the statute. See La. R.S. 38:2212(A)(l)(b)(ii)(bb) (“The ten-day period shall not be altered or waived by any public entity[.]”) Conversely, Phylway did timely file its criminal record Attestation Clause within the ten-day period. Louisiana Revised Statutes 38:2212(A)(l)(b)(i) clearly states that the provisions and requirements of the statute and those “stated in the advertisement for bids, and those required on the bid form shall not be waived by any entity.” (Emphasis added.) The statute unambiguously declares that the requirements in the bid form (that each bidder must submit a completed criminal record Attestation Clause within ten days after the opening of the bids) may not be waived by the public entity, the Parish, in this ease. We disagree with the trial court’s interpretation and application of La. R.S. 38:2212 and 38:2227, allowing Talbot ten days after the |9trial court had determined Talbot to be the low bidder to submit the criminal record Attestation Clause. Talbot did not timely submit the required Attestation Clause .within ten days of the opening of the bids. After considering the Public Bid Law in its entirety, we conclude the trial court erred in finding that Talbot was the next lowest responsive, responsible bidder and in denying injunctive and mandamus relief for Phylway.

The record does not reflect whether the Project proceeded with Talbot; therefore, it is not known at this time whether the injunctive and mandamus remedies are still available to Phylway. Since Phylway timely sought an injunction, it may be entitled to recover damages that it sustained due to the Parish’s award of the Project pursuant to a non-responsive bid. See Command Const. Industries, L.L.C. v. City of New Orleans, 2013-0524 (La.App.4th Cir.10/23/13), 126 So.3d 716, 723. See also D & O Contractors, Inc. v. St. Charles Parish, 2000-882 (La.App.5th Cir.2/28/01), 778 So.2d 1285, 1290, writ denied, 2001-1213 (La.6/29/01), 794 So.2d 812. We make no determination as to whether Phylway is entitled to damages, as that issue is not currently before us. Accordingly, we remand this matter to allow Phylway to further pursue its claims for injunctive relief, mandamus, or damages.

CONCLUSION

We conclude that the trial court erred when it improperly awarded the Project to Talbot, who was a non-responsive bidder. The trial court’s judgment is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal, totaling $2,341.50, are equally assessed between defendant/appellee, Terrebonne Parish Consolidated Government, and plaintiff-in-intervention/appellee, Byron E. Talbot Contractor, Inc.

REVERSED AND REMANDED.

KUHN, J., dissents and assigns reasons.

WELCH, J, dissents for the reasons assigned by Judge KUHN and assigns additional reasons.

KUHN, J.,

dissenting.

|il disagree with the majority reversal and remand and would, instead, affirm the trial court’s judgment that orders the Ter-rebonne Parish Consolidated Government to award the project to Byron E. Talbot Contractor (BET). Under the plain language of the present version of La. R.S. 38:2212, the trial court correctly concluded that BET was a responsive bidder with the second lowest bid. I disagree that “Hamp’s Construction[, 2005-0489 (La.2/22/06), 924 So.2d 104,110-11] and its progeny” mandate a reversal.

As noted in Hamp’s Construction, at the time of the supreme court’s decision, La. R.S. 38:2212(A)(l)(b) stated, “The provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any public entity.” Subsequent to that decision, by La. Acts 2008, No. 727, § 1, the Louisiana legislature amended La. R.S. 38:2212(A)(l)(b), re-designating the provisions quoted in Hamp’s Construction as subparagraph (i) and adding, among others, the following provisions:

(ii)(aa) The division of administration, office' of facility planning and control, shall develop and prescribe through the promulgation of rules and regulations in accordance with the Administrative Procedure Act the bid form necessary to obtain the information and to implement the sections of the bid form provided for in this Item to be utilized for the public bid of public works projects. The bid form developed shall require only the information necessary to determine the lowest bidder and the following sections and information: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Bid Total, Signature of Bidder, Name, Title and Address of Bidder, Name of li>Firm or Joint Venture, Corporate Resolution and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth.
(bb) Other documentation and information required shall be furnished by the low bidder at a later date, in accordance with the Bidding Documents. (Emphasis added.)

As of La. Acts 2012, No. 828, § 1, sub-paragraph (bb) was amended to state in pertinent part:

Other documentation and information required including but not limited to the low bidder’s attestation pursuant to R.S. [88:2227] shall be furnished by the low bidder within ten days after the bid opening. The ten-day period shall not be altered or waived by any public entity.... (Emphasis added.)

Reading Subsection (A)(l)(b)(i) in pari materia with subparagraphs (ii)(aa) and (bb), the statute states in plain language, “The provisions and requirements of this Section ... and [the provisions and requirements] required on the bid form shall not be waived by any public entity.” Sub-paragraph (A)(l)(b)(ii)(aa) expressly describes the “provisions and requirements required on the bid form” as “only the information necessary to determine the lowest bidder and the following sections and information: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Bid Total, Signature of Bidder, Name, Title and Address of Bidder, Name of Firm or Joint Venture, Corporate Resolution and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth.” Therefore, under the plain language of La. R.S. 38:2212(A)(l)(b), the low bidder’s attestation pursuant to La. R.S. 38:2227 is not among “the provisions and requirement[s] required on the bid form,” (emphasis added) which cannot be waived by the public entity.

| gAccording to the actual bid form the Terrebonne Parish Consolidated Government provided to potential bidders, Section 12.6 stated:

In accordance with La. R.S. 38:2227, each bidder on this project must submit the completed Attestation Clause (Past Criminal Convictions of Bidders) form found within these bid documents. The fully executed Attestation Clause form shall be RECEIVED by the TERRE-BONNE PARISH CONSOLIDATED GOVERNMENT within ten (10) days after the opening of the bids. The fully executed Attestation Clause form is NOT required to be included with the bid form and is to be submitted separately within ten (10) days after the opening of the bids. The submission should be identified .with the name of the bidder, the project on which he is bidding, and the words ATTESTATION CLAUSE. Forms may be sent via U.S. Mail, express mail, or hand delivered ....

At the time of the invitation to bid, La. R.S. 38:2227 provided:

Each public entity advertising and letting for bid a public works contract shall require the lowest bidder, in addition to the provisions of R.S. 38:2212(A)(3)(c)(ii), after the opening of bids, if a sole proprietor, to attest that he has not been convicted of, or has not entered a plea of guilty or nolo contendere to any of the crimes or equivalent federal crimes listed [below].

Thus, Section 12.6, which references La. R.S. 38:2227 whose provisions mandate only that the public entity require “the lowest bidder ” to submit an attestation of no proscribed criminal activity, expressly requires that “each bidder” submit the attestation and creates an ambiguity on the face of the bid form.

Because the attestation requirement is not among “the provisions and requirement[s] required on the bid form” (emphasis added) under La. R.S. 38:2212(A)(l)(b)(ii), i.e., the attestation is not “information necessary to determine the lowest bidder” or the “Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Bid Total, Signature of Bidder, Name, Title and Address, of Bidder, Name of Firm or Joint Venture, Corporate Resolution and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth,” the Terrebonne Parish'Consolidated Government may waive the | application of the provisions of Section 12.6 in accordance with the plain language of La. R.S. 38:2212(A)(l)(b)(i).

In applying the plain language of La. R.S. 38:2212(A)(l)(b) to the facts of this case, it is important to note that when the supreme court applied the Public Bid Law to the facts before it in Hamp’s Construction, the provisions of subparagraph (A)(1)(b)(ii)(aa) and (bb) as they exist today had not yet been enacted by the legislature. In light of the lack of any statutory language defining “the provisions' and requirements required on the bid form” under La. R.S. 38:2212(A)(l)(b), the construction undertaken in Hamp’s Construction is inapposite to the case at hand.

It is undisputed that BET supplied the “other documentation” attestation of no proscribed criminal activity prior to the trial court’s determination that it was a responsive bidder -with the second lowest bid and in conformity with La. R.S. 38:2212(A)(l)(b)(ii)(bb). Thus, the trial court correctly ordered Terrebonne Parish Consolidated Government to award the project to BET. Accordingly, I would affirm the judgment.

WELCH, J.,

dissenting.

hi disagree with the majority opinion for the reasons set forth by Judge Kuhn. In addition, I believe that the Parish did not intend for there to be additional requirements on the bidders other than those established by the version of La. R.S. 38:2227 that was in effect at the time the Parish began advertising for the project. In accepting the bid of Talbot, which complied with the amended version of La. R.S. 38:2227, the Parish evidenced its intent that those were the conditions it intended to place on the bidders. There was no evidence that the Parish intended to make the requirements of the prior law an additional requirement on the bidders.

The purpose of the bid process is to protect the taxpaying citizens of this state by ensuring that public contracts go to the lowest competent bidder, thus saving taxpayer dollars. See Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, '2004-0211 (La.3/18/04), 867 So.2d 651, 656. Talbot was the lowest competent bidder. By reversing the trial court’s decision in this matter, the majority thwarts this purpose as the Parish will not only have to pay Talbot for the work already performed under the contract, but it will also have to pay damages to Phyl-way, which will ultimately be borne by the tax payers and the public fisc.

Thus, I respectfully dissent.

ON REHEARING

Rehearing denied.

KUHN, J.,

dissenting.

_jjl disagree with the majority’s denial of the rehearing. I would grant the request for rehearing filed by Byron E. Talbot Contractor (BET) and affirm the trial court.

In LL&G Construction, Inc. v. Greater Lafourche Port Commission, 2011-1024 (La.5/3/12), 2012 WL 1564350 (an unpublished appeal), this court held that a public entity’s award of a bid to a bidder who submitted its criminal record attestation with the bid documents did not violate either the applicable statutory or the actual bid document temporal requirements. The bid documents in LL&G set a 48-hour time period after the opening of bids for bidders to submit the criminal record attestation. The LL&G court noted that there is no definite time period for submission of the attestations under La. R.S. 38:2227 and adopted the trial court’s analysis in toto. 2011-1024 at p. 4. Thus, the LL&G court concluded that the public entity could not require bidders to submit the attestation contemporaneously with their bids because such a requirement would violate the general requirement of La. R.S. 38:2227 “that the public entity require each bidder, ‘after the opening of bids ... to attest ...to its criminal record under an application of the plain language of La. R.S. 38:2227 (as it existed before La. Acts 2012, No. 598, § 1). 2011-1024 at p. 3.

Presently, the statutory requirement of La. R.S. 38:2227 is that the public entity require the lowest bidder after the opening of bids to make (and hence submit) its attestation. Applying the rationale adopted by the plurality opinion in liLL&G, the requirement that “each” bidder submit a criminal record attestation rather than that the “lowest” bidder submit the attestation clearly violates the general requirement of La. R.S. 38:2227.

I disagree with the majority’s premise that the Terrebonne Parish Consolidated Government’s “requisites regarding the criminal record Attestation Clause for ‘each bidder’ obviously goes over and above the amended statutory requirements found in the Public Bid Law, which provides that only the ‘lowest bidder’ must submit the Attestation Clause within ten days after the bid opening.” Phylway Construction, LLC v. Terrebonne Parish Consolidated Gov., 2013-1589, p. 4 (La. App. 1st Cir.9/5/14), 153 So.3d 516, 522. Where an attestation is requested, the sworn written statements under oath exposes the one attesting to criminal sanctions for any errors. It is obvious that in modifying this requirement by La. Acts 2012, No. 598, § 1 in La. R.S. 38:2227, the legislature was mindful of the privacy rights of unsuccessful bidders. There is absolutely no advantage to the public entity to have attestations from unsuccessful bidders.

As I noted in my dissent, the majority’s ultimate error, of course, lies in its reasoning that Hamp’s Construction L.L.C. v. City of New Orleans, 2005-0489 (La.2/22/06), 924 So.2d 104, is still good law vis-a-vis waivers because under the subsequent enactment of La. R.S. 38:2112(A)(l)(b)(ii)(aa) and (bb), the criminal record attestation is not among the provisions and requirements required of the bid documents such that Terrebonne Parish Consolidated Government may under the Public Bid Law legally waive it insofar as the “each” bidder requirement (under its bid documents) and conform this requirement to the present state of the Public Bid Law, which is that the “lowest” bidder (BET) could, within 10 days attest to its criminal record. Therefore, the trial court correctly concluded that only when BET became the lowest bidder did the attestation submission clock commence. And 13under the LL&G holding, BET’s submission before the expiration of the 10-day period was not a fatal defect. 2011-1024 at p. 4. Accordingly, I would grant the rehearing and affirm the trial court’s judgment.

      . Louisiana Revised Statutes 38:2227(A) was enacted in 2010, and it initially required each bidder to submit a criminal record conviction attestation; however, the statute was amended by Acts 2012, No. 598, § 1, effective August 1, 2012, which was a few weeks before the Parish began advertising for the Project. . The amended version of La. R.S. 2227(A) provides:
      Each public entity advertising and letting for bid a public works contract shall require the lowest bidder, in addition to the provisions of R.S. 38:2212(A)(3)(c)(ii), after the opening of bids, if a sole proprietor, to attest that he has not been convicted of, or has not entered a plea of guilty or nolo contendere to any of the crimes or equivalent federal crimes listed in Subsection B of this Section. The lowest bidding entity shall submit an attestation that no individual partner, incorporator, director, manager, officer, organizer, or member, who has a minimum of a ten percent ownership in the bidding entity, has been convicted of, or has entered a plea of guilty or nolo conten-dere to any of the crimes or equivalent federal crimes listed in Subsection B of this Section. (Emphasis added.)
      Louisiana Revised Statutes 38:2212(A)(3)(c)(ii) provides, in pertinent part: "Other documentation required shall be furnished by the low bidder within ten days after the bid opening.” (Emphasis added.) Louisiana Revised Statutes 38:2212(A)( 1 )(b)(ii)(bb), amended by Acts 2012, No. 823, § 1, effective August 15, 2012, provides, in pertinent part: "Other documentation and information required including but not limited to the low bidder’s attestation pursuant to R.S. 38:[2227] shall be furnished by the low bidder within ten days after the bid opening. The ten-day period shall not be altered or waived by any public entity ...” (Emphasis added.)

      .The only bid form requirement that is pertinent to this appeal involves the mandatory criminal record Attestation Clause, obliging each bidder to submit the attestation within ten days of the bid opening. Thus, we preter-mit consideration of any other irregularity in the bids.

      . The record does not contain a copy of Talbot's petition for intervention, but it does contain Talbot’s memorandum in support of its intervention.

      . The record reflects that Phylway filed its criminal record Attestation Clause on September 28, 2012, within ten days of the bid opening on September 20, 2012.

      . See Uniform Rules — Courts of Appeal, Rule 1-3 (courts of appeal review only issues that are submitted to the trial court and are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise). See also Police Jury of Ascension Parish v. Shaffett, 461 So.2d 1072, 1072-73 (La.App. 1st Cir. 1984).


source: Caselaw Access Project

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

license: Public Domain

text:
    SUCCESSION OF Edward J. LeBOUEF.
    No. 2013 CA 0209.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 9, 2014.

      Bradley A. Doyle, Houma, Louisiana, Counsel for Plaintiffs-Appellees Willard J. LeBouef, Sr., Mary Lou Lambas, Brenda Lee Rodrigue, Wiley LeBouef, Gillis Le-Bouef, Jimmie LeBouef and Betty Marie Mills.
    Paul A. Lapeyrouse, Chauvin, Louisiana, Counsel for Defendants-Appellants Linda Ann L. Naquin, Mary Ann L. Billiot and Jerry J. LeBouef.
    Before PARRO, KUHN, GUIDRY, PETTIGREW, MCDONALD, McClendon, welch, HIGGINBOTHAM, CRAIN, THERIOT, and DRAKE, JJ.

      . Whipple, C.J., recused herself from consideration of this matter.

   KUHN, J.

|2The defendants-appellants, Linda Ann L. Naquin, Mary Ann L. Billiot and Jerry J. LeBouef (the defendants), appeal a judgment removing them as co-administrators of their father’s succession and holding them in contempt of court. For the following reasons, we affirm the defendants’ removal as co-administrators, reverse the portion of the judgment holding them in contempt, and remand this matter.

FACTS AND PROCEDURAL BACKGROUND

The parties are several of the sixteen surviving, major children of decedent, Edward J. LeBouef, who died on July 15, 2011. In accordance with a petition filed by the defendants, the district court signed an order on August 19, 2011, appointing them co-administrators of their father’s succession for the purpose “of maintaining decedents’ [sic] house ... and gathering a list of decedent’s assets and liabilities.” Each defendant signed an oath to discharge faithfully the duties of a co-administrator.

In November 2011, seven of the defendants’ siblings, Willard J. LeBouef, Sr., Gillis LeBouef, Mary Lou L. Lambas, Jimmie J. LeBouef, Brenda Lee L. Rodrigue, Betty Marie L. Mills, and Wiley LeBouef (the plaintiffs), filed a motion to remove the defendants as co-administrators and to appoint Willard LeBouef, Sr., as succession administrator. The plaintiffs alleged that the defendants mismanaged the succession, failed to file an accounting or list of assets and liabilities, withheld information regarding the decedent’s last will and testament, exceeded the authority granted to them in the August 2011 order appointing them co-administrators, and acted without necessary court approval on multiple occasions. The plaintiffs requested that the defendants be held in contempt of court for failing to comply with the August 2011 order and for violating their oaths of office.

At the motion hearing, the defendants admitted to performing various acts beyond the scope of maintaining the decedent’s house and gathering a list of his assets and liabilities. They also failed to file a written list of succession assets and liabilities. | ^Additionally, although several of the defendants’ actions were of the type requiring court approval, they failed to obtain such approval. These acts included the sale of succession assets, distribution of succession assets, and the payment of compensation to themselves as co-administrators.

In explanation of their conduct, the defendants testified that they consulted with their attorney, Paul Lapeyrouse, and relied upon his advice in their actions as co-administrators. They denied having knowledge that court approval was required for any of their actions. Jerry LeBouef testified that the reason they hired an attorney was so that he could “let us know the legal process.” Regarding the plaintiffs’ allegation that the defendants withheld information concerning the decedent’s last will and testament, Mary Ann Billiot testified that she delivered the will to their attorney, who then decided what to do with it.

The district court took the matter under advisement, and on February 9, 2012, signed judgment in favor of the plaintiffs ordering the defendants’ removal as co-administrators and the appointment of Willard LeBouef, Sr., as administrator of the decedent’s succession. The defendants’ attorney was also removed as the succession’s attorney of record. Additionally, the district court held the defendants in contempt of court “for their wilful disobedience to the judgment of August 19th, 2011 and for their failure to follow their oath of office.... ” The defendants were each sentenced to thirty days in parish jail, suspended on condition that they meet several requirements, including the return of all succession assets taken or dispersed by them without court approval and the payment of $3,000.00 for Willard LeBouef, Sr.’s attorney fees. The defendants took a suspensive appeal, contending that the district court erred in removing them as co-administrators, in holding them in contempt, and in imposing Lcriminal penalties for their alleged civil contempt. The plaintiffs filed a motion in this Court for summary disposition of the appeal.

MOTION FOR SUMMARY DISPOSITION OF APPEAL

Before considering the issues raised by the defendants on appeal, we must first consider the plaintiffs’ motion for summary disposition, since the motion raises an issue as to our appellate jurisdiction. See State in Interest of J.C., 13-0776 (La.App. 1st Cir.9/13/13), 134 So.3d 611, 614. In their motion, the plaintiffs contend that this Court’s prior decision in In re Succession of Graves, 07-2180 (La.App. 1st Cir.3/12/08), 985 So.2d 140, 141 (per curiam), writ denied, 08-0799 (La.6/6/08), 983 So.2d 919, establishes that the defendants’ appeal must be dismissed on the grounds that a judgment removing a succession administrator is a nonappealable interlocutory judgment.

Conflicting pronouncements by this Court have created uncertainty concerning whether a judgment appointing or removing a succession administrator is appeal-able or is reviewable by supervisory writ. For this reason, although this matter originally was heard before a three-judge panel, this Court subsequently elected to hear it en | fbanc in order to resolve the conflict and clarify the law of this circuit.

In Succession of Schneider v. Schneider, 371 So .2d 1380, 1382 (La.App. 1st Cir. 1979), this Court held it was apparent that La. C.C.P. arts. 2122 and 2974 contemplated that review of judgments appointing or removing succession representatives would be by appeal. This holding was based on the express language of Articles 2122 and 2974, which this Court concluded authorized such appeals, and not on the fact that La. C.C.P. art. 2083 at that time allowed the appeal of an interlocutory judgment that “may cause irreparable injury [.]”

Louisiana Code of Civil Procedure article 2122 provides:

A judgment or order of a trial court appointing or removing a legal representative shall be executed provisionally notwithstanding an appeal therefrom.
A judgment rendered on appeal vacating a judgment or order of the trial court appointing a legal representative does not invalidate any of his official acts performed prior to the rendition of the judgment of the appellate court.

[Emphasis added.]

Louisiana Code of Civil Procedure article 2974 provides:

Appeals from orders or judgments rendered in succession proceedings shall be governed by the rules applicable to appeals in ordinary proceedings, except that an order or judgment confirming, appointing, or removing a succession representative, or granting an interim allowance under Article 3321 shall be executed provisionally, notwithstanding appeal.
The acts of a succession representative shall not be invalidated by the annulment of his appointment on appeal.

[Emphasis added.]

| ^Subsequent to the decision in Schneider, a different panel of this Court reached a contrary result in Graves, 985 So.2d at 141, stating in a published per curiam action denying a supervisory writ that “no appeal lies from a judgment appointing or removing a succession administrator^]” In reaching this result, the Graves court specifically rejected the argument that La. C.C.P. arts. 2122 and 2974 authorized an appeal of a judgment appointing or removing a succession representative, reasoning that the current version of La. C.C.P. art. 2083 (as amended by 2005 La. Acts, No. 205, § 1) now allows appeals of interlocutory judgments “only when expressly provided by law.” Graves, 985 So.2d at 141. The Graves court opined that, while Articles 2122 and 2974 addressed matters pertinent to the review of judgments appointing or removing a succession representative, they did not expressly provide for the review to be by appeal. Graves, 985 So.2d at 141. On that basis, the Graves court declared that no appeal lies from such judgments, which were reviewable only under this Court’s supervisory jurisdiction. The Graves opinion was silent as to this Court’s prior holding in Schneider.

More recently, still another panel of this Court cited the Schneider decision with approval, reaffirming the holding of Schneider that a judgment appointing or removing a succession representative is an appealable judgment under La. C.C.P. art. 2974. See In re Succession of Sharp, 11-1984 (La.App. 1st Cir.5/14/12), 2012 WL 1744467 (unpublished). A conclusion that the language of Article 2974 satisfies the requirements of Article 2083(C) is implicit in the Sharp holding, since the Court expressly recognized that this Article provides that interlocutory judgments are ap-pealable only when “expressly provided by law.” Sharp, 11-1984 at p. 4, 2012 WL 1744467. The Sharp opinion makes no reference to the Graves case.

Thus, different panels of this Court have reached conflicting conclusions regarding the appealability of judgments appointing or removing succession representatives. After reviewing the law and the conflicting jurisprudence, we [7conclude the rationale adopted by this Court in Schneider and Sharp is well founded and, accordingly, we adhere to the holdings of those cases and overrule the per curiam decision rendered in Graves. The primary consideration leading to our conclusion is the express language of La. C.C.P. arts. 2122 and 2974.

The rules of statutory construction require that in examining codal articles, a court must read the language, words and phrases used in context and accord them their generally prevailing meaning. See La. C.C. art. 11; also see La. R.S. 1:3. Courts must presume that every word in a provision was intended to serve some useful purpose, that some effect is to be given to each such word, and that no unnecessary words were employed. Thus, courts are bound to give effect to all parts of a code article and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 05-2548 (La.10/1/07), 986 So.2d 1, 17; Moss v. State, 05-1968 (La.4/4/06), 925 So.2d 1185,1196.

Louisiana Code of Civil Procedure art. 2122 provides that a judgment appointing or removing a legal representative “shall be executed provisionally, notwithstanding an appeal therefrom.” (Emphasis added.) The article also addresses the legal consequences that follow when a trial court judgment appointing a legal representative is vacated “on appeal.” (Emphasis added.) Additionally, La. C.C.P. art. 2974 provides that “[ajppeals” from judgments rendered in succession proceedings are governed by the same rules applied to appeals in ordinary proceedings, “except that an order or judgment confirming, appointing, or removing a succession representative ... shall be executed provisionally, notwithstanding appeal.” (Emphasis added.) The article further provides that “[t]he acts of a succession representative shall not be invalidated by the annulment of his appointment on appeal.” (Emphasis added.)

|sThe only logical interpretation to be drawn from the use of the particular term “appeal” in these provisions is that Articles 2122 and 2974 contemplate that appeals are authorized from judgments appointing or removing succession representatives. Any other interpretation would render the repeated use of the word “appeal” in these articles meaningless.

In Graves, 985 So.2d at 140, a different panel of this Court concluded that while Articles 2122 and 2974 addressed matters pertinent to the review of judgments appointing or removing succession representatives, these articles did not expressly provide for the review to be by appeal. We find this conclusion flawed in that it ignores the express language of these provisions, as well as the placement of Article 2122. The location of Article 2122 in the section of the Louisiana Code of Civil Procedure that addresses procedures for appeals is a fact inescapably supporting a conclusion that the article contemplates appeals from judgments appointing or removing legal representatives (including succession representatives). Otherwise, the placement of Article 2122 in the section of the code specifically dealing with appeal procedures would be illogical. It is also noteworthy that the title of Article 2974 (which specifically refers to judgments appointing or removing succession representatives within its scope) is “Appeals.”

Our present reading of Articles 2122 and 2974 as expressly allowing appeals from judgments appointing or removing succession representatives not only is in conformity with the clear language and placement of those articles, it also comports more reasonably with the rules of logic than a conclusion to the contrary. In reaching this conclusion, we also are mindful of the well-settled principle that appeals are favored. An appeal should be maintained unless the grounds urged for dismissal are free from doubt. Castillo v. Russell 05-2110 (La.2/10/06), 920 So.2d 863.

| ¡Accordingly, we deny the plaintiffs’ motion for summary dismissal of the defendants’ appeal. However, since Articles 2122 and 2974 specifically provide that a judgment appointing or removing a succession representative shall be “executed provisionally notwithstanding an appeal,” appeals taken from such judgments are necessarily devolutive. See Succession of Heinig, 192 La. 388, 390, 188 So. • 39 (1939) (under Louisiana Code of Practice (1932) articles 580 and 1059 — the source provisions of Article 2122 and 2974-a suspensive appeal cannot be taken from, a judgment appointing a succession administrator); see also Miller v. Miller, 35,934 (La.App.2d Cir.5/8/02), 817 So.2d 1166,- 1173, writ denied, 02-1890 (La.10/25/02), 827 So.2d 1154 (since a judgment removing a trustee “shall be executed provisionally” under La. R.S. 9:1791, it is analogous to a judgment removing a succession representative, which is not subject to suspensive appeal). Accordingly, we convert the defendants’ appeal from a suspensive appeal to a devolu-tive appeal and maintain it as such.

REMOVAL OF CO-ADMINISTRATORS

The defendants contend that the district court erred in removing them as succession co-administrators because no ground for their removal was established. They maintain that the record contains no proof of mismanagement and that they have discharged their fiduciary duties faithfully and in concert.

A party seeking removal of a succession representative must either prove by convincing evidence that the representative breached his fiduciary duty to the 1 ^succession under La. C.C.P. art. 3191 or the existence of one of the grounds for removal enumerated in La. C.C.P. art. 3182. In re Succession of Cucchero, 02-0368 (La.App. 1st Cir.2/14/03), 845 So.2d 450, 452. The grounds for disqualification under La. C.C.P. art. 3182 include the representative’s failure to perform, any duty imposed by law or court order.

A district court is authorized to remove a representative, only after such a showing is made. Succession of Cucche-ro, 845 So.2d at 452. At that point, the district court is vested with discretion in determining whether removal of a succession representative is appropriate under the particular facts. Absent an abuse of discretion, the district court’s decision regarding removal of a succession representative will not be disturbed on appeal. Succession of Cucchero, 845 So.2d at 452-53.

In this case, the district court initially gave no reasons on the record for its decision to remove the defendants as co-administrators. In subsequently denying the defendants’ motion for new trial, however, the district court -explained its rationale as follows:

Article 3182 expressly authorizes the Court to remove any succession representative who fails to perform any duty imposed by law or by court order.... The court has previously found that [the defendants] have not complied with the general and specific duties required of a succession administrator or representative pursuant to the Louisiana Code of Civil [Procedure. They sold succession assets, distributed succession assets, paid themselves and entered into at least one contract which affected succession assets-all without court approval and over the objection of man[y] of the heirs. They may have acted in good faith, albeit unwisely and without full knowledge of their duties and powers. Nonetheless, their unauthorized acts are grounds for removal.

Based on our review, we agree with the district court' that grounds for removal existed. Further, we find no abuse of discretion in the district court’s decision to remove the defendants as co-administrators on those grounds. As the district court stated, La. C.C.P. art. 3182 authorizes the removal of a succession representative who “has failed to perform any duty imposed by law.” The record unequivocally establishes that the defendants on numerous occasions breached their statutory duty launder La. C.C.P. art. 3191 to “manag[e] the property of the succession in accordance with law.” Specifically, the defendants sold succession property without first obtaining court approval for the sale as La. C.C.P. arts. 3261 and 3281(A) required them to do and listed the decedent’s house for sale with a realtor without obtaining court approval, a violation of La. C.C.P. art. 3286. The defendants also violated La. C.C.P. art. 3351 by paying compensation to themselves without court approval prior to the homolo-gation of the final account.

Further, the defendants failed in the duty imposed upon them by La. C.C.P. art. 3222 to “deposit all moneys collected by [them] as soon as received, in a bank account in [their] official capacity ... and [to] not withdraw the deposits or any part thereof, except in accordance with law.” Linda Naquin was a named co-signor on one of the decedent’s bank accounts. Rather than depositing the funds from this bank account into the succession account, the defendants kept the decedent’s existing account open and used it to pay succession debts, all without court approval. The defendants also distributed substantial funds to both their siblings and themselves from the succession account without obtaining court approval. Finally, the defendants violated La. C.C.P. arts. 3301 and 3303(A) by paying succession debts without court approval.

Considering the defendants’ repeated failure to comply with their duty to manage the succession in accordance with the requirements of law, the judgment removing them as succession co-administrators was not an abuse of discretion.

CONTEMPT

The defendants also contend the district court abused its discretion in holding them in contempt of court because the record is devoid of evidence that they intentionally and knowingly disobeyed an order of the court or intended to obstruct justice, impair the dignity of the eourt, or impair respect for the court, without justification. The defendants emphasize that, in addition to being intentional, ah act or omission constituting contempt also must be committed • without justification. As | ^justification for their conduct in exceeding their authority and acting without the requisite court approval, the defendants claim that they acted in accordance with their attorney’s advice after discussing all succession matters with him before taking any action. They further assert that the contempt judgment is reversible because the district court failed to recite the facts constituting their acts of contempt as it was required to do by La. C.C.P. art. 225(B).

Under La. C.C.P. art 221, a contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. A direct contempt of court is one committed in the presence of the court or a contumacious failure to comply with a subpoena or summons. La. C.C.P. art. 222. Constructive contempt is any contempt other than a direct one. La. C.C.P. art. 224. The willful disobedience of any lawful judgment or order of the court constitutes a constructive contempt of court. La. C.C.P. art. 224(2).

In order to find a person guilty of constructive contempt, it is necessary that the violation be intentional, knowing, purposeful, and without justifiable excuse. Boudreaux v. Vankerkhove, 07-2555 (La.App. 1st Cir.8/11/08), 993 So.2d 725, 733; Barry v. McDaniel, 05-2455 (La.App. 1st Cir.3/24/06), 934 So.2d 69, 73. Moreover, contempt proceedings must be strictly construed, and our law does not favor extending their scope. “Unless a litigant willfully disobeys a direct order of the court issued prior to the contempt rule, he should not be held in eontempt[.]” Albritton v. Fidelity National Bank Trust for Albritton Through Hibernia National Bank, 619 So.2d 1170, 1173 (La.App. 1st Cir.1993), citing Kent v. Stewart, 413 So.2d 583, 584 (La.App. 1st Cir.1982). A district court has great discretion in deciding whether to hold a party in contempt of court for disobeying a court order, and its decision should be | iareversed only when an appellate court discerns an abuse of that discretion. Boudreaux, 993 So.2d at 733.

When a district court finds a person guilty of contempt, La. C.C.P. art. 225(B) requires the court to render an order reciting the facts constituting the contempt. Even when the district court fails to recite the facts constituting contempt in a written order, however, the jurisprudence has recognized that this requirement is satisfied if such facts are recited by the district court in open court. Barry, 934 So.2d at 73; Garrett v. Andrews, 99-1929 (La.App. 1st Cir.9/22/00), 767 So.2d 941, 942.

In the instant case, the record establishes that the defendants unquestionably exceeded the authority granted to them in the August 2011 order appointing them as co-administrators, which was to maintain the decedent’s house and to gather a list of decedent’s assets and liabilities. As previously discussed, the defendants also performed numerous intentional acts that required court approval without first obtaining such approval. Nevertheless, the defendants testified that they performed these acts upon the advice of their attorney and that they were ignorant of the requirements for court approval.

In finding the defendants guilty of contempt, the district court failed to recite specific facts constituting their acts of contempt, as it was required to do by Article 225(B). The district court merely stated its conclusion that the defendants were guilty of “wilful disobedience of the judgment of August 19th, 2011, and for their failure to follow their oaths of offiee[.]” However, in thereafter denying the defendants’ motion for new trial, the district court stated with regard to the actions taken by the defendants in excess of their authority and without requisite court approval that “[t]hey may have acted in good faith, albeit unwisely and without full knowledge of their duties and powers.” (Emphasis added.)

This factual determination that the defendants may have acted in good faith and out of ignorance is inconsistent with the court’s conclusory statement in the contempt | ^judgment that the defendants were guilty of “wilful disobedience of the judgment of August 19th, 2011[.]” A person cannot be held guilty of constructive contempt for violating a court order absent a finding that he committed the violation intentionally, knowingly, and purposely. Boudreaux, 993 So.2d at 733; Barry, 934 So.2d at 73. In this case, no evidence was presented that the defendants committed the unauthorized acts with the intent either to disrespect the district court’s dignity and authority or knowingly and purposely to violate the court’s August 2011 order. Considering the district court’s conclusion that the defendants may have acted in good faith and out of ignorance, the record does not support the contempt judgment, particularly in light of the fact that contempt proceedings must be strictly construed. See La. C.C.P. art. 224(2) & (10); Albritton, 619 So.2d at 1173.

CONCLUSION

For- the reasons assigned, we overrule the per curiam decision in In Re Succession of Graves, 07-2180 (La.App. 1st Cir.3/12/08), 985 So.2d 140, 141 (per curiam), writ denied, 08-0799 (La.6/6/08), 983 So.2d 919, and hereby deny the plaintiffs’ Motion for Summary Disposition of Appeal. We further order that the instant appeal be converted from a suspensive appeal to a devolutive appeal and maintained as such. Additionally, we reverse the portion of the district court judgment holding the defendants, Linda Ann L. Naquin, Mary Ann L. Billiot and Jerry J. LeBouef, in contempt of court, as well as the sentences and conditions imposed upon them. The judgment of the district court is affirmed in all other respects, and this case is remanded for further proceedings consistent with this opinion. The costs of this appeal are assessed one-half to the defendants-appellants and one-half to the plaintiffs-appellees.

MOTION FOR SUMMARY DISPOSITION OF APPEAL DENIED AND APPEAL MAINTAINED AS DEVOLU-TIVE APPEAL; JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

CRAIN, J. concurs & assigns reasons by Judge KUHN.

THERIOT, J. concurs in part and dissents in part with reasons.

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

HIGGINBOTHAM, J. concurs in the result and assigns additional reasons.

McCLENDON, J., agrees and assigns additional reasons.

GUIDRY, J. concurs in the result.

McCLENDON, J.,

agrees and assigns additional reasons.

hi agree with the majority opinion, including the reversal of that portion of the district court judgment which held the defendants in contempt of court and imposed sentences and conditions. I assign additional reasons to note that some of the conditions imposed, such as an order for accounting, may nevertheless be appropriate outside of the court’s finding of contempt. However, those issues can be addressed on remand, if necessary.

HIGGINBOTHAM, J.,

concurs in the result and assigns additional reasons.

hi respectfully concur in the result reached by the majority and assign additional reasons to point out that the judgment at issue is immediately appealable because it imposed sanctions for contempt. See La.Code Civ. P. art. 1915(A)(6); Capital City Press, LLC v. Louisiana State University System Bd. of Sup’rs, 2013-1994 (La.8/28/13), 120 So.3d 250; Robinson v. Harlan, 2012-0363 (La.4/9/12), 85 So.3d 131; In re Jones, 2010-0066 (La.App. 5th Cir.11/9/10), 54 So.3d 54, 58, writ not considered, 2010-2738 (La.2/4/11), 56 So.3d 979; Hodges v. Hodges, 2002-0489 (La.App. 3d Cir.10/2/02), 827 So.2d 1271, 1276, writ denied, 2002-2485 (La.11/8/02), 828 So.2d 1122; and Stiltner v. Stiltner, 2000-2079 (La.App. 4th Cir.11/8/00), 772 So.2d 909, 910. Therefore, in the interests of judicial economy and justice, review of the entire judgment including the removal of the succession representatives is properly before this court on appeal. See Carrollton Presbyterian Church v. Presbytery of South Louisiana of Presbyterian Church (USA), 2011-0205 (La.App. 1st Cir.9/14/11), 77 So.3d 975, 978-79„writ denied, 2011-2590 (La.2/17/12), 82 So.3d 285, cert. denied, — U.S.-, 133 S.Ct. 150, 184 L.Ed.2d 32 (2012) (an appellant may appeal an interlocutory judgment involving the same or related issues in the case of a restricted appeal). The sanctions imposed for contempt in this case are related to the reasons for the removal of the succession co-administrators for breach of their fiduciary duties.

For these additional reasons, the plaintiffs’ motion to summarily dismiss the defendants’ appeal should be denied and the appeal maintained.

CRAIN, J.,

concurring.

|J disagree that the order removing the succession representative is an interlocutory judgment for which an appeal is expressly provided by law. The role of the succession representative, and his personal interest in the succession, is significant. He-is a fiduciary, is provided compensation for his services, is charged with acting as a prudent administrator at all times, and is personally responsible for his failure to do so. La.Code Civ. Pro. arts. 3191, 3351. If removed, the succession representative’s authority to act relative to the succession is terminated. Thus, I believe that the order removing the succession representative is a partial final judgment that may be appealed when appropriately designated pursuant to Louisiana Code of Civil Procedure article 1915B. The judgment before us has not been so designated, therefore I would issue a rule to show cause why this appeal should not be dismissed, affording the parties the opportunity to supplement the appellate record with an appropriately designated judgment. Absent such, I would consider the order pursuant to this court’s supervisory jurisdiction. See Editor’s Note to La.Code Civ. Pro. art. 1915.

With the exception of the discussion regarding jurisdiction, I agree with the majority and therefore concur.

THERIOT, J.,

concurring in part and dissenting in part with reasons.

IU concur with the analysis of the majority in every respect except the reversal of the portion of the district court judgment holding the defendants in contempt of court.

I would affirm the district court’s finding that the defendants were guilty of contempt. As mentioned by the majority, the defendants unquestionably exceeded the authority granted to them in the August 2011 order appointing them as co-administrators. Furthermore, it is clear from the record that defendants performed numerous intentional acts that required court approval without first obtaining such approval. I find La. C.C.P. art. 225(B) .was satisfied by the district court reciting the defendants were guilty of “willful disobedience of the judgment of August 19, 2011, and for their failure to follow their oaths of office.”

The district court did state at the hearing on the defendant’s motion for new trial that “[defendants] may have acted in good • faith, albeit unwisely and without full knowledge of their duties and powers.” I disagree with the majority’s ^conclusion that such a statement is a factual determination and is inconsistent with the district courts findings enumerated during the contempt hearing. The district court was merely making an observation that defendants “may” have acted in good faith. Such a statement is not a finding of fact. Furthermore, this observation was made during the motion for new trial. It was not made at the contempt hearing. Therefore, I respectfully disagree with the majority opinion as it pertains to the contempt ruling.

      . The defendants refer in brief to several pleadings filed and rulings made by the district court after the judgment on appeal was rendered. Because events occurring after rendition of the appealed judgment are not before this Court in the instant matter, these pleadings and references are not relevant to the issues raised herein. We hereby deny the defendants' motion to supplement the appellate record with pleadings filed after the instant appeal was taken, since those pleadings were not before the district court at the time of judgment and, therefore, cannot be considered on appeal. See Martin v. Joan Malbrough & Associates, 13-0864 (La.App. 1st Cir.2/18/14), 2014 WL 651535 (unpublished); Pelican Homestead and Savings Association v. Royal Scott Apartments Partnership, 541 So.2d 943, 947 (La.App. 5th Cir.), writ denied. 543 So.2d 9 (La.1989).

      .We recognize that a three-judge panel of this Court, with one dissent, previously denied a writ application filed by the defendants seeking review of a judgment rendered in the succession proceedings after the instant appeal was taken, with the following language: "WRIT DENIED. See In re Succession of Graves, 07-2180 (La.App. 1 Cir. 3/12/08), 985 So.2d 140, writ denied. 08-0799 (La.6/6/08), 983 So.2d 919.” See In re: Succession of Edward J. LeBouef, 12-1863 (La.App. 1st Cir. 11/15/12) (unpublished). Nevertheless, the denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction and does not bar this Court from subsequently reconsidering, or even reaching a different conclusion on, the same question. Robinson v. Harlan, 11-0703 (La.App. 1st Cir. 11/9/11), 79 So.3d 1034, 1036, writ granted and appeal reinstated on other grounds, 12-0363 (La.4/9/12), 85 So.3d 131; Dupre v. Maynard, 96-1183 (La.App. 1st Cir.3/27/97), 692 So.2d 36, 38, writ denied, 97-1508 (La.9/26/97), 701 So.2d 986.

      . Internal Rules of Court, First Circuit Court of Appeal, Rule 2.1(d)(4) provides for an en banc sitting when a proposed opinion "must resolve a conflict between two or more prior decisions of this Court and it is the opinion of the conference that an en banc sitting is warranted.”

      . Under La. C.C.P. art. 5251(10), the term "legal representative” includes a succession administrator and any officer appointed by a court to administer an estate. For purposes of this opinion, the terms legal representative, succession representative, and succession administrator are interchangeable.

      . This provision is located in Book III ("Proceedings in Appellate Courts”), Title I ("Appellate Procedure”), Chapter 2 ("Procedure for Appealing”) of the Louisiana Code of Civil Procedure.

      . Louisiana Code of Practice art. 580 provided, in pertinent part, that:
      Some judgments, however, are executed provisionally, although an appeal has been taken from the same within the delay prescribed, and the necessary surety given.

      . Louisiana Code of Practice art. 1059 provided, in pertinent part, that:
      When an appeal is made from a judgment appointing or removing ... administrators of successions, such appeal shall not suspend the execution of the judgment, but it shall have effect provisionally, until the appeal be decided.

      . Mr. Lapeyrouse, the attorney the defendants hired to advise them and to act as counsel for the succession, represented them throughout the instant proceedings, both in the district court and this Court. At no point did he
      dispute the defendants' testimony that they consulted with him and followed his advice in the actions they took in their capacities as co-administrators.


author: PER CURIAM.

text:
    Lacey L. NORMAND v. Stephen E. GRAYSON, Cheri Grayson, U.S. Agencies Insurance Company and State of Louisiana Through the Department of Transportation and Development.
    No. 2014 CW 0571.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2014.
    Rehearing Denied Dec. 8, 2014.

      William H. Mustian, III, Metairie, Louisiana, for Plaintiff-Respondent, Lacey L. Normand.
    Michael J. Gautier, Jr., William H. Justice, Baton Rouge, Louisiana, for Defendant-Relator, USAgencies Casualty Insurance Company, Inc.
    John H. Ayres, III, Baton Rouge, Louisiana, for Defendant, State of Louisiana through the Department of Transportation and Development.
    Mary Lord, Mandeville, Louisiana, for Unknown Defendant.
    Before KUHN, PETTIGREW, and DRAKE.
   PER CURIAM.

12Plaintiff, Lacey L. Normand, filed a petition for damages for the injuries she avers she sustained in an automobile accident that occurred on October 16, 2004, with a vehicle owned by defendant, Cheri Grayson, and driven by her husband, Stephen. The Grayson vehicle was insured by a vehicle insurance policy issued to Cheri by USAgencies Casualty Insurance Company, Inc., (USAgencies) but Stephen was an expressly excluded driver. The trial court denied a motion for summary judgment filed by USAgencies, reasoning that Cheri was potentially liable to Normand for her negligent entrustment of her vehicle to Stephen. USAgencies seeks supervisory review.

In 2006, based on the driver exclusion, USAgencies filed a motion for summary judgment, urging entitlement to dismissal from the lawsuit since Stephen, a specifically excluded driver under the policy it issued to Cheri, was operating the vehicle at the time of the accident. The trial court granted summary judgment on this basis but also concluded that Normand could pursue her claims against USAgencies as a result of Cheri having negligently entrusted her vehicle to Stephen. USAgencies then filed this second motion for summary judgment, asserting that the policy issued to Cheri did not provide coverage for a negligent entrustment claim. After a hearing, on November 19, 2013, the trial court denied USAgencies’ second motion for summary judgment noting its earlier denial of summary judgment on this basis.

In this review, USAgencies contends the named-driver exclusion precludes coverage to the named insured for negligently entrusting a covered vehicle to an explicitly excluded driver. Normand asserts that as a separate independent tort arising out of ownership of a vehicle, USA-gencies cannot exclude negligent entrustment claims from coverage under La. R.S. 32:900.

|sThe statutory scheme provided by the Louisiana Motor Vehicle Safety Responsibility Law, see La. R.S. 32:851 et seq. is intended to attach financial protection to the vehicle rather than the operator. Accordingly, Louisiana’s automobile insurance law requires omnibus coverage in favor of any person using an insured vehicle with the permission or consent of the name insured. La. R.S. 32:900(B)(2); Bryant v. United Services Automobile Association, 2003-3491 (La.9/9/04), 881 So.2d 1214, 1218.

But in 1992, the legislature created an exception to the general rule of omnibus coverage, enacting section (L) of La. R.S. 82:900, which permits a named insured to exclude from coverage a resident of his household. See 1992 La. Acts, No. 979, § 1.

At all times relevant to the instant matter, La. R.S. 32:900(L)(1) provides, in pertinent part:

[A]n insurer and an insured may by written agreement exclude form coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the •written agreement. It shall not be necessary for the person being excluded from coverage to execute or be a party to the written agreement. For the purposes of this Subsection, the term “named insured” means the applicant for the policy of insurance issued by the insurer.

In sum, Section 900(L)(1) grants the automobile insurer and the insured the statutory authority to contractually exclude a resident of the insured’s household from coverage under the automobile policy. The purpose of Section 900(L) is to allow the named insured the option of paying a reduced premium in exchange for obtaining an insurance policy that affords no coverage for an accident while a covered vehicle is being operated by an excluded driver. Bryant 881 So.2d at |41219; Joseph v. Dickerson, 99-1046 (La.1/19/00), 754 So.2d 912, 917; Bimah v. Meza, 2012-0124 (La.App. 1 Cir. 11/2/12), 2012 WL 5383168.

In this case, the insurance policy provided coverage to Cheri from May 1, 2004 to October 31, 2004. It is undisputed that her husband Stephen was a resident of Cheri’s household and was an excluded operator under the policy. Additionally, the policy provides that “Excluded Persons” are classified as “persons that live in my household and I request in writing to exclude these persons from any benefit of this policy, (i.e. repair of listed vehicle, any investigation of an accident, or any lawsuit brought against me or the excluded person) USAgencies Casualty Insurance Company will not be responsible for any damage caused by an excluded person or non-listed household resident not found on this application.” (Emphasis added).

Both this court and the Louisiana Supreme Court have upheld named driver exclusions that excluded coverage for accidents involving minor drivers. See Williams v. Watson, 2001-0495 (La.10/16/01), 798 So.2d 55, and Bimah supra. While the precise issue presented in Williams (i.e., whether the named driver exclusion remains valid when the excluded driver is no longer a resident of the insured’s household) is not present in this ease, the Supreme Court’s analysis is helpful in addressing the arguments raised in this writ.

Looking first at the statutory language itself, the Williams court noted that La. R.S. 32:900(L)(1) allows the insurer and the insured to “exclude from coverage any other named person who is a resident of the same household as the named | ¡¡insured at the time that the written agreement is entered into.” Thus, the statutory language at issue clearly allows the insured and insurer to exclude from coverage any person the parties specifically name in the exclusion and does not limit or restrict the ability of the parties to the contract to exclude coverage for a named person based on the age of the driver. Moreover, the Williams court noted that the sole purpose of this type of exclusion is premium reduction. Williams, 798 So.2d at 59. Thus, an excluded driver endorsement can enable an insured, who would otherwise have difficulty obtaining insurance coverage for a vehicle, to obtain insurance at a reasonable rate.

As such, where an excluded driver endorsement has been validly executed, refusing to recognize the validity of the exclusion results in the imposition on the insurer of a coverage obligation not commensurate with the premium paid and, thus, defeats the purpose of the omnibus coverage exception provided for in La. R.S. 32:900(L). See Williams, 798 So.2d at 59. Moreover, allowing coverage under the theory of negligent entrustment would unjustly deprive the insurer of the benefit of its bargain by allowing an insured to purchase a vehicle liability policy with an excluded driver endorsement, permit the excluded driver to drive the insured vehicle, and reap the benefits of the policy. By enacting La. R.S. 32:900(L), the legislature permitted the exclusion of high-risk drivers from coverage in exchange for a reduced premium. Accordingly, we conclude that the USAgencies’ policy issued to Cheri Grayson does not afford coverage for negligent entrustment of her insured vehicle .to her husband Stephen, an explicitly excluded driver.

DECREE

For these reasons, the writ is granted. The trial court’s denial of USAgeneies’s motion for summary judgment on the issue of Cheri Grayson’s alleged negligent en-trustment of her vehicle to her husband, Stephen, is reversed. | ¡¡Judgment is rendered in favor of USAgencies Casualty Insurance Company, Inc., granting summary judgment based on a finding that the named-driver exclusion in a vehicle liability insurance policy has the effect of also precluding coverage to the named insured for any claims of negligent entrustment of the covered vehicle to an explicitly excluded driver.

WRIT GRANTED; JUDGMENT DENYING SUMMARY JUDGMENT REVERSED; JUDGMENT GRANTING SUMMARY JUDGMENT RENDERED.

      . Although not effective at the time this matter occurred, we note that the Louisiana legislature recently enacted La. R.S. 22:1295.1(C), (2014 La. Acts, No. 21, § 1), which addresses this issue and provides in pertinent part:
      If the operator has been excluded pursuant to R.S. 32:900(L), the insurer shall not be liable, and no liability or obligation of any kind shall result to the insurer for bodily injury, loss, or damage under any coverage of the policy, nor shall the insurer be obligated to provide a defense or pay any costs of defense.


author: GUIDRY, J.

text:
    Johnathan Carnell WILLIAMS, Sr., Mona Monique Johnson, Individually and Obo Minor Children, Regan Johnson; Kennedy Williams; Johnathan Williams, Jr.; Madison Williams v. City Police Officers Jason DOHM; Michael Thompson; Charles Blacknell, Ricky Arnette,; Chuck Karras; Danny Williamson; and Judd Wiedemann.
    No. 2014 CA 0102.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 14, 2014.

      Donna U. Grodner, Blake S. Leger, Joel G. Porter, Baton Rouge, LA, for Plaintiffs/Appellants Johnathan Williams, Sr., Mona Williams, individually and on behalf of the minor children, Regan Johnson, Kennedy Williams, Johnathan Williams, Jr., and Madison Williams.
    Mary Roper, Parish Attorney, Gwendolyn K. Brown, Tedrick K. Knightshead, Special Assistant Parish Attorneys, Baton Rouge, LA, for Defendants/Appellees City of Baton Rouge, Jason Dohm, Charles Blacknell, Danny Williamson, Charles Kar-ras, Randall Wiedemann, and Richard Ar-nett.
    Before GUIDRY, THERIOT, and DRAKE, JJ.
   GUIDRY, J.

| gPlaintiffs appeal the dismissal of their personal injury suit, alleging that excessive force was used in the execution of a search warrant by officers with the Baton Rouge Police Department (BRPD). Finding the evidence in the record before us supports the judgment of the trial court, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 28, 2010, officers Jason Dohm, Michael Thompson, Charles Blacknell, Richard Arnett, Charles Karras, Danny Williamson and Randall Judd Wiedemann with the BRPD executed a search warrant for crack cocaine at 12429 Robbie Street in Baton Rouge. On arriving at the residence, police officers encountered Johnathan Carnell Williams, Sr. and Mona Monique Johnson outside the residence in the front yard. On observing the arrival of the police, Mr. Williams attempted to give a gun that he had been carrying to Ms. Johnson, who was standing next to him holding the couple’s infant daughter. On seeing Mr. Williams with the gun, however, Officer Blacknell yelled “gun” and immediately accosted Mr. Williams and handcuffed him. Thereafter, officers went to the door of the residence and used a battering ram to enter.

On entering the residence, the officers found the couple’s three other minor children inside. The children were escorted outside, and Mr. Williams and Ms. Johnson, who was also placed in handcuffs, were brought inside the home and questioned while a search was made of the residence. As a result of the search, the police recovered a clear plastic bag containing one gram of marijuana and $655 from a dresser in the couple’s bedroom. Mr. Williams was then placed under arrest and taken to the police station. Ms. Johnson was released from her handcuffs and detainment.

Mr. Williams and Ms. Johnson allege that they were beaten by police officers during the execution of the search warrant at their home on July 28, 2010. | .^Consequently, on March 18, 2011, Mr. Williams and Ms. Johnson (collectively “plaintiffs”) filed a petition for damages against all the aforementioned police officers raising claims of excessive force pursuant to 42 U.S.C. § 1988, violation of due process under the Fifth and Fourteenth Amendments of U.S. Constitution, and infliction of cruel and unusual punishment in violation of the Eighth Amendment. Plaintiffs further asserted claims of general negligence under state law and requested recovery of costs and attorney fees pursuant 42 U.S.C. § 1988 and punitive damages pursuant to federal law.

Following a two-day bench trial, the trial court allowed the parties to submit post-trial briefs and took the .matter under advisement. The trial court ultimately determined that the defendant police officers had conducted a search of the plaintiffs’ home pursuant to a lawful search warrant obtained after narcotics detectives used a confidential informant to conduct a controlled buy of crack cocaine from Mr. Williams at the plaintiffs’ home. The trial court found that a “straight-arm bar take down” was performed on Mr. Williams to place him on the ground when Officer Blacknell saw him with a gun and that this maneuver, “more probable than not,” caused the laceration to Mr. Williams’ forehead. Additionally, the trial court found that medical evidence submitted by the plaintiffs did not corroborate the plaintiffs’ allegations that they were hit multiple times, primarily in the face, by police. Thus, reviewing the totality of the evidence, the trial court held that the plaintiffs failed to prove by a preponderance of the evidence that unreasonable force was used against them in the execution of the search warrant. Accordingly, the trial court signed a judgment on December 16, 2013, dismissing the plaintiffs’ claims against the defendants with prejudice.

^DISCUSSION

The elements of a claim under 42 U.S.C. § 1988 are: (1) that the conduct in question deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States; and (2) that the conduct complained of was committed by a person acting under color of state law. The plaintiff has the burden of proving a civil rights violation under § 1983 by a preponderance of the evidence. Richard v. City of Harahan, 6 F.Supp.2d 565, 570 (E.D.La.1998). Acts of police officers who undertake to perform their official duties are included within the meaning of 42 U.S.C. § 1983, whether they hew to the line of their authority or overstep it. It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law. Whitney v. Mallet, 442 So.2d 1361, 1364 (La.App. 3d Cir.1983), writ denied, 445 So.2d 437 (La.1984).

In this case, the plaintiffs allege that the named officers with the BRPD violated their Fourth Amendment right to be free from unreasonable searches and seizures by the excessive force allegedly used by some of the officers in executing a search warrant of their residence. In their first two assignments of error, they assert that the trial court erred in not finding that the force used by police in conducting the search was both unnecessary and excessive.

A claim of excessive force based on 42 U.S.C. § 1983 is a federal constitutional claim that is analyzed via Fourth Amendment constitutional standards. Penn v. St. Tammany Parish Sheriff’s Office, 02-0893, p. 4 (La.App. 1st Cir.4/2/03), 843 So.2d 1157,1159. In order to state a claim for excessive force in violation of the Constitution, a plaintiff must allege (1) an injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable. Richard, 6 F.Supp.2d at 573. The plaintiff is required to-show a significant injury that |firesulted from the use of objectively unreasonable force that was clearly excessive of the need. If an officer’s actions were grossly disproportionate to the need for action under the circumstances, rather than merely careless or unwise excess of zeal, so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under section 1983. Penn, 02-0893 at p. 4, 843 So.2d at 1160.

The test of reasonableness under the Fourth Amendment requires careful attention to the facts and circumstances of each particular case. Graham v. Con-nor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). Thus, a determination of whether the force used under the circumstances was unreasonable is subject to the manifest error standard of review; that is, to determine whether the trial court’s conclusions were clearly wrong based on the evidence or clearly without evidentiary support. When two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. See Sims v. Ward, 05-0278, pp. 3-5 (La.App. 1st Cir.6/9/06), 938 So.2d 702, 704-05, writ denied, 06-2104 (La.11/17/06), 942 So.2d 535.

The plaintiffs and fourteen-year-old Huron Anderson, who was eleven years old at the time of the incident, testified that Officer Blacknell injured Mr. Williams by repeatedly punching him in the face and striking him on the forehead with the butt end of an assault rifle. They further testified that Corporal Dohm repeatedly slapped Ms. Johnson in the face with an open-handed fist. The plaintiffs also testified that one of Ms. Johnson’s legs was injured when she attempted to shield Mr. Williams with her legs while he was being punched by Officer Blacknell. According to the plaintiffs, they were seated on a couch with their hands | ^handcuffed behind their backs at the time they were allegedly being physically assaulted by Officer Blacknell and Corporal Dohm.

Officers Thompson, Blacknell, Dohm, and Wiedemann testified at trial, and Lieutenant Arnett’s deposition testimony was offered in lieu of his live testimony. All of the officers denied seeing either Officer Blacknell or Corporal Dohm strike or punch Mr. Williams or Ms. Johnson. Likewise, Officer Blacknell and Corporal Dohm denied any physical» assault of Mr. Williams or Ms. Johnson, other than the straight-arm bar take down of Mr. Williams by Officer Blacknell.

Nevertheless, to support their version of what occurred during the execution of the search warrant on July 28, 2010, the plaintiffs attempted to discredit the testimony of the police officers. The plaintiffs introduced evidence showing that Officer Thompson had been arrested and convicted of stealing evidence from the BRPD evidence room following the July 28, 2010 search of the plaintiffs’ residence. They also established that Officer Thompson suffered from an addiction to pain pills and was possibly under the influence of a controlled substance during the July 28, 2010 search. Additionally, the plaintiffs introduced a videotape of Corporal Dohm hitting a man with his police car as the man got out of his vehicle after having led the police on a high-speed chase for which he was later sued.

17Finally, to substantiate their claims, the plaintiffs submitted photographs of themselves taken after the incident and medical records for treatment they allegedly sought as a result of the physical assault by Officer Blacknell and Corporal Dohm. The trial court, however, found the medical evidence did not corroborate the plaintiffs’ allegations “that they were hit ‘multiple’ times — ‘several’ times about their face and body.” Reviewing the medical evidence, we cannot say that the trial court was clearly wrong in its conclusion. Thus, considering the conflicting testimony presented by the parties, as well as the fact that the medical evidence introduced by the plaintiffs does not clearly corroborate their version of what allegedly occurred during the execution of the search warrant at their residence, we reject the plaintiffs’ first two assignments of error. Based on the evidence presented, the trial court was not manifestly erroneous in finding that the plaintiffs failed to meet their burden of proving a significant injury that resulted from the use of objectively unreasonable force that was clearly excessive of the need. Likewise, for the same reason, we find the plaintiffs’ state law claims of negligence premised on La. C.C. art. 2315 to be without merit.

Un their remaining assignment of error, the plaintiffs assert that the trial court erred in finding that Mr. Williams’ due process rights were not violated when he was “forced” to work off charges by selling drugs for the police. The trial court did not specifically address the plaintiffs’ violation of due process claim; however, silence in a judgment as to any part of a demand made in a litigation is construed as a rejection of that part of the claim. Hendrix v. Hendrix, 457 So.2d 815, 818 (La.App. 1st Cir.1984).

The due process clause of the Fourteenth Amendment includes a substantive right to be free from abusive use of government power without any legitimate law enforcement objective. A government official’s abuse of power must rise to the conscious-shocking level in order to be actionable under the Fourteenth Amendment. What shocks the conscious depends on the circumstances of each case. Richard, 6 F.Supp.2d at 571.

When asked at trial why he agreed to participate in a controlled drug buy for the police, Mr. Williams testified: “I really felt threatened at the time, you know. They had already beat me up, hit me in the head with a [rifle], and they saying stuff like, we are going to take your kids, we going to take your wife[] to jail, so either you do something for us, you know.” However, Officer Thompson, Corporal Dohm, and Lieutenant Arnett all testified that the arrangement for Mr. Williams to assist with controlled drug buys was initiated by Mr. Williams. Mr. Williams signed a written agreement to act as a confidential informant for the police. A recording of an interview in which Mr. Williams verbally agreed to cooperate with police was also introduced into evidence.

|9In the audio recording, Mr. Williams stated that he wanted to “help y’all [the police] make a bust to help myself,” and he was. willing to help himself out “by any means necessary.” He identified the type of bust as being a “drug bust” or “maybe, possibly, a weapon” and the type of narcotics as being “crack cocaine.” “When Mr. Williams was again asked if he understood that he did not have to participate in a drug bust, that he was not being made to do it, and that he was doing it of his own free will,” he repeatedly replied, “yes, sir.” And when asked one final time if he was “willing to go through with this,” Mr. Williams responded, “yes, sir” and used profanity to emphasize his willingness.

When describing a controlled drug buy in which Mr. Williams participated, both Lieutenant Arnett and Corporal Dohm stated that Mr. Williams did not actually purchase any drugs. Instead, Mr. Williams contacted an individual to arrange a controlled buy of crack cocaine, and the police later apprehended the person with whom Mr. Williams had made arrangements to buy cocaine outside of the presence of Mr. Williams.

In considering the evidence presented in the record regarding Mr. Williams’ participation in the controlled drug buy with the police, we first observe that Mr. Williams was used to help facilitate the purchase of drugs, not the sale of drugs as argued by the plaintiffs in their brief on appeal. Second, while Mr. Williams asserts that he felt threatened and forced to cooperate with the police, the testimony of officers Thompson, Dohm, and Arnett, as well as the confidential informant agreement signed by Mr. Williams and the audio recording of his verbal agreement to participate in a controlled drug buy, all contradict Mr. Williams’ assertion. And finally, outside of Mr. Williams’ disputed assertion that he was threatened or forced to participate in the controlled drug buys, it is otherwise evident that performing undercover drug activities using a confidential informant is not only not an abusive use of government power, but such activity often furthers legitimate law-enforcement objectives of maintaining the law by combating the trafficking of drugs. Infiltration of drug rings and limited participation in the unlawful present practices of such rings is a recognized and permissible means of apprehension. See United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973); Reaux v. Louisiana Board of Medical Examiners, 02-0906, p. 13 (La.App. 4th Cir.5/21/03), 850 So.2d 723, 732, writ denied, 03-2546 (La.11/26/03), 860 So.2d 1138.

Hence, we find no error in the trial court’s failure to find that Mr. Williams’ due process rights were violated by his participation in controlled drug buys for the police.

CONCLUSION

Accordingly, for the foregoing reasons, we find that the trial court properly dismissed the claims of the plaintiffs based on the evidence presented in the record. We therefore affirm. All costs of this appeal are cast to the plaintiffs, Johnathan Car-nell Williams, Sr. and Mona Monique Johnson.

AFFIRMED.

      . Prior to filing their petition for damages, the plaintiffs filed a “Verified Petition to Take Testimony and Discovery in Perpetuity” on September 8, 2010, to which they attached a draft of their proposed petition for damages and deposition notices.

      . The plaintiffs filed suit individually and also on behalf of their minor children.

      . Lieutenant Arnett testified that Ms. Johnson was seated separately from Mr. Williams, in a chair, but still handcuffed.
      It should be noted that it is not uncommon for police to handcuff, for safety reasons, persons in or near the place to be searched in the execution of a search warrant for controlled substances when, as here, the location of the search is in a high crime area and the police have valid reasons to suspect the presence of weapons. See State v. Thompson, 11-0915, pp. 25-26 (La.5/8/12), 93 So.3d 553, 571-572; State v. Palmer, 09-0044, pp. 8-10 (La.7/1/09), 14 So.3d 304, 309-310; State v. Trotter, 37, 325, p. 8 (La.App.2d Cir.8/22/03), 852 So.2d 1247, 1252, writ denied, 03-2764 (La.2/13/04), 867 So.2d 689. In the affidavit to procure the search warrant, Corporal Dohm swore that a reliable confidential informant informed detectives that he had purchased at the plaintiffs’ residence a quantity of crack cocaine from a black male with a dark skin tone who appeared to be 25-30 years old, 170 pounds, and 5'9" in height, approximately. The confidential informant also stated that the unknown black male told him that he had additional quantities of crack/cocaine for sale, and the confidential informant also observed that the black male possessed a handgun.

      . Ms. Johnson's medical records from her August 4, 2010 visit to the Baton Rouge General Medical Center reveal that she was diagnosed with contusion of the posterior scalp and left knee; however, this diagnosis appears to be largely premised on physical complaints made by Ms. Johnson. According to the same records, a physical exam of Ms. Johnson revealed that that she was "moderately tender to palpitation” over her posterior scalp and left knee, but there was "[n]o evidence of swelling or effusion” over the posterior scalp or left knee, that the skin over the "posterior scalp and left knee [was] intact with no areas of abrasions,” and generally her physical exam revealed ”[n]o evidence of significant external trauma.” Additionally, records from Our Lady of the Lake Regional Medical Center document that a physical exam of Ms. Johnson on July 28, 2010, the date of the incident, revealed "NO EVIDENCE OF ACUTE BRUISING, ABRASIONS OR LACERATIONS ON ENTIRE BODY."

      . We feel it prudent to further mention that while the trial court did not specifically address the photographs the plaintiffs submitted to substantiate their claims of physical injury, we observe that other than the laceration on Mr. Williams' forehead, none of the other injuries alleged by the plaintiffs are readily apparent in the photos submitted. In particular, there are no discernible signs of discoloration or swelling in the photographs of Ms. Johnson. And Mr. Williams' lips do not appear to be unusually or abnormally swollen in his photos, which are slightly blurred. Considering the trial court’s vantage point of being able to compare the photographs to the live appearance of the plaintiffs in court, we feel particularly constrained by the manifest error standard of deference in light of the equivocal and conflicting nature of the evidence presented.

      . It is unclear from the record whether Mr. Williams and Ms. Johnson were married. Mr. Williams sometimes referred to Ms. Johnson as his wife and then other times referred to her as his girlfriend. In the medical records submitted into evidence, the marital status of both plaintiffs was listed as "single."

      . The agreement is titled "Conduct and Conditions of Cooperating Individuals (C.I.)."