text:
    ADAIR ASSET MANAGEMENT, LLC/US BANK v. HONEY BEAR LODGE, INC.
    No. 2012 CA 1690.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2014.

      Melissa T. Castille, Baton Rouge, LA, for Adair Asset Management, LLC/US Bank.
    Charles L. Stern, Jr., Danielle C. Ba-bashoff, Margaret V. Glass, Steeg Law Firm, LLC, New Orleans, LA, for Appel-lee Entrust Mid-South, L.L.C.

    Michael J. Laughlin, Metairie, LA, William G. Cherbonnier, Jr., Gretna, LA for Honey Bear Lodge, Inc.
    Before PARRO, GUIDRY, and DRAKE, JJ.

      . Entrust Mid-South, L.L.C. (Entrust) is the successor-in-interest to Adair Asset Management, LLC/US Bank (Adair); its interests in this litigation are aligned with those of plaintiff-appellee, Adair.

   PARRO, J.

IgHoney Bear Lodge, Inc. (HBL) appeals a February 8, 2010 judgment in favor of Adair Asset Management, LLC/US Bank (Adair), granting Adair’s motion for summary judgment and confirming and quieting Adair’s title relating to its acquisition of HBL’s immovable property by tax sale. HBL also appeals a March 19, 2012 judgment denying its motion for new trial, rehearing, or in the alternative, to nullify judgment. This court, ex proprio motu, issued a rule to show cause why HBL’s appeal should not be dismissed as untimely and whether the March 19, 2012 judgment lacked necessary decretal language for a final judgment. Adair also filed a motion to dismiss the appeal. For the following reasons, we withdraw the rule to show cause, deny the motion to dismiss, and maintain the appeal. After review on appeal, we also vacate the judgment of February 8, 2010, reverse the judgment of March 19, 2012, and remand this matter for further proceedings.

BACKGROUND

On September 30, 2004, HBL, a Kentucky corporation, purchased immovable property designated as 300 A & B Live Oak Boulevard in the city of Mandeville, Parish of St. Tammany (the property). In the act of cash sale, the 2004 taxes were assumed by HBL. On December 20, 2004, the St. Tammany Parish Sheriff sent HBL notice that ad valorem taxes on the property were due by December 31, 2004. HBL failed to pay the taxes and, on April 14, 2005, the sheriff sent a notice of the tax delinquency to HBL by certified mail to its listed address of 809 E. Dixie Avenue, Elizabethtown, Kentucky, 42701. Carol O. Schwab, HBL’s secretary and treasurer of record, signed the return receipt for this notice on April 25, 2005.

The taxes remained unpaid, and on June 8, 2005, the property was sold to Adair at the St. Tammany Parish tax sale for unpaid 2004 ad valorem taxes. The sheriff sent certified letters in each of the next three years to HBL at the Dixie Avenue address, advising HBL of the tax sale and its right to redeem the property. These notices were |3returned, “not deliverable,” and HBL did not redeem the property within the three-year redemption period following recordation of the tax sale, as provided in LSA-Const. art. VII, § 25(B)(1). Therefore, on April 6, 2009, Adair filed a petition to quiet tax title, pursuant to LSA-R.S. 47:2266(A)(1).

Adair was unable to serve HBL with citation and the petition via certified mailing to the Dixie Avenue address under the Long-Arm Statutes, LSA-R.S. 13:3201 and 3204. Therefore, it moved for the appointment of a curator ad hoc to represent HBL. On May 7, 2009, the court appointed attorney Joseph T. Oubre as curator, pursuant to LSA-R.S. 47:2266(A)(2) and LSA-R.S. 13:3204(B), and citation and notice were served on him. Oubre sent two certified letters to HBL at its two listed addresses, one of which was the Dixie Avenue address. He also published notice of the petition in the official local newspaper, filed a note of evidence in the record, and filed a general denial on behalf of HBL. The certified letters were returned “not deliverable,” no communication was received from HBL, and no further pleadings were filed by or on behalf of HBL. On November 24, 2009, the court allowed Oubre to withdraw as curator ad hoc for HBL. However, no notice of his withdrawal was sent to Adair.

On December 22, 2009, because HBL had taken no steps to annul the tax sale, Adair filed a motion for summary judgment to confirm and quiet its tax title, requesting service on HBL through Oubre. The sheriffs service return in the record shows domiciliary service was made on Oubre by delivery to his father on January 6, 2010. A hearing on Adair’s motion was held on February 8, 2010. No one appeared for HBL, and the court rendered and signed a judgment in favor of Adair on that date, recognizing Adair as the sole owner of the property. The clerk mailed notice of the judgment to Oubre on March 15, 2010.

On or about June 11, 2010, the occupants of the property were served with a legal notice to vacate the premises. Following the eviction notice, a Louisiana attorney | ¿representing Carol Schwab contacted Adair’s attorney to advise that his client owned the property. In a letter dated July 1, 2010, Adair’s attorney responded, describing the legal proceedings and advising that Adair was now the legal owner of the property. On October 3, 2011, HBL filed a “Motion for New Trial/Rehearing, or, in the Alternative, Motion to Annul Judgment,” contending that the February 8, 2010 judgment was null, because the motion for summary judgment had not been served on HBL. HBL argued that service on Oubre was insufficient, because he had withdrawn as curator ad hoc before the motion was filed and no longer represented HBL in any capacity. HBL served the motion on Adair and Entrust; Entrust opposed the motion.

A hearing was held on December 22, 2011. After considering the evidence, briefs, and oral argument, the court denied the motion for new trial/rehearing/nullity. A judgment was signed on March 19, 2012. HBL appealed the March 19, 2012 judgment, as well as the February 8, 2010 judgment.

In this appeal, HBL raises three related assignments of error: (1) the trial court abused its discretion in denying HBL’s timely filed motion for new trial from the judgment granting a motion for summary judgment, which was heard and granted without notice of the motion having been served on HBL; (2) the trial court erred in denying HBL’s timely filed motion to annul the judgment granting a motion for summary judgment without evidence that the motion was served on HBL; and (3) the trial court erred in granting summary judgment in favor of Adair, despite the fact that HBL was not properly served with notice of the motion and where a genuine issue of material fact exists as to whether HBL was duly noticed with the tax sale of the property.

This court’s rule to show cause and Adair’s motion to dismiss the appeal as untimely turn on the same issues as those raised in the assignments of error. Therefore, our analysis of and decision on the assignments of error will also guide our decision on the rule to show cause and motion to dismiss.

ANALYSIS

In all of these assignments of error, HBL bases its arguments on the allegation that notice of the motion for summary judgment was not properly served on it, because Oubre had withdrawn as curator ad hoc and no longer represented HBL when the | ¿motion for summary judgment was served on him. In its reasons for judgment on the motion for new trial/rehearing/nullity, the court explained its decision on this issue as follows:

The mover/defendant raises issues concerning the fact that the curator ad hoc was not present at the hearing on the Motion for Summary Judgment, having waived his appearance, and also regarding the curator’s failure to re-enroll prior to being served as curator ad hoc for Honey Bear Lodge, Inc. with the notice of the hearing for the motion for summary judgment. The Court finds that these issues do not create a nullity action. [LSA-C.C.P.] art. 5098 provides that: “The failure of an attorney appointed by the court to represent an unrepresented party, to perform any duty imposed upon him by, or the violation by any person of, the provisions of Articles 5092 through 5096 shall not affect the validity of any proceeding, trial, order, judgment, seizure, or judicial sale of any property in the action or proceeding, or in connection therewith.”

We do not find this explanation persuasive, as there was no indication that Oubre failed to represent HBL or neglected his duties as curator ad hoc. The issue in this case is not whether Oubre properly performed his duties, but whether HBL was properly served with the motion for summary judgment, such that the judgment against it was legally valid.

Service of Process/Nullity of Judgment

A judgment rendered against a defendant who has not been served with process and has not entered a general appearance is an absolute nullity due to a “vice of form.” See LSA-C.C.P. arts.2001 and 2002(A)(2); Tunnard v. Simply Southern Homes, L.L.C., 07-0945 (La.App. 1st Cir.3/26/08), 985 So.2d 166, 168; Avants v. Kennedy, 02-0830 (La.App. 1st Cir.12/20/02), 837 So.2d 647, 654, writ denied, 03-0203 (La.4/4/03), 840 So.2d 1215; Barrios v. Barrios, 95-1390 (La.App. 1st Cir.2/23/96), 694 So.2d 290, 294, writ denied, 96-0743 (La.5/3/96), 672 So.2d 691. Article 2002(A)(2) has also been interpret ed to provide for a nullity action by a defendant-in-rule. See Zenon v. Liberty Mut. Fire & Cas. Ins. Co., 03-0971 (La.App. 1st Cir.4/2/04), 871 So.2d 642, 644, writ denied, 04-1549 (La.10/1/04), 883 So.2d 988. An action under Article 2002(B) to annul a judgment for a vice of form may be brought by any interested person at any time, before any court, and through a collateral proceeding, such as a contradictory motion or rule. See Leonard v. Reeves, 11-1009 (La.App. 1st Cir.1/12/12), 82 So.3d 1250, 1260.

| (Article 1312 of the Louisiana Code of Civil Procedure provides that, other than in certain enumerated exceptions, “every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is applicable.” According to the applicable version of Article 1813, such a pleading may be served by the sheriff or by mail, facsimile transmission, or delivery to the adverse party or his counsel of record; or, if there is no counsel of record and the address of the adverse party is not known, by delivery of a copy of the pleading to the clerk of court. However, the applicable version of Paragraph C of Article 1313 stated:

Notwithstanding Paragraph A of this Article, if a pleading or order sets a court date, then service shall be made by registered or certified mail or as provided in Article 1314.

Article 1314(A) provides that a pleading that is required to be served, but may not be served under Article 1313 because it sets a court date, shall be served by the sheriff by service on the adverse party in any manner permitted under Articles 1231 through 1266, by personal service on the counsel of record of the adverse party, or by delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is not known. The applicable version of Paragraph B of Article 1314 stated that personal service on a partner or office associate of a counsel of record, in the office of such counsel of record shall constitute valid service under Paragraph A of this Article. The burden of persuasion that applies to a party seeking to overcome the rebuttable presumption afforded a completed sheriffs return of service by LSA-C.C.P. art. 1292 is preponderance of the evidence. Accordingly, a party attacking service must prove that, more probably than not, proper service was not made. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90, 97.

The obvious purpose of Articles 1313 and 1314 is to fulfill the constitutional requirements of due process notice, as set forth in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). See Rawley v. Rawley, 357 So.2d 286, 289 (La.App. 1st Cir.), writ denied, 357 So.2d 1154 (La.1978), cert denied, 439 U.S. 968, 99 S.Ct. 459, 58 L.Ed.2d 427 (1978). At a minimum, the words |7of the due process clause require that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Mullane, 70 S.Ct. at 656-57. To meet such requirements, notice to counsel of record must be effected under circumstances from which it can at least be reasonably presumed that notice resulting from such service will be communicated to the litigant. Rawley, 357 So.2d at 289.

In the Rawley case, service was made on an attorney known by the appellees’ attorney to have previously withdrawn as counsel. This court stated that even though that attorney remained technically counsel of record, that fact did not render such service valid under the circumstances, in which the record showed the appellant had no knowledge of the proceedings to execute a partition judgment until after the partition sale of the property. This court found that the partition sale was null and void for lack of proper service on the appellant. Rawley, 357 So.2d at 289. The Rawley case differs from the matter before us, because in our case, Adair’s attorney did not have notice of Oubre’s withdrawal as curator ad hoc for HBL. However, as in Rawley, the record before us shows that HBL had no notice of the motion for summary judgment that resulted in a judgment recognizing the tax sale to Adair until months after that judgment was rendered.

In Billiot v. Sea Life, Inc., 384 So.2d 1023 (La.App. 4th Cir.1980), discovery sanctions were imposed by the district court on the defendants, resulting in the confirmation of a default judgment against them. The original motion for sanctions had been served on the defendants’ attorney, but the hearing was continued. Two days later, defendants’ attorney withdrew as counsel of record, but the notice of the new hearing date was served on him, not on the defendants. No one appeared on their behalf at the hearing, and sanctions in the form of striking their answer and confirmation of a default judgment were imposed. The appellate court noted that a hearing to impose sanctions requires proper notice. Billiot, 384 So.2d at 1025. Stating that “[s]ervice of notice on an attorney who has withdrawn prior to receipt of that notice is insufficient,” the court held that the order striking the defendants’ answer was null and the default judgment was invalid. Id.

In Hill v. Lopez, 05-0182 (La.App. 1st Cir.2/22/06), 929 So.2d 80, the plaintiffs filed a petition, seeking to rescind the purchase of a business from the defendants. The defendants answered and reconvened, seeking damages for breach of contract and return of movable property used in the business. The answer and reconven-tional demand were served by “fax”; the reconventional demand was never served on the plaintiffs by the sheriff. The defendants then filed a motion for summary judgment, which was served on plaintiffs’ counsel by “fax or U.S. Mail.” No proposed order accompanied the motion, nor did the trial court contemporaneously order the motion set for hearing. The defendants then filed an order to set the motion for hearing, but the record did not contain evidence of any request for service of the order. Nor did the record show any notice to the plaintiffs after the hearing date had been set. Neither the plaintiffs nor their attorney appeared at the hearing on the motion, and judgment on the reconventional demand was rendered in favor of the defendants and against the plaintiffs, dismissing their petition with prejudice. Id. at 82. On appeal, this court concluded that the defendants, as plaintiffs-in-recon-vention, could not properly move for summary judgment on their reconventional demand until after an answer was filed. And, because the plaintiffs had not been served with the reconventional demand, they were under no obligation to file an answer. Therefore, the summary judgment was an absolute nullity. Id. at 83.

Of particular relevance in the Hill case was this court’s interpretation of the prior version and revision of LSA-C.C.P. art. 1313(A). This court stated that the prior version required service by the sheriff of any post-petition pleading that required an appearance or answer and, because the motion for summary judgment required some form of response, answer, and appearance, service could not be perfected by mail. Hill, 929 So.2d at 83. Article 1313(A) was amended in 1999 to allow service of most post-petition pleadings by regular mail or facsimile transmission, subject to the express exception in Article 1313(C), which requires that pleadings or orders setting a court date must be served by registered or certified mail or by the sheriff. This court | concluded that a summary judgment motion is a type of contradictory motion contemplated by Article 1313(C), and that a certificate verifying service “by fax or U.S. mail” is deficient, in that it fails to verify service by registered or certified mail. Id. at 83-84. Therefore, the judgment was null.

In Davis v. Dunn & Bush Const., 01-2472 (La.App. 1st Cir.4/9/03), 858 So.2d 451, the workers’ compensation judge allowed claimant’s counsel to withdraw from representation of her incarcerated client. When the claimant failed to appear for trial several months later, the court dismissed his claims. A motion to nullify the judgment was filed by new counsel and was denied by the court. Id. at 453. On appeal, this court held that the claimant was entitled to written notice of trial when his attorney was allowed to withdraw, stating:

When a trial court provides written notice of a trial date to the attorney of record, but the attorney thereafter moves to withdraw as attorney of record, the trial court bears the responsibility of ensuring that the litigant receives notice of the pending trial in writing. The court can satisfy this notice requirement by reissuing the notice of trial to the unrepresented litigant directly. Otherwise, the court must receive reasonable proof that the withdrawing attorney has notified the client in writing of the trial date. This can be accomplished by attaching to the motion to withdraw a certified letter to the client or other evidence indicating the client has received unequivocal written notice of trial. If the record demonstrates that a litigant did not receive notice of trial, then he was denied procedural due process and fundamental fairness.

Id. at 453. The case was remanded for the court to receive evidence concerning whether the claimant had received notice of the trial.

In another case involving the withdrawal of an attorney, Roman v. LRASIF Claims Mgmt, 11-393 (La.App. 5th Cir.12/13/11), 81 So.3d 895, the appellate court similarly concluded that where the unrepresented litigant’s claim was dismissed on a motion for summary judgment without any indication in the record that the claimant received notice of the hearing from his former attorney or the workers’ compensation judge, due process concerns were implicated. Id. at 898. The court held that, because of the due process implications inherent in the matter, there was no alternative but to reverse the summary judgment and to remand for a new hearing on the motion, to be held after legally sufficient service of notice of the time and place of the hearing on the claimant. Id. at 899; see also Zachary Taylor Post No. 3784 v. Riley, 481 So.2d 699 (La.App. 1st Cir.1985) (judgment vacated when two defendants, whose counsel had previously withdrawn, did not receive notice of the trial date).

In contrast to these cases, in Smith v. LeBlanc, 06-0041 (La.App. 1st Cir.8/15/07), 966 So.2d 66, this court found that service of a petition for homologation of an account on appellant’s counsel was effective, despite the fact that he had filed a motion to withdraw as appellant’s counsel of record before that petition was filed and served on him. In that case, the district court had not yet approved the attorney’s withdrawal when service was made. Therefore, the attorney remained responsible to notify his client about the petition, and service on him was proper as a matter of law. Id. at 75. Unlike the Smith case, in the matter before us, the court had already approved Oubre’s motion to withdraw as curator ad hoc for HBL. Therefore, Oubre had no further responsibility to notify HBL of the motion for summary judgment.

After examining the relevant codal articles and jurisprudence, we conclude that, because Oubre had withdrawn as curator ad hoc for HBL before the motion for summary judgment was served on him, and because the record shows that HBL was not served with and did not receive any notice of the motion or the hearing date set for the motion, the judgment rendered in favor of Adair was absolutely null for lack of proper service on HBL. Adair’s motion for summary judgment was accompanied by an order, setting the hearing date as February 8, 2010. As such, under the applicable version of Article 1313(C), service had to be made either by registered or certified mail or as provided in Article 1314. Although service on HBL was attempted by certified mail, return receipt requested, the letter containing the motion and order was returned, “undeliverable.” Therefore, service had to be made as provided in Article 1314.

Article 1314(A)(1) allows service by the sheriff on the adverse party in any manner permitted under Articles 1231 through 1266. Article 1261(A) provides that service of citation or other process on a domestic or foreign corporation must be made by personal service on any one of its agents for service of process. No such service was made in this case. If such service is not possible for various reasons, Article 1261(B) allows service to be made by personal service on an officer, director, or person named as such in the last report filed with the secretary of state, by personal service on an employee of suitable age and discretion at any place where the business of the corporation is regularly conducted, or by service under the provisions of the long-arm statutes. The record in this case establishes that none of these methods of service was accomplished.

Article 1814(A)(2)(a) allows personal service by the sheriff on the counsel of record of the adverse party or delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is not known. There is no indication that the sheriff delivered a copy of the pleading to the clerk of court. Also, there was no longer any counsel of record for HBL after Oubre’s withdrawal as curator ad hoc. We note further that the sheriffs return on service on Oubre indicates that the notice of the motion for summary judgment, along with a copy of the motion and the order setting it for hearing, were served on Oubre’s father by domiciliary service at Oubre’s address for service of process. However, domiciliary service cannot be made on a corporation. See Rue v. Messmer, 332 So.2d 591, 593 (La.App. 4th Cir.1976). Louisiana Code of Civil Procedure article 1234 provides:

Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing in the domiciliary establishment.

A corporate entity does not have a “dwelling house or usual place of abode,” nor does it have a ‘“domiciliary establishment.’ ” Id. Therefore, even if Oubre had not withdrawn as HBL’s counsel, domiciliary service on his father would not have met the statutory requirement that the motion for summary judgment be personally served on him by the sheriff. Having determined that service on Oubre did not meet the requirements of LSA-C.C.P. arts. 1313 and 1314, we must conclude that the judgment rendered against HBL on February 8, 2010, was an absolute nullity, Having so concluded, the judgment of March 19, 2012, which denied HBL’s mo-tion for a new trial on the grounds of the Lonullity of the earlier judgment, must be reversed.

Timeliness

Since an absolutely null judgment may be attacked at any time, HBL’s motion for new trial/rehearing/nullity was timely. Moreover, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by LSA-C.C.P. art. 1913. See LSA-C.C.P. art. 1974. In this case, notice of the February 8, 2010 judgment was not properly served by the sheriff and was not mailed by the clerk of court to HBL or to HBL’s counsel of record, as required by LSA-C.C.P. arts. 1913(A) and 1974. Therefore, the delay for filing a motion for new trial never commenced.

The judgment denying the motion for new trial was signed March 19, 2012. If a timely application for a new trial has been filed, a devolutive appeal may be taken within sixty days of the date of the mailing of notice of the court’s refusal to grant the application. See LSA-C.C.P. art. 2087(A)(2). The record shows that notice of the judgment denying HBL’s motion for a new trial was mailed on March 19, 2012. HBL’s motion for devolutive appeal was filed May 8, 2012, well within the sixty-day appeal delay established by Article 2087. Therefore, the appeal was also timely, and this court’s rule to show cause why HBL’s appeal should not be dismissed as untimely is withdrawn. Adair’s motion to dismiss the appeal as untimely is denied, and the appeal is maintained.

Decretal Language

This court’s rule to show cause also addressed the issue of whether the March 19, 2012 judgment contained sufficient decretal language. This court’s appellate jurisdiction extends only to “final judgments.” See LSA-C.C.P. art. 2083(A). A judgment must be precise, definite, and certain. Vanderbrook v. Coachmen Indus., Inc., 01-0809 (La.App. 1st Cir.5/10/02), 818 So.2d 906, 913. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Johnson v. Mount Pilgrim Baptist Church, 05-0337 (La.App. 1st Cir.3/24/06), 934 So.2d 66, 67. In the Johnson case, the eourt concluded that the | ^judgment, which did not dismiss the plaintiffs claims, did not contain decretal language and could not be considered as a final judgment for the purpose of an immediate appeal.

However, the March 2012 judgment in this case pertains to HBL’s motion to annul the prior judgment of February 8, 2010, That judgment did dismiss all of HBL’s claims, right, title, or interest in the property that was the subject of the suit to quiet title, and recognized Adair as the sole owner of that properly. Therefore, it was a final judgment. The appeal in this case was not taken only from the March 2012 judgment, but also from the February 2010 judgment. The March 2012 judgment states that HBL’s motion for new trial, rehearing, or in the alternative, motion to annul the February 2010 judgment was denied, thus maintaining the previous judgment rendered in favor of Adair. The judgment stated that the motion to nullify the earlier judgment was filed by HBL, that the motion was denied, and that Adair and Entrust were awarded court costs for opposing the motion. Thus, the parties were identified, and the judgment identified the relief sought and the denial of that relief. Accordingly, we find that the judgment contained sufficient decretal language to maintain the appeal. This court’s show cause order with respect to the de-cretal language of the judgment is withdrawn.

CONCLUSION

For the above reasons, we withdraw this court’s show cause order and deny Adair’s motion to dismiss the appeal. The judgment of February 8, 2010, is vacated as absolutely null; the judgment of March 19, 2012, is reversed. This matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to Adair.

RULE TO SHOW CAUSE WITHDRAWN; APPEAL MAINTAINED. MOTION TO DISMISS DENIED. JUDGMENT OF FEBRUARY 8, 2010 VACATED; JUDGMENT OF MARCH 19, 2012 REVERSED; AND CASE REMANDED.

      . The legal address of the property is "LOT 1 BLK 12 WELDON PARK CB 1100489 CB1316 269 CB1381 145 CB 1395 65 CB 1374 770 CB 1459 897 INST No 1321209, All of the said property situated in Ward No. 14 in the Parish of St. Tammany.”

      . This address and information concerning HBL’s directors, officers, and agent for service of process were on file with the Kentucky Secretary of State’s office.

      . The sheriff’s return on service shows domiciliary service "ON FATHER” at Oubre’s address of record.

      . Adair’s attorney also attempted to serve HBL at the Dixie Avenue address by certified mail under the provisions of the Long-Arm Statute. The certified return receipt was returned unsigned and the envelope was stamped "not deliverable.”

      .On April 6, 2010, Adair executed a quitclaim deed to the property to Adair Holdings, L.L.C., and on December 8, 2010, the property was sold by Adair Holdings, L.L.C. to Entrust, an unrelated third party.

      . Article 1314(B) was amended by 2012 La. Acts, No. 242, § 1, effective August 1, 2012, to broaden the persons on whom service may be made under this paragraph.

      . See 1999 La. Acts, No. 1263, § 1, eff. Jan. 1, 2000. Article 1313(A) was further amended and broadened by 2010 La. Acts, No. 185, § 1, eff. Aug. 15, 2010, to authorize service by "electronic means," which, according to the 2010 Comment, was intended to include email and facsimile transmissions.

      . Article 1313(C) was amended and paragraph (D) was added by 2012 La. Acts, No, 741, § 1, eff. Aug. 1, 2012, to allow service of a pleading or order setting a court date by actual delivery by a commercial courier.

      . Even if such delivery had been made, we have reservations about whether such delivery would meet the requirements of due process, as it seems unreasonable to presume in a case such as this that notice resulting from such service would be communicated to the litigant.


source: Caselaw Access Project

author: PETTIGREW, J. McCLENDON, J.,

license: Public Domain

text:
    Jonea Krystal Lynn THIGPEN v. LOUISIANA STATE BOARD OF NURSING.
    No. 2013 CA 0841.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2014.

      Jonea Krystal Lynn Thigpen, Baton Rouge, LA, pro se.
    Carrie Leblanc Jones, Baton Rouge, LA, for Louisiana State Board of Nursing.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

|2The plaintiff, Jonea Krystal Lynn Thig-pen (Ms. Thigpen), licensed by endorsement to practice as a Registered Nurse (RN) in Louisiana, appeals a trial court judgment which affirmed an Amended Final Order of the Louisiana State Board of Nursing (Board). The Board’s order found that Ms. Thigpen violated provisions of the Louisiana Nurse Practice Act, La. R.S. 37:911 et seq., revoked her nursing license for nine months, and imposed other conditions — following completion thereof, that she would be given the opportunity to apply for a reinstatement of that license. For the reasons that follow, we amend the order to eliminate a prohibitory condition, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

Background Facts Leading to Investigation

Ms. Thigpen was licensed by the Board by endorsement to practice as an RN in Louisiana on October 10, 2001. On or about November 3, 2010, the Board received a written complaint submitted by K.K.S., the daughter of W.K., a patient receiving home nursing care from Ms. Thigpen. K.K.S. reported that Ms. Thig-pen was “taking advantage of my father [W.K.] by convincing him to give her large amounts of money.” Attached to the complaint form, K.K.S., who stated she was also an RN, attached the following list of alleged incidents, supporting her claim that Ms. Thigpen was “consistently and continuously ... acting in a capacity beyond the authorized scope of nursing”.

1. She has a glass of wine in the evenings with patient[;]
2. She brings her personal and business paperwork to patient’s home to work on while she is caring for the patient[;]
3. She writes and signs checks from patient’s personal checking account, including payroll for workers that she has contracted, although she is not listed as a signer on the account!;]
4. She has convinced patient to lend/ gift her with money, office supplies, uniforms, refrigerator for medications, fax machine, laptop computer, file cabinets, as well as paying for rent for her office!;]
5. She has obtained a key to patient’s home as well as to his cabinet containing his checkbook.

IsThe Board promptly initiated an investigation of the allegations. Subsequently, it sent a letter informing Ms. Thigpen of the information it possessed that indicated she may have exceeded professional boundaries in violation of the Nurse Practice Act from February 2010, to the present. It also offered her an opportunity to reply within ten days of the letter, with a written explanation and supporting documentation to show compliance with all lawful requirements for the retention of her license.

Ms. Thigpen’s Position

Ms. Thigpen replied in a lengthy letter to the Board, in which she admitted receiving the amounts detailed above and that those payments were not for services rendered. She stated they were donations from W.K. to her company, Care Coordination Center; and that both she and W.K., who was Chairman of the Board for her company, thought “it was perfectly legal to donate to a company as long as you reported it on your taxes as a donation and gave a statement of the donations.” Attached to her letter, she submitted the bank statements for her company, showing all deposits and expenditures. She also admitted to using W.K.’s credit card, but asserted that it was not for her own personal use, but was used with his permission, to pay for some of her company’s expenses.

She denied creating or falsifying any documentation for services rendered, explaining that when the investigation at her office was done, her office was also conducting its own internal audit. Unwittingly, she did not include some of the backup supporting documentation for certain dates; but, she later found and submitted the proper documentation.

With regard to the incidents of drinking wine with the patient, Ms. Thigpen again did not deny that on a few occasions, during the after-hours discussions about the business, W.K. had a 1/3 glass of wine, and she had a glass. She asserted, however, that this did not occur during any professional nursing visits. She further stated that she and W.K. “both thought that as co-owner and silent partner, chairman of the board, and aside from our nursing visits, that this was ok and perfectly legal.”

|4She further explained that she met W.K. before she became his nurse, and due to his experience as a retired business owner, he was a great source of business advice to her regarding the opening of her own business. She stated W.K., told her he wanted to do something good for other people, that he believed strongly in the concept of the service her company would be offering the elderly, and that he offered to invest in the company but wished to be a silent partner. He ultimately agreed to be the Chairman of the Board of Directors for the company, continued to be involved in every step of the business, and she discussed all purchases for the company with him. She stated that she could not have started her business without the help of W.K. However, she also acknowledged that, notwithstanding the potential charges against her, she has not had any personal financial gain from the company, submitting evidence that her “annual pay” actually dropped after she started her own company.

Finally, she provided her detailed medical history and documentation to explain her intake of prescription pain medications. She asserted the medications were taken all under the direction and supervision of her treating physicians, and denied any abuse thereof. She also stated that her taking those medications did not have any negative impact on her ability to perform her nursing duties, and that in all of her years of nursing, there were no complaints of her having been impaired.

Formal Complaint by the Board

On July 19, 2011, the Board formally filed a complaint and charged Ms. Thigpen with violating the Nurse Practice Act and the rules and regulations promulgated pursuant thereto. In particular, the Board charged Ms. Thigpen with exceeding professional boundaries and unduly obtaining financial benefit from the nursing-patient relationship by accepting large sums of money from her patient and conducting increasing numbers of |Bpatient visits without justified patient need. The particulars of these charges are summarized as follows:

(1) On or about 2/23/10, she accepted $5,000.00 from patient W.K.
(2) On or about 4/26/10, she accepted $5,000.00 from patient W.K.
(8) On or about 5/4/10, she accepted $5,577.50 from patient W.K.
(4) On or about 6/3/10, she accepted $5,525.00 from patient W.K.
(5) On or about 7/20/10, she accepted $600.00 from patient W.K.
(6) On or about 8/20/10, she accepted a donation in the amount of $1200.00 from patient W.K.
(7) On or about 10/1/10, she accepted $700.00 from patient W.K.

The Board asserted the foregoing payments were not for services rendered. Additionally, the Board asserted that on July 10, 2010, August 4, 2010, September 1, 2010, and October 1, 2010, Ms. Thigpen billed and accepted payments of $920.00, $910.00, $743.83, and $2275.00, respectively, for services purportedly rendered, but that she lacked documentation to support all of those charges and that many of those were for services rendered while the patient, W.K., was in the hospital, already receiving inpatient nursing care. The letter also informed Ms. Thigpen that during February 2010 through October 2010, she exceeded professional boundaries by having glasses of wine during nursing visits at the home of patient, WX; and, that during April 2010 through January 2011, she exceeded personal boundaries by repeatedly using the credit card belonging to patient, W.K., for her own personal use. Finally, the complaint charged Ms. Thigpen with the “chronic use of controlled medications [that] may potentially affect [her] ability to safely practice nursing.”

The complaint further stated that the facts constituted the following violations of the Nurse Practice Act and the rules and regulations promulgated by the Board:

—Respondent is unfit or incompetent by reason of negligence, habit, or other cause; La. R.S. 37:921(3);
—Respondent is guilty of moral turpitude. La. R.S. 37:921(8);
h — Respondent failed to practice nursing in accordance with the legal standards of nursing practice; L.A.C. 46:XLVII.3405(a);
—Respondent failed to utilize appropriate judgment, L.A.C. 46:XLVII.3405(c);
—Respondent misappropriated items of an individual, agency, or entity; L.A.C. 46:XLVII3405(i);
—Respondent falsified records; LAC. 46:XLVII.3405(j);
—Respondent failed to act, or negligently or willfully committed an act that adversely affects the physical or psychosocial welfare of the patient; L.A.C. 46:XLVII.3405(k);
—Respondent exceeded professional boundaries ...; L.A.C. 46:XLVII.3405(t);

Administrative Hearing and Findings

A hearing was held before a five-member panel of the Board on December 13, 2011, during which witnesses testified and evidence was submitted. On December 21, 2011, a final order was entered by the Executive Director of the Board, amended on January 23, 2012, finding that Ms. Thigpen violated the Nurse Practice Act in six respects: (1) La. R.S. 37:921(3) — is unfit or incompetent by reason of negligence, habit, or other cause; (2) L.A.C. 46:XLVII.3405(A)(a) — failed to practice nursing in accordance with the legal standards of nursing practice; (3) L.A.C. 46:XLVII.3405(A)(c) — failed to utilize appropriate judgment; (4) L.A.C. 46:XLVII.3405(A)(i) misappropriated items of an individual, agency, or entity; (5) L.A.C. 46:XLVII.3405(A)(k) — failed to act, or negligently or willfully committed an act that adversely affects the physical or psychosocial welfare of the patient; and (6) L.A.C. 46:XLVII.3405(A)(t) exceeded professional boundaries.

The Board found those violations constituted sufficient cause pursuant to La. R.S. 37:921 to suspend Ms. Thigpen’s license to practice as an RN in Louisiana, and ordered that it be suspended for a minimum of nine months, during which Ms. Thigpen shall refrain from working in any capacity as an RN, and following which she would have the opportunity to request license reinstatement after completion of the conditions also imposed, including submitting to comprehensive inpatient psychiatric, psychological and substance abuse evaluation, paying the Board a fine of $5,000.00, paying restitution to 17W.K. in the amount of $22,500.00, paying costs to the Board in the amount of $3,600.00 and expert witness fees of $6,000.00. Finally, Ms. Thigpen also was ordered (added by the amended order), to “refrain from any involvement with and/or participation in any/all relationships of any kind with Patient WK from this point forward.”

Judicial Review of Board’s Amended Final Order

On January 27, 2012, Ms. Thigpen filed a Petition for Judicial Review with the district court of the Board’s final amended order. Upon motion by Ms. Thigpen, the trial court granted a stay of the order, pending judicial review thereof. On September 12, 2012, the district court held a hearing, and after argument of the parties, took the matter under advisement. On January 25, 2013, the court signed a judgment, upholding the ruling of the Board, finding Ms. Thigpen -violated the nursing practice act, specifically finding that her actions fell within the scope of “exceeding professional boundaries.” The court also upheld the board’s order of restitution and the imposition of a fine. However, the court ruled that the amounts assessed as costs and expert witness fees were arbitrarily fixed, and remanded the matter to the Board for a contradictory hearing to establish the amount of costs and expenses, including witness fees to be imposed upon Ms. Thigpen.

Ms. Thigpen now appeals the judgment of the trial court. She requested and was granted a stay by the trial court of the Board’s final amended order pending resolution of the appeal.

APPLICABLE LAW

Standard of Review

When reviewing an administrative final decision, the district court functions as an appellate court. An aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal. On review of the | ^district court’s judgment, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Consequently, this court will conduct its own independent review of the record and apply the standards of review provided by La. R.S. 49:964(G). Doc’s Clinic, APMC v. State ex rel. Dept. of Health and Hospitals, 2007-0480, pp. 8-9 (La.App. 1 Cir. 11/2/07), 984 So.2d 711, 718-719, writ denied, 2007-2302 (La.2/15/08), 974 So.2d 665. See also La. R.S. 49:965. An appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency, not the decision of the district court. Raines v. Louisiana State Nursing Bd., 2012-1831, p. 2 (La.App. 1 Cir.6/7/13), 2013 WL 2488130(unpublished) writ denied, 2013-2048 (La.11/15/13), 126 So.3d 471.

Judicial Review of Administrative Decision

Judicial review of administrative decisions is governed by La. R.S. 49:964, which provides, in pertinent part:

G. The court may affirm the decision of the agency or remand the case for further proceedings, The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

19Nurse Practice Act

The Board is responsible for overseeing the practice of registered nursing within the State of Louisiana and to meet the legislative .intent and purpose of the Nurse Practice Act of promoting, preserving, and protecting the public health, safety, and welfare of the citizens of this state, by regulating nursing education and practice and ensuring all individuals practicing under the title of “RN” be licensed and regulated. La. R.S. 37:911.

The grounds for disciplinary proceedings of registered nurses are set out in La. R.S. 37:921, which provides, in pertinent part (those provisions which Ms. Thigpen was charged with violating):

The board may deny, revoke, suspend, probate, limit, or restrict any license to practice as a registered nurse or an advanced practice registered nurse, impose fines, and assess costs, or otherwise discipline a licensee and the board may limit, restrict, delay, or deny a student nurse from entering or continuing the clinical phase of nursing education upon proof that the licensee or student nurse:
(3) Is unfit or incompetent by reason of negligence, habit, or other cause.
(8) Is guilty of moral turpitude

“Other causes” that may render a registered nurse “unfit” or “incompetent” have been delineated by the Board in La. Admin. Code, Title 46, Part XLVII, § 3405(A), in pertinent part, as follows:

Other Causes — includes, but is not limited to:

a. failure to practice nursing in accordance with the legal standards of nursing practice;
c. failure to utilize appropriate judgment;
i. misappropriating items of an individual, agency, or entity;
lia)', falsifying records;
k. failure to act, or negligently or willfully committing any act that adversely affects the physical or psychosocial welfare of the patient ...;
t. exceeds professional boundaries, including but not limited to sexual misconduct; ....

(Emphasis added.) The Administrative Code further defines “professional boundaries” as “the limits of the professional relationship that allow for a safe therapeutic connection between the professional and the client.” L.A.C. 46:XLVII.3405(A).

DISCUSSION AND ANALYSIS

On appeal, Ms. Thigpen essentially maintains that the Board erred in finding she violated the Nurse Practice Act, because that act does not prohibit a nurse from entering into a business relationship with a patient. She objects to the characterization of that relationship as “improper” and contends that the Board cannot demonstrate a violation of the Nurse Practice Act or that, she overstepped her role as a nurse. She maintains that there is no rule in the act prohibiting a nurse-patient business relationship and that the Administrative Code, while including definitions for “other cause,” does not include a business relationship as a prohibited practice. In the alternative, she appears to assert that even if the Nurse Practice Act were not so vague (and a business relationship were prohibited), that the evidence in this case was insufficient to prove that she crossed professional boundaries. Finally, she asserts that the inclusion in the Board’s order prohibiting her from having any further contact whatsoever with W.K. violates her Constitutional First Amendment Right of Freedom of Association.

Exceeded Professional Boundaries?

Ms. Thigpen has admitted that she accepted monies and entered into a business relationship with W.K. At the outset, we reject Ms. Thigpen’s contention that because a nurse-patient business relationship is not listed in the Nurse Practice Act as prohibited conduct, that it cannot form the basis for disciplinary action thereunder. The clear language of the statute establishes that it is not exclusive; indeed, only sexual |nmisconduct is specified. A nurse may be unfit by reason of negligence, habit, or other cause. La. R.S. 37:921(3). The rules and regulations promulgated by the Board lists twenty-four specific acts or conduct that can constitute “other cause,” and again, this list is expressly non-exclusive. L.A.C.46:XLVIL3405(A). Thus, we find no merit to the contention on appeal that because it is not expressly prohibited, that a nurse-patient business relationship cannot be found to constitute a violation of the Nurse Practice Act.

Indeed, those very regulations define “professional boundaries” as “the limits of the professional relationship that allow for a safe therapeutic connection between the professional and the client.” Ms. Thigpen has never denied receiving and accepting more than $22,000.00 from W.K., and the evidence in the record amply supports that these payments (with the exception of the initial $5,000.00 cheek) were indeed made to Ms. Thigpen by W.K during the time Ms. Thigpen was also W.K’s nurse. Ms. Thigpen maintains that all of the financial assistance she received from W.K. was used in the development of her company in which he was a silent partner. Thus, we now examine the evidence in the record to determine if the Board’s finding that Ms. Thigpen’s receipt of these funds and her business relationship with W.K. imperiled the “safe therapeutic connection between” her and W.K. such that her actions violated the Nurse Practice Act by exceeding professional boundaries.

EVIDENCE PRESENTED

Relationship Between Ms. Thigpen and W.K.

W.K’s daughter, K.K.S., filed the initial complaint with the Nursing Board and also testified at the hearing. She stated W.K. was ninety years old at the time of the hearing. She stated that she and her five siblings first met Ms. Thigpen when she was the home health nurse that attended their mother and W.K. at their home until her mother passed away, three years prior to the hearing. At that time, and up until W.K. began the “business relationship” with Ms. Thigpen, K.K.S. testified that she had been an RN for twenty years. She also helped with her parents, overseeing their care and helping with financial ac-countings. She stated that she and her father had always had a very close relationship that quickly began to deteriorate | i2when, shortly after the death of her mother, K.K.S. noticed and questioned W.K. about the unusual number of visits from, and checks that he was paying to, Ms. Thigpen, She also noticed that while Ms. Thigpen’s visits to the home when she was caring for her mother were always “strictly nursing responsibilities,” this all changed shortly after her mother died. While she understood that Ms. Thigpen would continue to come to the home to provide the same nursing services to W.K., K.K.S. was unaware that Ms. Thigpen would also be taking care of W.K’s expenses and personal errands. She stated that as an RN, she believed that the transfer of funds from W.K. to Ms. Thigpen was unethical; and that when she attempted to speak with W.K. about it, he told her it was none of her business. Shortly thereafter, W.K. removed K.K.S. from all of his banking accounts, refused her continued help with the finances, and gradually ceased all communication with her. Prior to the relationship ending, K.K.S. was able to make copies of all the checks W.K., wrote to Ms. Thigpen, as well as the credit card and bank statements, all of which were submitted into evidence at the hearing. K.K.S. testified that many of the signatures on the checks entered into evidence did not appear to be the true signature of her father, and that she was unaware that Ms, Thigpen had any signing rights to W.K./s checking accounts. K.K.S. testified that around that same time that she discovered the checks to Ms. Thigpen, she became aware that W.K. fired his long-term CPA because the CPA had also begun questioning him about the checks being paid to Ms. Thigpen. At that point, W.K. told the CPA he no longer needed his services,

K.K.S. also testified that she was concerned about the increased frequency of the visits to the home by Ms. Thigpen, many of which were not nursing related; and that in her opinion, she thought Ms. Thigpen was taking advantage of W.K’s decision making. Although she considered W.K. to be of sound-mind, she noticed that he believed everything Ms. Thigpen said and ceased listening to anyone else. She stated that W.K. always looked up to nurses and thought “what they said was God.” K.K.S. testified that shortly after W.K. began seeing more of Ms. Thigpen, her relationship with W.K. deteriorated to a point of being non-existent in a short period of time.

11sDebbie Lacombe, W.K.’s housekeeper for seventeen years, also testified at the hearing. She stated that W.K. and his wife had become part of her family and that after W.K’s wife died, she “took [W.K.] under [her] wing,” trying to protect him more than before. She stated that she and W.K. had always had a very good relationship. However, shortly after W.K.’s wife died, Ms. Lacombe “started seeing things that just wasn’t right.” She explained she noticed the arrival of uniforms and other packages coming to the house that she later found out W.K. had purchased for Ms. Thigpen’s business. She noticed a much greater frequency of Ms. Thigpen’s visits to the house, and that these visits were now often conducted in the office at the house. She stated that she often overheard Ms. Thigpen telling W.K. that she needed help to pay her bills. Ms. Lacombe testified that she witnessed certain purchases W.K. made for Ms. Thigpen, including a refrigerator, filing cabinets, files, and folders. She stated she had witnessed Ms. Thigpen and W.K. drinking wine together at the house on one occasion, and that she was sent to purchase a bottle of wine approximately once every two weeks. She also testified that Ms. Thigpen sometimes ate at the house with W.K. and that other times, they would go out to eat together. She was also aware that W.K. had given Ms. Thig-pen his credit card. Ms. Lacombe testified that after W.K’s wife died, she thought Ms. Thigpen influenced W.K. a lot and that “he was different” and “just wasn’t the same anymore.” Ms. Lacombe stated she was becoming increasingly uncomfortable with the things she felt just weren’t right, and that, after W.K. uncharacteristically refused to pay her for being sick one day, she decided it was time to quit. She stated she just didn’t think he would ever do that to her, and she was not comfortable with how things had changed.

Dr. Linda Ledet, an RN and Associate Professor of Nursing at Nicholls State University, also testified at the hearing as an expert in the nurse/patient therapeutic relationship. She stated that she based her testimony on her own expertise, her review of the available literature addressing the nurse/patient professional boundaries, as well as the Board’s files and exhibits regarding the relationship between Ms. Thigpen and W.K.

114Pr. Ledet testified that the therapeutic nurse/patient relationship is “the foundation” of the nursing practice and exists for the sole purpose of meeting the patient’s needs. She testified that boundary issues or violations arise when a nurse is trying to get her own needs met as opposed to meeting the needs of a patient. She added that it is the nurse’s responsibility to maintain appropriate boundaries with a patient. She testified that in the relationship, the nurse is seen as powerful over the patient because he/she is providing care to the patient, while the patient is seen as vulnerable because he/she is the one in the need of services and care. That power imbalance imposes on the nurse, as the professional, to exercise diligence in maintaining the proper boundaries.

Specifically, with regard to the relationship at issue herein, Dr. Ledet found that not only the exchange of monies between Ms. Thigpen and W.K. to pay her bills and make financial contributions to her business was “problematic,” she also found that “Ms. Thigpen exhibited excessive self-disclosure about her personal life with [W.K.],” such that she considered the exchange of information upon which W.K. became aware of and interested in Ms. Thigpen’s business also to be a violation of personal boundaries. Not only did Dr. Ledet find improper the dual (nurse/business) relationship between Ms. Thigpen and W.K., she also testified that the literature makes abundantly clear that it is improper and a boundary violation for a nurse to accept money and/or gifts from a patient, for whatever reason. She testified that even having W.K. as a business mentor while providing nursing services was a personal boundary violation. And even with a patient’s permission, she stated it was improper for a nurse to use a patient’s credit card for her own needs. She further found it improper for Ms. Thigpen to be consuming alcoholic beverages in any amounts and at any time with W.K. She found “problematic” the secretive nature of Ms. Thigpen and W.K.’s relationship, particularly to the extent that he ceased communications and relationships with his daughter, his CPA, and his housekeeper, all of whom, prior to Ms. Thigpen’s increased involvement, had enjoyed very good and close relationships with W.K. She testified that it is very important for a 11Bnurse to foster open communication and healthy relationships between a patient and his/her family and loved ones, not to separate or alienate them in any way.

Dr. Ledet summarized that her “rule of thumb” in determining the proper boundaries in a nurse/patient relationship was unless the actions or behaviors are something that would be documented in the nurse’s medical notes regarding the patient, then they are likely boundary violations. She emphasized that it makes no difference if the patient consents, or even suggests things outside the proper boundaries, because of the power imbalance alluded to before, as well as the fact that often times these violations can cause harm to a patient without the patient’s awareness. In this particular case, she opined that W.K. had already suffered harm due to the improper relationship with Ms. Thigpen, because he was in dispute with family members and had ended former long-term relationships that had been healthy and good for him due to those persons’ concerns over his relationship with Ms. Thigpen.

W.K. also testified at the hearing. He stated that it was his idea to donate money to Ms. Thigpen for her business; and when asked why, he responded, “The Good Lord says help your neighbor. And she was struggling.” He testified that Ms. Thigpen consulted him when she began running into problems with starting her business, and that he encouraged her to “[g]o for it.” He testified that he never felt forced, coerced, or threatened to help Ms. Thigpen, and that he did so of his own free will. He stated that, at his age, he was not concerned about sharing in any profits of the business, but that Ms. Thig-pen promised him that when the business started making money, she would see to it that he shared in those profits. He claimed that he allowed the housekeeper to quit because she was coming and doing less and less, and that he fired the CPA because he felt he was being overcharged. However, he admitted that both of those people, together with his daughter, were having problems with questioning the relationship and the monies he was giving Ms. Thigpen, and he thought it was none of their business.

Finally, Ms. Thigpen testified on her own behalf. She explained the “guided care” concept of nursing care upon which her business was modeled, and testified that 116proactive monitoring and assessing the patients at home, and addressing concerns and coordinating with doctors on the front end was at the core of that business model, with the goal of catching things early. She testified that empowering the patient for self-management and educating the patient was also a large component of that model. Thus, she explained that the increased visits and her private hiring to coordinate nursing care, even while a patient is in the hospital and receiving in-hospital nursing care, was also a large component of the services provided by her company.

Again, Ms. Thigpen did not deny receiving over $22,000.00 in financial assistance from W.K., but testified she believed that “as long as you kept business separate from nursing that it was legal, that everything was appropriate.” She stated that she kept her nursing visits and her business visits to W.K. separate. She also testified that she was aware of “arguments” among W.K’s family members over the will and financial issues, which is why initially W.K., did not want his name on any of their business deals, but that after she became aware of the Board’s investigations and concerns, she drew up new business plans to document W.K.’s role in the business. However, she testified that when she became aware that those changes did not alter the Board’s position, she voluntarily ceased engaging in business with W.K. and no longer treated him as a patient.

Analysis/Application

As noted earlier, in reviewing the propriety of the trial courts judgment this court conducts its own independent review of the record and applies the standard of review provided in La. R.S. 49:964. Based on the evidence detailed above, we find ample evidence to support the Board’s findings that the totality of the facts and circumstances, surrounding the relationship between Ms. Thigpen and W.K. constitute several violations of the Nurse Practice Act and the relevant Administrative Code provisions as found by the Board and affirmed by the trial court. La. R.S. 49:964(G)(6). With the exception of one of the conditions imposed on Ms. Thigpen— addressed below — we conclude the Board’s findings do not violate constitutional or statutory provisions (La. R.S. 49:964(G)(1)); they are not in excess of the Board’s authority (La. R.S. 49:964(G)(2)); they were made upon lawful procedure (La. R.S. 49:964(G)(3)); are not affected by error of law (La. R.S. 49:964(G)(4)); and are not arbitrary, capricious, or an abuse of discretion (La. R.S. 49:964(G)(5)). Accordingly, with the exception of the amendment discussed below, the trial court’s judgment affirming the Board’s order is affirmed.

Unconstitutional Condition

In its Amended Final Order, the Board added a restraining order to Ms. Thigpen that it stated was intended to be included but was inadvertently omitted from its final order — that Ms. Thigpen “refrain from any involvement with and/or participation in any/all relationships of any kind with Patient WK from this point forward.” We find this amendment to be overreaching of the Board’s authority (La. R.S. 49:964(G)(2)), as well as unconstitutionally infringes on Ms. Thigpen’s right of freedom of association. The Board is empowered to monitor and regulate Ms. Thig-pen’s actions only in her role as an RN, and in accordance with the Nurse Practice Act. We note that the restraining order prohibiting any and all contact with W.K. is imposed on Ms. Thigpen pursuant to the final amending order during a time in which her license is suspended, and over which the Board has no authority to regulate or monitor. As such, we find it is outside the Board’s statutory authority and constitutes an unwarranted infringement oh Ms. Thigpen’s personal freedom to associate and have relationships of her choosing Accordingly, we amend the Board’s order by vacating that restraining order. If this restraining order had been added as a condition to her reinstatement of her license, then it may have passed legal muster, but it is not stated to be a condition of her reinstatement.

PENDING MOTIONS

We now address the motions pending in this appeal:

Motion by Ms. Thigpen to supplement the record with evidence later received and Motion for Leave to Present Additional Evidence

These motions were filed October 15, 2013 and December 16, 2013, respectively, and seek to introduce evidence that was received after the hearing 11sregarding W.K.’s interview by Elderly Protection Services, which Ms. Thigpen claims exonerates her on the charge the she personally used W.K.’s credit cards. The evidence was admittedly obtained after the hearing and was not included in the Board’s review. The motions also claim that a certain binder of evidence that was before the Board was not included in the appellate record. To the extent that some of the evidence Ms. Thigpen claims is missing was not introduced at the hearing and considered by the Board, the evidence is not properly before us. This court has already ruled on a prior motion by Ms. Thigpen to supplement the record with evidence not included in the appellate record, denying said motion on the basis that this court can not review evidence that is not in the appellate records nor can it receive new evidence. La. R.S. 49:964(F); See Thigpen v. Louisiana State Board of Nursing, 2013 CA 0841 (La.App. 1 Cir. 10/08/13)(unpublished). For those same reasons, the pending motion to supplement is denied.

Board’s Motion To Strike Reply Brief

The Board also filed a motion to strike the reply brief of Ms. Thigpen to the extent that it refers to evidence outside the record, notably, the evidence sought to be supplemented in her own motions. For the reasons stated above, the Board’s motion is hereby granted insofar as this court did not review those portions and arguments in brief regarding evidence not properly before it.

COSTS AND EXPERT WITNESS FEES

The Board assessed administrative costs and expert witness fees for Dr. Ledet to Ms. Thigpen. The trial court found that the assessment of those costs was proper, but remanded to the Board for a hearing, finding that the amounts were assessed in an arbitrary manner and not established with supporting evidence. In the interim, Ms. Thigpen requested and was granted a stay of the Board’s order and the trial court judgment pending the appeal of this matter. The appeal being concluded, the stay is hereby lifted, and this matter is remanded in accordance with the trial court’s judgment |19to the Board for a hearing to submit evidence and establish the appropriate assessment of costs and expert witness fees against Ms. Thigpen.

CONCLUSION

Accordingly, the judgment of the trial court, which affirmed the final amended order of the Board is hereby amended to omit the condition that Ms. Thigpen refrain from any contact, communications, or relationship with W.K. In all other respects, the judgment is affirmed. The Motions to Supplement the record are hereby denied; the motion to strike the reply brief is hereby granted to the extent that it contains argument and evidence not before the Board; and the matter is remanded to the Board for further hearings consistent herewith. Costs of this appeal are assessed to the plaintiff, Jonea Krystal Lynn Thigpen.

AMENDED, AFFIRMED AS AMENDED. REMANDED TO BOARD. MOTIONS TO SUPPLEMENT DENIED; MOTION TO STRIKE REPLY BRIEF GRANTED IN PART.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

Although the Board may have intended to issue the order requiring Ms. Thigpen “to refrain from any involvement and/or participation in any/all relationship of any kind with Patient WK” as a condition for reinstatement of her license, the restriction is not included in the conditions section of its order. Rather, in the amended final order, this restriction appears before the order suspending Ms. Thigpen’s nursing license and the listing of the fourteen conditions for reinstatement. While the Board may have authority to set certain conditions for reinstatement of a license, I agree with the majority that it cannot issue a general restraining order outside of the licensing process that restricts freedom of association. Accordingly, I concur with the result reached by the majority.

      . We note that in several of the pleadings contained in the record and also in the final order of the Board, the year of Ms. Thigpen’s licensure is incorrectly stated as 2010. However, the license itself is contained in the record confirming the correct year to be 2001.

      . Ms. Thigpen was the home health nurse assigned years ago to care for W.K.'s wife until her death approximately three years pri- or to the administrative hearing in this case.

      . The Board represented that this amending condition should have been included and was inadvertently omitted from the final order.

      . We do note that many of the items Ms. Thigpen claims are not in the appellate record, are indeed included in the record, and were reviewed by this court in deciding the issues before it.