author:
DANIEL L. DYSART, Judge.
      BELSOME, J.,

text:
    FRENCH MARKET VENDORS ASSOCIATION, INC. v. The FRENCH MARKET CORPORATION and the City of New Orleans. French Market Vendors Association, Inc. v. The French Market Corporation and the City of New Orleans.
    Nos. 2012-CA-0964, 2012-CA-1350.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 2013.
    Rehearing Denied Mar. 14, 2013.

      Michael W. Tifft, New Orleans, LA, for Plaintiff/Appellant.
    Henry P. Julien, Jr., The Kullman Firm, APLC, New Orleans, LA, for Defendant/Appellee.
    Nolan P. Lambert, Associate City Attorney, James B. Mullaly, Deputy City Attorney, Sharonda Williams, Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

|, Defendant-appellant, the French Market Vendors Association (the “Association”), appeals the trial court’s denial of a preliminary and permanent injunction and denial of a motion for summary judgment. For the reasons that follow, we affirm the trial court’s denial of the applications for preliminary and permanent injunctions and dismiss the remainder of the appeal.

FACTUAL BACKGROUND

On March 12, 2012, the Association filed a Petition against the French Market Corporation (the “FMC”) and the City of New Orleans (the “City”), which makes the following allegations. On February 28, 2012, the FMC adopted new rules and regulations “as set forth in the French Market Vendor Policy Manual as ‘updated.’ ” The new vendor policy manual (the “updated Manual”), which went into effect on March 1, 2012, amends existing rules and regulations so as to (1) increase the rental days required to maintain tenure, (2) reduce the “annual leave” |2of tenured vendors, (3) require vendors to “personally sign in to maintain tenure (when formerly, a tenant was permitted to do so), (4) dispense with “prior rental credits should a vendor be unable to appear,” and (5) -require vendors to wear identification badges. In addition, the updated Manual reserves to the FMC the right “upon adequate notice to all Vendors and a vote of the Board of Directors to review the tenure system” and the Board of Directors is to annually “issue a statement indicating if it will continue the use of the tenure system.”

According to the Petition, “Ordinance No. 4745 M.C.S.” authorized the Mayor to enter into a lease with the FMC “for a period of 40 years from January 1, 1972” and that the term under a “Lease and Franchise Agreement” ended on December 31, 2011. The Petition then alleges that “there occurred no extension or renewal of’ the “franchise and lease agreement.” At oral argument, counsel for the Association conceded that the lease had, in fact, been renewed and moved to strike these allegations.

The Association next alleges that the amendments to the original Vendor Policy Manual amount to “regulations” and in adopting these “regulations,” the FMC failed to follow the procedures set forth in the Home Rule Charter (the “Charter”) for the City of New Orleans. Likewise, the Association maintains that the effective date adopted by the FMC for the updated Manual is inconsistent with that provided by the Charter and the New Orleans City Code (the “City Code”).

IsFinally, the Association alleges that vendors/tenants of the “flea market” section of the French Market were formerly eligible under the tenure system to move to vacant spots in the “more desirable ‘Farmers Market’” and that “due to an apparently ad hoe and wholly unpromul-gated (sic) policy determination by the FMC[,] the vacant prime locations in the Farmers Market are now ássigned to tenants and vendors without regard to the existing tenure system.” The Association maintains that this practice is also in violation of the Charter and City Code and is, therefore, a “policy determination ... without legal force and effect.”

The Petition seeks injunctive relief in the form of a temporary restraining order, preliminary and permanent injunction “restraining the FMC from the enforcement and implementation” of the Manual, “as ‘updated’ on February 28, 2012, and restraining the FMC from making any changes to the current French Market vendor tenure system unless and until the same are duly adopted and promulgated in accordance with the [Charter] and City Code Section 2-1000.” The Petition further seeks a declaratory judgment that the FMC “must abide” by the Charter, Section 4-107(3) and Code Section 2-1000 “in the adoption and promulgation of its rules and regulations.” Lastly, the Petition seeks, damages, including attorney’s fees and costs.

The trial court issued a temporary restraining order (“TRO”) on March 13, 2012 and set a hearing on the preliminary injunction for March 19, 2012. In opposing the motion for preliminary injunction, the FMC took the position that its adoption and implementation of the “new Flea Market policies and procedures” are | ¿subject to neither the Charter nor the City Code. Rather, the FMC submitted, its decisions are governed by a lease agreement between the FMC and the City. The City also filed an opposition, largely on the basis that the Association could not meet the legal requirements to obtain a preliminary injunction.

The hearing on the preliminary injunction application was held and by judgment dated March 22, 2012, the trial court denied both the applications for preliminary injunction and permanent injunction. The judgment also dissolved the TRO. The Association timely filed an appeal of this judgment.

In the meantime, on March 20, 2012, the Association filed a Motion for Summary Judgment as to its petition for declaratory relief. After a hearing on June 22, 2012, the trial court denied the Motion for Summary Judgment, finding “genuine issues of material fact” and adopting the Reasons for Judgment rendered in connection with the denial of the preliminary/permanent injunctive relief. The judgment was certified as final pursuant to La. C.C. Pr. art. 1915. The Association appealed this judgment as well and the two appeals have been consolidated.

DISCUSSION

Denial of preliminary and permanent injunction

Ordinarily, a preliminary injunction hearing is held prior to the trial on a permanent injunction, as the former “is an interlocutory procedure to maintain or adjust the existing status of the litigants upon a prima facie showing that to do otherwise would result in irreparable injury, pending the decision on the permanent | (¡injunction, which is dispositive of the issues on the merits.” Fox v. Horsemen’s Benev. & Protective Ass’n, 426 So.2d 278, 279 (La.App. 4 Cir.1983) (Citations omitted); see also, Creppel v. Jefferson Parish, 352 So.2d 297 (La.App. 4 Cir.1977). However, as in the instant matter, the parties may agree to consolidate the trial on the merits of a permanent injunction with the judgment issuing a preliminary injunction. Jefferson Federation of Teachers v. Jefferson Parish School Bd., 11-836, p. 3 (La.App. 5 Cir. 4/10/12), 92 So.3d 962, 963, citing, Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220, p. 10 (La.4/14/04), 875 So.2d 22, 29. See also: Whitney Nat. Bank of New Orleans v. Poydras Center Associates, 468 So.2d 1246, 1249 (La.App. 4 Cir.1985) (“a preliminary injunction hearing cannot be converted to a permanent injunction hearing absent a stipulation of the parties to the contrary”).

While a preliminary injunction may issue on a prima facie showing, the “issuance of a permanent injunction, ..., takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence.” Elysian Fields Church of Christ v. Dillon, 08-0989, p. 8 (La.App. 4 Cir. 3/18/09), 7 So.3d 1227, 1232. (Citation omitted, emphasis in original). In Elysian Fields Church of Christ, supra, this Court discussed the mover’s burden of proof at a trial on a permanent injunction:

A hearing on a permanent injunction is “an ordinary proceeding.” Hall v. Fertility Inst. of New Orleans, 94-1135 p. 4 (La.App. 4 Cir. 12/15/94), 647 So.2d 1348, 1351. In order to obtain a permanent injunction, a party must show by a preponderance of the evidence at an eviden-tiary hearing that he is entitled to the permanent | (¡injunction. Denta-Max v. Maxicare Louiisana [sic], Inc., 95-2128 (La.App. 4 Cir. 3/14/96), 671 So.2d 995, 997. Unlike the special provision of La. C.C.P. art. 3609 providing for the court hearing a preliminary injunction “upon the vei’ified pleadings or supporting affidavits,” there is no such provision in an ordinary proceeding for a permanent injunction.

Id., pp. 6-7, 7 So.3d at 1231.

In this matter, while the parties were entitled to a full trial on the merits on the issuance of a permanent injunction, there was no live testimony at the March 19, 2012 hearing. Rather, the parties simply submitted their memorandums, with attachments and, as the trial court noted, the matter was submitted upon the pleadings and affidavits. No objections were raised at the hearing as to the attachments to the various memorandums.

In reviewing the denial of a preliminary or permanent injunction, we use the abuse of discretion standard of review. A.M.E. Disaster Recovery Services, Inc. v. City of New Orleans, 10-1755, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 454, 456. In so doing, we note that “where the trial court renders judgment on the merits on the petition for a permanent injunction ... the issue of the preliminary injunction becomes moot.” Tobin v. Jindal, 11-0838, p. 5 (La.App. 1 Cir. 2/10/12), 91 So.3d 317, 321, citing Silliman Private School Corp. v. Shareholder Group, 00-0065 (La.App. 1st Cir.2/16/01), 789 So.2d 20, 22-23, writ denied, 01-0594 (La.3/30/01), 788 So.2d 1194. We therefore consider whether the trial court abused its discretion in denying the Association’s permanent injunction.

The parties do not contest that the FMC is a public benefit corporation, as FMC admits this in its Answer. The Association maintains though, that as a public benefit corporation, the FMC is an agency of the executive branch of the government, and as such, it is required to follow certain provisions of the Charter and Ordinance No. 17,611. First, the Association maintains that Section 4-107 of the Charter applies to the FMC, which requires “each officer or department head, with the consent of the Mayor, submit to the Council for its approval any regulations affecting the public and necessary to the performance of the functions assigned to such office or department [and][n]o regulation shall become effective until approved by resolution of the Council.... ”

While the trial court issued no written reasons for judgment, at the conclusion of the March 19, 2012 hearing, the trial court concluded that Section 4-107 does not apply to the FMC. We find no error in the trial court’s conclusion. Section 4-107 falls under the Chapter 1 of the Charter, which deals with the Executive Branch. Section 4-102 lists the parties, offices, departments, boards and commissions which comprise the Executive Branch. A review of Section 4-102 reflects that the FMC is not included in that list.

Perhaps more importantly, Section 4-109 authorizes the City (through the May- or and with the approval of the Council) to “establish public benefit corporations.” The fact that the Charter has a separate section addressing public ^benefit corporations clearly suggests that these entities are not included within the Executive Branch. We therefore find no error in the trial court’s implicit finding that Section 4-107, requiring “each officer or department head” to submit for approval “any regulations affecting the public and necessary to the performance of the functions assigned to such office or department[,]” does not apply to the FMC.

We further find no merit to the Association’s argument that Mayor Mitchell J. Landrieu’s June 3, 2010 Executive Order MJL 10-05 somehow transforms the FMC into an executive branch agency for all purposes. While the executive order applies to public benefit corporations, it is clear that its purpose is limited to the manner by which “professional services” contracts are to be awarded. Section 3 of the executive order indicates that the order applies to “any department, agency, board, commission, public benefit corporation, or other entity of the Executive Branch of city government.” The FMC is specifically included as an entity which is “contingent” to the executive branch. We do not interpret these provisions to amend the Charter so as to make the FMC, or other public benefit corporation, subsumed by the executive branch. Rather, we interpret this executive order to simply guide the FMC in entering into contracts for professional services. We find the executive order to be consistent with the rights reserved for the Mayor and Council by the Charter in executing contracts on the City’s behalf. Indeed, as the Louisiana Supreme Court has recognized:

| ¡¡Under New Orleans’ Home Rule Charter, the power to make budgetary decisions is shared between the mayor and the city council. City of New Orleans, Home Rule Charter, Art. Ill, §§ 3-115 — 3-119; Art. IV, §§ 4-206(l)(f)-(g), 4-302(6). The Home Rule Charter gives the mayor and city council authority to contract for professional services through competitive selection procedures, which are fixed separately by Mayoral Executive Order for the executive branch of government and by Council Rule for contracts let by the legislative branch of city government

Civil Service Com’n of City of New Orleans v. City of New Orleans, 02-1812, p. 3 (La.9/9/03), 854 So.2d 322, 326.

Furthermore, La. Const. Art. VI, § 4 provides, in pertinent part that “[e]very home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein.” La. Const. Art. VI, § 5(C) provides that “[a] home rule charter shall be adopted, amended, or repealed when approved by a majority of the electors voting thereon at an election held for that purpose.” The Charter has not been amended to include public benefit corporations as part of the executive branch and accordingly, we again conclude that Section 4-107 does not apply to the FMC.

We now turn to the Association’s argument that Section 2-1000 requires the FMC to follow certain procedures in order to adopt “rules and regulations,” and the Association’s position that the updated Manual is a set of “rules and regulations.” While Section 2-1000 specifically applies to public benefit corporations, and the FMC is a public benefit corporation, we find no error in the trial court’s determination that Section 2-1000 does not require the FMC to follow the 11ftprocedure set forth therein in devising a manual for the internal operation of the FMC. We note that Section 2-1000 deals with “regulations,” which is defined therein, but sets forth no standards for enacting “rules ” as the Association contends. The Code expressly states that Section 2-1000 “sets forth procedures for approval of regulations affecting the public and necessary to the functions of municipal entities.” We make the distinction between “rules” and “regulations” only to emphasize that the updated Manual is analogous to a set of internal rules of operation, rather than a set of regulations, as that term is defined by Section 2-1000. Section 2-1000 was added to the Code by Ordinance No. 17,611, dated May 16, 1996. It deals with “Departmental regulations,” and provides that “ ‘municipal entity’ includes any ... department ... or other unit of city government, including but not limited to public benefit corporations, authorized by law or otherwise permitted to enact regulations.” Section 2-1000 defines a “regulation” as “each statement, guide, or requirement of conduct or action of a municipal entity, which affects the public and which has general applicability and the effect of implementing or interpreting substantive law or policy or which prescribes the procedure or practice requirements of a municipal entity....” Importantly, the definition of “regulation” expressly ex-eludes “any statement concerning only the internal management or discipline of a municipal entity” and “any intra-municipal entity memoranda.” Section 2 — 1000(a)(3)(a) and (b).

Because Section 2-1000 includes “public benefit corporations,” the Association maintains that FMC is required to abide by those sections which ^prescribe the manner in which regulations are to be proposed and enacted, but failed to do so. Section (c), for example, requires municipal entities proposing regulations to “arrange for public notice, consisting of at least one advertisement in the official public journal ... and a public hearing.” It further provides that the public notice “shall provide the time, place, and date for the public hearing; a statement describing the subjects and issues involved” and requires the municipal entity to consider “[a]ny and all comments and suggestions ... made at or as a result of the public hearing.” Section (d) through (f) then set forth further procedures for the enactment of regulations, the last of which is that “the council shall then proceed to consider the proposed regulations by means of a resolution approving or disapproving same.” Section 2 — 1000(f). In ruling against the Association on this issue, the trial court stated as follows:

The question then becomes whether the [FMC] must adhere to the requirements of the [Charter], Section 2-1000, which sets forth procedures for adopting, promulgating or amending regulations. Regulations are also defined in this section.
This Court is then guided to an ordinance adopted by the City Council on December 8, 1971, and approved by Mayor Moon Landrieu on December the 9th, 1971.
This ordinance deals specifically with the scope and authority of the [FMC]. Specifically, it provides that the lessee shall adopt rules and regulations for the operation, maintenance and governing of the French Market Properties, as they deem necessary.
Reading the ordinance and the Home Rule Charter in parametri [sic], the Court denies the plaintiffs request for the issuance of a preliminary and permanent [ ^injunction, and heretofore dissolves the TRO issued on March 13, 2012.

In reviewing the pertinent documents, we find no error in the trial court’s ruling.

By Ordinance numbered 4745 and signed by Mayor Landrieu on December 9, 1971, the FMC was granted the privilege of “operating, maintaining and improving the French Market.” This ordinance referred to the FMC as a “non-profit corporation presently engaged in the management and operation of the French Market properties.” The ordinance extended the FMC’s franchise and lease of the French Market for 40 years from January 1, 1972. It further provided that the FMC “shall adopt rules and regulations for the operation, maintenance and governing of the French Market properties, as [it] deem[s] necessary.”

As noted, the lease agreement was renewed on July 2,1992, by an Amended and Restated Lease and Franchise Agreement between the City and the FMC for an additional 60 years. The renewed lease confirmed and ratified all “previous authority, franchises and lease agreements.”

This ordinance clearly reserves to the FMC the right to operate, maintain and govern the French Market as it “deem[s] necessary.” While the record does not contain a copy of the original vendor policy manual (only the updated Manual is in the record), we do not believe the updated Manual to consist of “regulations,” as the Association maintains, that are subject to approval by the City Council under Section 2-1000. The term “regulation” is defined as a “statement” or “guide ... hswhich affects the public and which has general applicability.” We do not construe the updated Manual to be a “statement” or “guide” having general applicability or affecting the public in general. Rather, we read the updated Manual to fall within the exclusion of Section 2-1000’s definition of a “regulation,” which specifically excludes “any statement concerning only the internal management or discipline of a municipal entity.” We find the updated Manual to be a document governing the internal management of the French Market and not a “regulation” under Section 2-1000. Our finding is consistent with the original lease and franchise agreement which provides that the FMC “shall adopt rules and regulations for the operation, maintenance and governing of the French Market properties, as [it] deems necessary.” This statement is not conditioned on the FMC’s obtaining approval of the City Council in adopting rules for the governance of the French Market. We note that other provisions of the lease do require City Council approval for certain actions. Had the intent been for the FMC to obtain City Council approval before issuing internal manuals for its operation of the French Market, the foregoing documents and regulations could easily have so provided.

Thus, for the foregoing reasons, we find no error in the trial court’s denial of a preliminary and permanent injunction.

114PeniaI of motion for summary judgment seeking declaratory relief

Louisiana Code of Civil Procedure Article 2088 provides, in pertinent part, that “[t]he jurisdiction of the trial court over all matters in the case renewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal.” Thereafter, the' trial court retains jurisdiction “only over those matters not reviewable under the appeal.” Id. Article 2088 lists the types of matters over which the trial court continues to have jurisdiction after an order of appeal, none of which apply to this case.

As this Court has held, “proceedings that occurred after the judgment being appealed are not properly before the appellate court and therefore should not be considered.” Rain CII Carbon LLC v. M.H. Detrick Co., 10-0510, p. 3 (La.App. 4 Cir. 9/22/10), 49 So.3d 923, 926. See also: Fairfield Development Co. v. Jackson, 438 So.2d 664, 668 (La.App. 4 Cir.1983), (“trial court’s dismissal of ... rule to dissolve the injunction is void because this action was taken by the trial court after an appeal was granted, and after the trial court was therefore divested of its jurisdiction”).

In the instant matter, an appeal was taken of the trial court’s denial of preliminary and permanent injunctions. At that point, the trial court no longer had | ^jurisdiction over this matter, as jurisdiction was then vested in the appellate court. The trial court’s denial of the motion for summary judgment, designated as a final judgment, is therefore null and we dismiss appeal numbered 2012-CA-1350.

CONCLUSION

Based on the foregoing, we affirm the trial court’s denial of the Association’s applications for preliminary and permanent injunctions. Because appeal numbered 2012-CA-1350 is null, we dismiss that appeal.

AFFIRMED IN PART, DISMISSED IN PART

BELSOME, J., concurs in the result and assigns reasons.

BELSOME, J.,

concurs in the result and assigns reasons.

LI respectfully concur with the majority. While I agree that the trial court was divested of jurisdiction to entertain the request for declaratory relief once the first appeal was granted; I write separately to further discuss the application of La. C.C.P. art. 2088.

In its opinion, the majority states that this case is not the type of matter that warrants continued jurisdiction after appeal, as set forth in Article 2088. However, it is important to note that the list of circumstances enumerated in Article 2088 is not intended to be exclusive. See State Through Dept. of Soc. Services on Behalf of Harden v. S. Baptist Hosp., 94-2228, pp. 6 (La.App. 4 Cir. 10/12/95), 663 So.2d 443, 448, writ denied, 95-2751 (La.1/26/96), 666 So.2d 676 (citation omitted). Under the' express provisions of the article, the trial court retains jurisdiction over any matter that is “not reviewable under appeal.” Id. This language, “not reviewable under the appeal,” has generally been interpreted to give the trial court | ¡¡continuing jurisdiction over all issues that are “unaffected by the appeal,” even if the issue is not specifically listed in La. C.C.P. art. 2088. State Through Dept. of Soc. Services on Behalf of Harden, 94-2228 at pp. 6-7, 663 So.2d at 448-49 (citations omitted).

Since the request for declaratory relief involves matters reviewable on appeal, the court was divested of jurisdiction to consider and rule upon those issues. Accordingly, I concur in dismissing the second appeal and join in the majority in all other aspects of its opinion.

      . The Association describes itself as “an association of French Market vendors who have maintained seniority and tenure and assigned stalls or spaces in the French Market under FMC policies, rules and regulations and system of allocating and maintaining rental spaces and stalls.”

      . The Petition describes FMC as "a public benefit corporation which was granted a privilege, franchise and leasehold to manage the French Market through December 31, 2011, by ordinance of the New Orleans City Council.”

      . This list of amended rules and regulations appears to be illustrative only.

      . Indeed, the record contains a copy of an Amended and Restated Lease and Franchise Agreement effective as of July 2, 1992, which was attached to the FMC’s Pre-Hearing Brief for the preliminary injunction hearing. This amended lease extends the FMC's term for 60 years or through December 31, 2050.

      . Appeal numbered 2012-CA-964 concerns the trial court's denial of the preliminary and permanent injunctions, while appeal numbered 2012-CA-1350 concerns the denial of the motion for summary judgment.

      . La. C.C.Pr. art. 3601(A) provides, in pertinent part, that “[a] injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant. ...”

      . Thus, the evidence submitted at the hearing consisted of the memorandums and the attachments to the memorandums, along with certain documents proffered by the Association.

      .Prior to the hearing, the FMC and the City filed memorandums in opposition to the Association’s request for injunctive relief. The City’s opposition memorandum focused entirely on the propriety of the issuance of a preliminary injunction. The FMC's memorandum, too, discusses the elements to be met in order for a preliminary injunction to issue, although the FMC does address the Association’s arguments in support of its request for injunctive relief.

      . This executive order has as its express purpose the governing of "the procurement of professional services by contract for the Executive Branch of city government.” The term "professional services” is defined as "those that include work rendered by an independent contractor who has professed knowledge or some department of learning or science used by its practical application to the affairs of others or in the practice of an art founded on it ... [including] attorneys, doctors, dentists, veterinarians, architects, engineers, land surveyors, landscape architects, accountants, actuaries, appraisers, business consultants, investment advisors, and claims adjusters

      . The ordinance to which the trial court refers is Ordinance No. 4745, noted above and discussed herein.

      . Ordinance No. 4745 recognized that two prior ordinances had granted to the FMC the privilege of operating the French Market as early as 1934 and, in 1943, the French Market was leased to the FMC.

      . For example, the FMC must have City Council approval to "assign, pledge or mortgage the franchise, lease, subleases or any other property belonging to the [FMC].” Elsewhere, it provides that the FMC "shall accept [the French Market] and shall be entitled to operate the same as a public market and/or any other commercial venture that [the FMC] believes is in the best interest of the City ... subject to the approval of the City Council,” although the 1992 amended lease simply allows the FMC complete authority to "sublease, assign, transfer, pledge and/or hypothe-cate said lease” so long as it does not "in any way affect the right of the [City] to obtain the full and complete ownership and possession of [the French Market].”

      . Those matters include the right to: (1) Allow the taking of a deposition, as provided in Article 1433; (2) Extend the return day of the appeal, as provided in Article 2125; (3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131; (4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132; (5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126; (6) Grant an appeal to another party; (7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal; (8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code; (9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or (10) Set and tax costs and expert witness fees.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    ALLIED TAX FUND, L.L.C. v. CHIN HONG BOW & COMPANY, INC., Midstates Resources Corp., and Clyde Naquin.
    No. 2012-CA-0371.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2013.

      Scott J. Sonnier, Lemle & Kelleher, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Scott R. Wheaton, 'Jr., Kristen V. Gresham, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| iPlaintiff, Allied Tax Fund, L.L.C. (“Allied”), appeals a district court judgment upholding the validity of the November 12, 2003 tax sale by the City of New Orleans (“the City”) to Clyde Naquin of immovable property located at 1814 Magazine Street. For the reasons that follow, we reverse.

Allied acquired the property at issue at a tax sale conducted by the City on November 18, 2002, after the record owner of the property, Chin Hong Bow & Co., Inc. (“Chin Hong Bow”), failed to pay the 2001 property taxes. Following the tax sale, the City tax collector executed a tax deed on August 14, 2003, transferring to Allied all of Chin Hong Bow’s right, title and interest in the property for non-payment of 2001 property taxes. The tax deed, which specifically listed Allied’s address as P.O. Box 281863, Atlanta, GA 30384, was recorded in the Orleans Parish Conveyance Office on October 30, 2003.

In the meantime, after the 2002 property taxes were not paid on the property, the City, in August 2003, sent a notice of an upcoming tax sale to Chin Hong Bow, who, at the time, was still listed as the record property owner. The certified |2returned receipt of the notice was signed by Dixie Chin and dated August 21, 2003. The City also advertised the upcoming tax sale in the Times-Picayune newspaper on October 8, 2003, and then again on November 5, 2003. As previously mentioned, Allied’s tax deed was recorded on October 30, 2003, between the first and second published advertisements.

Shortly thereafter, Naquin purchased the property at a tax sale conducted by the City on November 12, 2003, for non-payment of 2002 property taxes. Following the tax sale, the City tax collector executed a tax deed oh April 5, 2004, transferring to Naquin all of Chin Hong Bow’s right, title and interest in the property for non-payment of 2002 property taxes. Naquin’s tax deed was recorded in the Orleans Parish Conveyance Office on April 20, 2004. Since acquiring the property, Naquin has continued paying the property taxes.

On November 13, 2007, pursuant to then La. R.S. 47:2228, Allied filed a Petition to Quiet Tax Title and Annul Tax Sale, seeking to confirm itself as owner of the property and to invalidate the November 12, 2003 tax sale to Naquin. Allied argued that it had not received proper notice of the upcoming tax sale as required under La. Const. Art. VII, § 25. Naquin answered the petition, claiming he had | svalid title to the property. He argued that Allied was not entitled to actual notice of the upcoming tax sale because Allied was not the record property owner when the City mailed the delinquency notices in August 2008. He also argued that the City’s two published notices of the upcoming tax sale in the Times-Picayune satisfied the notice requirements of La. Const. Art. VII, § 25, as Allied’s identity as the property owner was not reasonably ascertainable from the public records.

Following a hearing, the trial court rendered a judgment, declaring valid the November 12, 2003 tax sale of the property to Naquin and divesting Allied of its ownership in the same. In reasons for judgment, the trial court stated:

The Court finds that because Allied’s identity was not reasonably ascertainable from the public records at the time for giving notice, constructive notice via publication was sufficient to protect Allied’s due process Rrights and the tax sale of 1814 Magazine Street, New Orleans, LA to Clyde Naquin is valid and upheld. See Mennonite Board of Missions v. Adams, 462 U.S. 791 [103 S.Ct. 2706, 77 L.Ed.2d 180] (1983).

On appeal, Allied urges this Court employ a de novo standard of re-view on the basis that the trial court erred as a matter of law in failing to annul the tax sale due to a violation of its right to due process under the federal and state constitutions. Generally, appellate courts review both facts and law under the manifestly erroneous or clearly wrong applicable standard of review. See S.J. v. Lafayette Parish School Board, 2009-2195, p. 13 (La.7/6/10), 41 So.3d 1119, 1128. In this case, we are not presented with an incorrect application of the law. Rather, we are presented with a purely factual issue; namely, whether the trial court erred in finding, as a factual matter, that Allied’s identity as the property owner was not reasonably ascertainable from the public records at the time of giving notice and thus constructive notice via publication was sufficient to protect Allied’s due process requirements established by Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983) and its progeny. As such, we review this matter under a manifest error/clearly wrong standard.

“Under the Fourteenth Amendment to the United States Constitution and La. Const. Art. I, § 2, a person is protected against a deprivation of his life, liberty or property without ‘due process of law.’ ” Hamilton v. Royal International Petroleum Corporation, 2005-846, p. 9 (La.2/22/06), 934 So.2d 25, 32 (citation omitted). The fundamental requirement of procedural due process is notice and the opportunity to be heard at a meaningful time and in a meaningful manner. Id.

In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the U.S. Supreme Court interpreted the Due Process Clause 15with respect to the rights of a mortgagee and the notice requirements of an Indiana statute. In that case, the Mennonite Board of Missions (“Mennonite”) was the mortgagee of record of a certain parcel of property. The property owner failed to pay her taxes and the property was sold at a tax sale. Indiana law did not require that notice be given, by mail or personal service to a mortgagee and Mennonite was not given any notice of the impending tax sale. Relying on its earlier decision in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme Court held that “a mortgagee possesses a substantial property interest that is significantly affected by a tax sale” and therefore “is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Mennonite, 462 U.S. at 798, 103 S.Ct. at 2711. Regarding the publication of notice of the impending tax sale in a newspaper and the posting of notice in the county courthouse, the Court stated:

When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the inandate of Mullane.

Id. (Footnote omitted). The Court further held that:

Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable. Furthermore, a mortgagee’s [ ^knowledge of delinquency in the payment of taxes is not equivalent to notice that a tax sale is pending.

Id., 462 U.S. at 800, 103 S.Ct. at 2712 (emphasis in original).

We now consider whether the November 12, 2003 tax sale to Naquin was valid.

La. Const. Art. VII, § 25 requires that prior to conducting a tax sale of property for nonpayment of taxes, the city must give notice to the delinquent owners in the manner provided by law. At the time of the tax sale in question, former La. R.S. 47:2180 provided the manner of giving notice to delinquent |7owners regarding immovable property. “Thus, under Louisiana law, in order to give property owners reasonable notice so as not to deprive them of constitutionally protected property rights, the tax collector is required to provide ‘each taxpayer’ with written notice, sent by certified mail return receipt requested, alerting each record owner of the immovable property that the owner’s failure to pay the taxes within twenty days will result in the sale of the property.” Lewis v. Succession of Johnson, 2005-1192, p. 8 (La.4/4/06), 925 So.2d 1172, 1177. “[N]otice is a constitutional requirement, and want of notice is fatal to a tax sale.” Id., pp. 8-9, 925 So.2d at 1177 (citing Adsit v. Park, 144 La. 934, 81 So. 430 (1919)).

|sIn Lewis, supra, the Louisiana Supreme Court considered whether the practice of the St. Landry Parish Assessor’s Office, which allowed the sheriff, as tax collector, to send notice of the delinquent taxes and upcoming tax sale to only one co-owner of immovable property owned with others in division, regardless of the number of co-owners readily identifiable, violated the other co-owners’ rights under the Fourteenth Amendment. Reviewing the notice requirement established in Mennonite, supra, the Court stated:

[T]he notice of the tax delinquency by publication of an advertisement for an upcoming tax sale, alone, does not pass constitutional muster if the owners of the property can be identified or are easily discovered. A taxpayer, therefore, must also have the opportunity to receive written notice, as a minimum requirement, to ensure protection of the owner’s property rights under the Fourteenth Amendment.

Lewis, 2005-1192, p. 12, 925 So.2d at 1179 (emphasis added). The Court concluded that written notice to one co-owner cannot be imputed to other co-owners. The Court determined that while the sheriff did follow the advertising procedure set forth in La. R.S. 47:2180, the advertisement in the local newspaper was an inadequate substitute for written notice to each co-owner. The Court concluded that “the sheriff is required to take additional reasonable steps to ascertain the names and addresses of each co-owner” and emphasized that “the circumstances of the case demonstrate the reasonableness of the additional steps the tax collector might have taken.” Id. at 17, 925 So.2d at 1182. There, the Court found the circumstances were such that a simple search of the conveyance records would have revealed the addresses of the other co-owners. Because the sheriff made no attempt to ascertain the names and addresses of the other co-owners, the Court determined the other co-owners were not afforded sufficient | ^notice to protect their rights to due process and, thus, the tax sale was null and void. Id.

In the instant case, the trial court upheld the validity of the tax sale to Naquin “because Allied’s identity was not reasonably ascertainable from the public records at the time for giving notice, [thus] constructive notice via publication was sufficient to satisfy Allied’s due process rights.” After reviewing the record, we find the trial court clearly erred in its finding.

At the trial, the parties jointly stipulated that Allied purchased the property at a tax sale conducted by the City on November 18, 2002, and that the City never sent Allied written notice of the 2002 tax delinquency and the upcoming tax sale. The parties further stipulated that the City tax collector had executed Allied’s tax deed for the November 18, 2002 tax sale on August 14, 2003. Given that the City tax collector executed the tax deed with full knowledge of Allied’s identity and address at that time, even though the tax deed was not yet recorded, we find the City tax collector could have reasonably identified Allied as the owner of the property to send it timely written notice of the 2002 tax delinquency and upcoming tax sale had it taken any steps to do so. Because the record contains no evidence that the City tax collector took any steps to ascertain Allied’s identity as the correct owner of the property, we find the notification of the tax delinquency and upcoming tax sale by publication in the Times-Picayune was not sufficient to protect Allied’s due process rights under the Fourteenth Amendment. Therefore, |10we find the trial court erred in upholding the validity of the November 12, 2003 tax sale to Naquin and divesting Allied of its ownership in the property.

Accordingly, for the above reasons, we reverse the judgment of the trial court. We declare the November 12, 2003 tax sale to Clyde Naquin to be an absolute nullity. We annul the tax sale subject to La. Const. Art. VII, § 25(C) and its included provision that “[n]o judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser,” Clyde Naquin. See Lewis, 2005-1192, p. 22, 925 So.2d at 1184 n. 9.

REVERSED

      . The parties stipulated that as of the date of trial, December 13, 2011, Naquin had paid a total of $27,847.18 in property taxes.

      . La. R.S. 47:2228 provided that once three (3) years had elapsed from the date of recor-dation of the tax sale the purchaser of property at a tax sale could file suit to quiet tax title. The statute was repealed by Acts 2008, No. 819, § 2, effective January 1, 2009, and replaced with current La. R.S. 47:2266.

      . On the date of the tax sale, the provisions of La. Const. Art. VII, § 25, pertinent to this matter, provided:
      (A) Tax Sales. (1) There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector without suit, and after giving notice to the delinquent in the manner provided by law shall advertise for sale the property oil which the taxes are due. The advertisement shall be published in the official journal, as provided by law for sheriff's sales, in the manner provided for judicial sales. On the day of sale, the collector shall sell the portion of the property which the debtor points out. If the debtor does not point out sufficient property, the collector shall sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interest, and costs. The sale shall be without appraisement. A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.
      ⅝ ⅜ ⅜ ⅝ ⅝
      (B) Redemption. (1) The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.
      ⅛ ⅝ ⅜ ⅜ ⅛ ⅛
      (C) Annulment. No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of the recordation of the tax deed if no notice is given. The fact that taxes were paid on a part of the property sold prior to the sale thereof, or that a part of the property was not subject to taxation, shall not be cause for annulling the sale of any part thereof on which the taxes for which it was sold were due and unpaid. No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser; however, this shall not apply to sales annulled because the taxes were paid prior to the date of sale.
      (D) Quieting Tax Title. The manner of notice and form of proceeding to quiet tax titles shall be provided by law.

      . The Indiana statute at issue, Ind.Code § 6-1.1-24-1 et seq., required the county auditor to post notice in the county courthouse of the sale of real property for nonpayment of property taxes and to publish notice once each week for three consecutive weeks.' It also required the county to give notice by certified mail to the property owner at the owner's last known address, § 6-1.1-24-1, but at the time in question the statute did not provide for notice by mail or personal service to the mortgagee(s) of the property.

      . La. R.S. 47:2180 was repealed by Acts 2008, No. 819, § 2, effective January 1, 2009. The substance of former La. R.S. 47:2180, 2180.1 and 2181 was consolidated and reproduced, with certain modifications, and renumbered as current La. R.S. 47:2153 by Acts 2008, No. 819, § 1. At the time of the tax sale in question, La. R.S. 47:2180 provided:
      Immovable Property, Notice of Delinquency
      A. (l)(a) On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes which have been assessed to him on immovable property or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
      (b) On the second day of January of each year, or as soon thereafter as possible, in each year following the year in which the original notice of delinquency is made pursuant to Subparagraph (a) herein, the tax collector shall address to each taxpayer who has not paid the taxes which have been assessed to him on immovable property a written notice in the manner provided herein. The notice shall specify the property upon which the taxes are delinquent, the amount of taxes due, and the manner in which the property may be redeemed. The notice shall be made each year until the property, is no longer redeemable as provided in Article VII. Section 25(B) of the Constitution of Louisiana. The cost of mailing the notice shall be considered cost for purposes of redemption.
      (2) Any taxpayer may designate one additional person to be notified in the event of a delinquency. Such designated person shall receive the same notification as the delinquent taxpayer and such notice shall be made in the manner provided herein.
      B.The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer. In the event the certified notice is returned as being undeliverable by the post office, the tax collector may comply with Article 7 Section 25 of the Constitution of Louisiana and the provisions of this Section by advertising the tax debtor's property in the advertising required for unknown owners in Subsection C of this Section. After the tax collector shall have completed the service by the notices herein required, either by mail or by personal domiciliary service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in the parishes other than the parish of Orleans, in the office of the clerk of court for recording and preservation. In the parish of Orleans, such proces verbal shall be filed in the office of the state tax collector for the city of New Orleans and preserved for record. This proces verbal shall be received by the courts as evidence. The tax collector shall be entitled to collect actual mailing costs of each certified, with return receipt, notice, and mileage shall be charged for service of this notice. A like charge will be made if the property is adjudicated to the state or any subdivision thereof.
      C. The tax collector shall publish one general notice substantially in the form set forth herein, addressed to all known owners of assessed immovable property situated in his parish, and to non-resident owners of such property whose post office address is unknown, in which he shall describe the property as described in the tax roll. Such notice shall be published once a week for two weeks in a newspaper published in his parish, or if there be none published in the parish, then such notice shall be given in the manner provided by law for judicial sales. He shall pay for the publication, and shall be entitled to collect as costs therefor the pro rata share of the publication costs from each unknown owner or from the property assessed to him. The collector shall certify on his tax rolls that he has published the notices, and the certificate on either roll shall make full proof thereof until disproved in a judicial proceeding.
      D. Within thirty days after the tax sale, or as soon thereafter as possible, the tax collector shall research the records of the clerk of court for transfers on all property sold. Within thirty days of finding a transfer of any property sold at a tax sale, the tax collector shall attempt to serve the new owner with a certified notice that the property was sold and include in the notice the amount necessary to redeem the property. This notice shall also advise the owner that the property may be redeemed at any time within three years from the date recordation of the sale. This shall serve as the required notice to the record owner in Subsection A of this section.

      . A certified copy of Allied's tax deed from the November 18, 2002 tax sale is attached as Exhibit A to Allied’s Petition to Quiet Tax Title and Annul Tax Sale. Tax sales are presumed valid, and a tax deed shall be prima facie evidence of the validity of the tax sale. La. Const. Art. VII, § 25(A).


author: MAX N. TOBIAS, JR., Judge.

text:
    Thomas CLARK v. DEPARTMENT OF POLICE.
    No. 2012-CA-1274.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2013.

      Eric J. Hessler, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Gregory Brumfield, Jr., Assistant City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

kThe plaintiff/appellant, Thomas Clark (“Officer Clark”), appeals the judgment of the New Orleans Civil Service Commission (“CSC”) that affirmed the punishment of termination levied by the New Orleans Police Department (“NOPD”) in 2011.

The material facts are not in dispute. On 30 June 2009, Officer Clark was employed by the NOPD Sixth Police District Task Force. At that time, he was a ten-year veteran of the NOPD without any prior disciplinary record. Police officers assigned to the task force are employed to patrol their assigned area proactively to find and respond to criminal activity where criminal activity is generally known to occur. Officer Clark was working in a two-man police unit with his partner, Officer Henry Hollins.

Officer Clark testified that, while patrolling their assigned area, they observed a female subject standing outside an open door of a van. When the female subject saw their police unit approaching, she slammed the door of the van and walked away. Because the area was known for narcotics activity, they elected to conduct a suspicious person stop. With the stop only two blocks from the Sixth District Station, the officers elected to transport the subject to the station for further 12questioning. However, they failed to obtain permission from their ranking officer, or notify the dispatcher of the police unit’s mileage before the transport. After reaching the station, Officer Hollins informed Officer Clark that he was not going to process the female subject and instead would return her to where they originally detained her. Officer Hollins stated he was ending his shift and going home after dropping her off.

At this time, as it was nearing the end of his tour of duty, Officer Clark decided to leave work a little early. He did so, under the impression that Officer Hollins would drop the female off and the shift would be over.

Unbeknownst to Officer Clark, Officer Hollins escorted the woman out of the station and took her to a remote location, where he attempted to rape her. Officer Hollins was subsequently árrested, prosecuted, and convicted of attempted aggravated rape and second degree kidnapping. Officer Clark was also charged with second degree kidnapping, but those charges were dismissed.

An administrative investigation of Officer Clark resulted in a 20-day suspension for leaving work early and a ten-day suspension for a breach of professionalism. The appointing authority classified the sustained violation of Chapter 71.1, Prisoner Transportation, Paragraph 18 and 19, to a Category 3 | .^offense. As a Category 3 offense, the punishment of termination was authorized and Officer Clark was terminated.

Officer Clark timely appealed this action to the CSC. On 11 January 2012, a hearing was held before a CSC hearing examiner. At this hearing, both the appointing authority and the appellant were allowed to present evidence and sworn testimony.

Upon the conclusion of the hearing and consideration of the evidence, an opinion was rendered by the hearing examiner who opined that “[t]he Appointing Authority offered no testimony explaining why termination was an appropriate penalty commensurate with the violation.” In its conclusion, the hearing officer stated:

The Appointing Authority has established that the Appellant failed to provide the dispatcher with the police unit’s mileage before transporting a detained subject. The Appointing Authority also established that the Appellant failed to contact a supervisor and obtain permission before transporting the detained subject two blocks to the district station. However, the Appointing Authority has failed to establish that the penalty was commensurate with the violation. The Appointing Authority offered no evidence, or even a theory, as to how the minor violations that the investigation uncovered related to the criminal activity by Officer Hollins or the civil rights violations suffered by the female subject at his hands. The undisputed facts establish that the criminal activity did not occur during the initial stop and transport when the administrative violations occurred. The |4criminal activity occurred after the Appellant’s role in the sequence of events had ended.
The Appointing Authority has failed to establish that the Appellant violated internal rules regarding professionalism. He neither participated in nor is in any way responsible for the criminal acts of his partner that caused embarrassment to the department.
The Appointing Authority has established that the Appellant left work early without permission of a supervisor. The Appellant admitted the violation.
Therefore, based upon the foregoing:
1. Instructions from an Authoritative Source, Prisoner Transportation. The Appellant’s appeal should be GRANTED in part and DENIED in part with a reduced penalty.
2. Professionalism. The Appellant’s appeal should be GRANTED.
3. Ceasing to Perform Before End of Tour of Duty. The Appellant’s appeal should be DENIED.

The opinion was forwarded to the CSC for review and ratification. After review, the CSC denied the appeal of Officer Clark and found that termination was the appropriate penalty. This appeal followed.

The CSC has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. Art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The CSC is not charged with such discipline. The authority to modify a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, pp. 5-6, 903 So.2d at 4.

The appointing authority has the burden of proving by a preponderance of the evidence that the complained of activity or dereliction occurred, and that such ¿¡^dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against firing or other discipline without cause. La. Const. Art. X, § 12; Cornelius v. Dept. of Police, 07-1257, p. 7 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 00-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the CSC is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. Art. X, § 12; Cure, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the CSC order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the CSC is “arbitrary and capricious” if there is no rational basis for the action taken by the CSC. Id., p. 2, 964 So.2d at 1095.

Before addressing the merits of Officer Clark’s appeal, we first consider the NOPD’s argument that the appeal should be dismissed for a procedural defect. The NOPD argues that Officer Clark failed to timely assert assignments of error of the CSC’s decision in his application (ie., notice) for appeal to this court; that is, the NOPD avers that the application for appeal failed to separately and particularly set forth specific assignments of error. In the notice of appeal, Officer Clark stated that the “Civil Service Commission erred in denying Appellant’s appeal.”

Uniform Rules — Courts of Appeal, Rule 3-1.1, states in pertinent part:

1 fiEvery application for appeal from a final decision of any administrative body shall be filed with the appropriate administrative body in writing as required by law and shall include an assignment of errors, which shall set out separately and particularly each error asserted and a designation of the portions of the record desired to be incorporated into the transcript. Within 5 days after the filing of an application for appeal, any other party to the appeal may file a designation of additional portions of the record to be included for a proper review of the questions comprised within the assignment of errors. The administrative body shall transmit to a Court of Appeal, as a transcript of the record, only the portions of the record so designated. Costs for the inclusion of any unnecessary part of the record in any transcript may be assessed against the party requiring such inclusion. If by written stipulation filed with the administrative body, all parties agree on the portions of the record to be included in the transcript, only such portions shall be included. In all cases the application for appeal, the assignment of errors and the designation of the record shall be copied into the transcript. The administrative body shall certify the correctness of the transcript of the record.

In his brief, but not in his application for appeal, to this court, Officer Clark formally assigns three errors:

1. Did the appellant violate NOPD Chapter 71.1, paragraphs 18 and 19, when transporting a subject to the nearest police station?
2. Did the NOPD properly enhance and classify the allegations for which the officer was terminated or prove such enhancement was proper?
3. Was the punishment of the termination commensurate with the dereliction of duty?

Although our Uniform Rule indicates that an application (i.e., notice) of appeal of a decision to this court requires that the applicant assign errors, this rule is at odds and contrary to both statute and Louisiana Supreme Court jurisprudence.

In Rodrigue v. Rodrigue, 591 So.2d 1171 (La.1992), the Court stated:

17Plaintiff s writ application is granted. The judgment of the court of appeal holding that Local Rule 22 of the Rules of the Thirty-Second Judicial District Court is not in conflict with the provisions of Louisiana Code of Civil Procedure article 1312 is hereby reversed.... The requirements of delivery or mailing of all pleadings under Local Rule 22 constitutes service under Code of Civil Procedure article 1313. Article 1312 specifically exempts any pleading not required by law to be in writing from service. Code of Civil Procedure article 1701 provides that preliminary defaults may be obtained by oral motion in open court or by written motion. Since local rules of court cannot conflict with legislation, see Trahan v. Petroleum Cas. Co., 250 La. 949, 200 So.2d 6 (1967), Local Rule 22 of the Thirty-Second Judicial District Court is hereby declared null and void to the extent it conflicts with Code of Civil Procedure article 1312. The judgment of default entered by the trial court is hereby reinstated. [Emphasis supplied.]

We note that La. C.C.P. art. 2129 does not require an appellant in this court to assign errors in his brief, while the Uniform Rules, Courts of Appeal, Rule 2-12.4 provide otherwise. In light of Rodrigue, we cannot enforce it.

In Rocque v. Dept, of Health and Human Resources, Office of Secretary, 505 So.2d 726, 728 (La.1987), the Court held that summary dismissal of an appeal where the notice of appeal does not contain assignments of error “acts as a trap for the unwary appellant who does not learn of the insufficiency of his appeal ... until the time for remedying any deficiencies has already elapsed,” and is thus [ ^unreasonable and unduly burdensome on appellants. See La. Const. Art. X, § 8. Accordingly, we hold that an appellant in a civil service matter need not assign specific error(s) committed by the CSC in his motion, application, or notice of appeal to this court.

Because the majority of the facts are not disputed, we do not summarize the brief testimony given at the hearing. However, one point needs clarification: whether or not the victim was arrested before being brought to the station on the evening in question.

Officer Clark argues in his brief that the victim was not arrested and that the record is devoid of any reference to any violation for which she could have been arrested. We agree with the latter assertion. However, at the hearing, he testified that the victim was arrested that night, although Officer Clark was never asked why. Therefore, we find that Officer Clark has admitted to the arrest and cannot now argue otherwise.

After reviewing the record, we fail to find any evidence indicating that Officer Clark’s administrative violations bore a real and substantial relationship to the efficient operation of the NOPD. Officer Clark cannot be penalized for the criminal actions of his former partner. As summarized by the hearing examiner:

Sgt. Kevin Stamp investigated the incident and testified that internal rules require police officers to contact their supervisor and obtain permission before transporting an arrested subject to a police station. He testified that the Appellant and his partner failed to contact a supervisor. Sgt. Stamp also found that the Appellant and his partner failed to contact the dispatcher and report their mileage before transport. Sgt. Stamp testified that the requirement allows the Appointing | gAuthority to monitor a police officer’s efficient use of time when transporting a detained subject. He offered no testimony linking either rule violation with Officer Hollins’ criminal activity.
In fact, Sgt. Stamp offered no testimony regarding the actual stop or the transport of the female subject to the district station. There is, therefore, no evidence to support a claim that the stop and transport was unlawful. It follows that the only misconduct of which the Appellant stands accused are the two minor violations described above. It should be further noted that Sgt. Stamp offered no testimony drawing into question the Appellant’s acceptance of his partner’s decision not to process the female subject and to return her to where she was first detained. The disciplinary letter makes no mention of the Appellant’s acquiescence in or awareness of his partner’s intentions and contains no determination that the Appellant was in any way responsible for his partner’s criminal acts.
Sgt. Stamp’s supervisor, Lt. Errol Foy, testified that he reviewed and agreed with Sgt. Stamp’s investigative report. He testified that a charge of Professionalism was sustained because Officer Hollins’ criminal activity caused negative publicity and reflected badly on the New Orleans Police Department. The Appointing Authority offered no testimony explaining why termination was an appropriate penalty and commensurate with the violation.
The Appellant testified that, because of the close proximity of the arrest to the station, he and his partner chose not to seek permission from a supervisor to transport the female subject or to notify the dispatcher of their mileage before driving two blocks to the district station.

Clearly, the NOPD is holding Officer Clark responsible for the criminal actions of his former partner. In its brief, the NOPD states:

Specifically, the Appellant did not follow protocol in transporting an arrested citizen to the police station. This directly led to the act of brutal crimes, which could have easily been avoided. Appellant’s violation of department rules served to undermine the image and efficiency of the NOPD.

This is bunkum and if embraced by this court would make the NOPD (the appointing authority) and us both wrong. Even if Officer Clark had contacted his |,(¡supervisor before transporting the victim and called dispatch with the mileage information, Officer Hollins could still commit the criminal acts he committed. No correlation exists between Officer Clark’s violation of protocol and the unfortunate acts that occurred later in the evening. No action undertaken by Officer Clark undermined the image and efficiency of the NOPD. The NOPD has failed to carry its burden of proof and the CSC erred in affirming the discipline imposed, that being termination. We further find that the CSC’s penalty of termination was arbitrary and capricious; that the punishment was not commensurate with the infraction.

We must now determine an appropriate penalty for Officer Clark’s administrative violations. In order to do so, we are directed to Chapter 26.2 of the NOPD’s Operations Manual, entitled, “Disciplinary Hearings/Penalties.” The penalty schedule is attached to that document as “Appendix C,” (hereinafter referred to as the “schedule”). The schedule describes the elements of a Category 1 offense, stating:

Category 1 (Minor):

a. Does not affect the rights or liberties of another;
b. Involves only an administrative investigation or violation; and/or
c. Does not affect job performance.

Based on our review of the record, we find that Officer Clark’s violation of paragraphs 18 and 19 falls within Category 1.

Paragraph 4:(4c), addresses certain enumerated acts and omissions that are considered to be “neglect of duty.” This includes “[flailing to comply with instructions, oral or written, from any authoritative source.” Breach of a Category 1, first offense, subjects the officer to a range of a reprimand to a five-day suspension. Here, Officer Clark committed two violations. Therefore, we impose |na five-day suspension for each charge, for a total for all violations (see footnote 1, supra) of a thirty-day suspension for the violations committed by Officer Clark in this matter. Finally, we reverse the ten-day suspension for professionalism, as we find that Officer Clark did not violate that section of the Service Manual.

Therefore, the decision of the CSC is reversed in part and the NOPD is ordered to reinstate Thomas Clark as a member of the department with back pay and all emoluments of office as of 29 June 2011, subject to the total imposed 30-day suspension levied herein.

AFFIRMED IN PART, REVERSED IN PART; RENDERED.

      . Officer Clark ended his shift thirty minutes early without obtaining the permission of his supervisor. He admits that he violated this rule and does not contest his 20-day suspension for that violation.

      . The paragraph on professionalism provides that:
      Employees shall conduct themselves in a professional manner with the utmost concern for the dignity of the individual with whom they are interacting. Employees shall not unnecessarily inconvenience or demean any individual.

      . Paragraph 18 requires that the arresting/transporting officers request their supervisor's permission prior to transporting any arrested subject to a district .station. Paragraph 19 requires the officers to inform the dispatcher of the beginning mileage and the intended destination of the transport.

      .Chapter 26.2, "Disciplinary Hearings/Penalties” describes the elements of a Category 3 offense. It states:
      Category 3 (Major):
      a. May affect the rights or liberties of another;
      b. May affect job performance; and/or
      c. Involves a serious administrative or criminal violation.

      . In pertinent part, Rule 2-12.4 states:
      The brief of the appellant or relator shall set forth the jurisdiction of the court, a concise statement of the case, the ruling or action of the trial court thereon, a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion stating the precise relief sought. [Emphasis supplied.]

        See also Uniform RulesCourts of Appeal, Rule 3-1.5.

      . While one might argue that a five-day suspension per charge is harsh, we recognize that:
      The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Indeed, the Commission should give heightened regard to the appointing authorities that serve as special guardians of the public's safety and operate as quasi-military institutions where strict discipline is imperative.

        Stevens v. Department of Police, 00-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627 [citation omitted.]


text:
    SOUTH PETERS PLAZA, INC. v. P.J., INC., William Colacurcio Jr., Succession of William Colacurcio III, William Colacurcio IV, Kristi Rae Colacurcio, and Jimmette C. Colacurcio.
    No. 2012-CA-0370.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2013.

      Leonard L. Levenson, Christian W. Helmke, Donna R. Barrios, New Orleans, LA, for Plaintiff/Appellant.
    Susan J. Burkenstock, Gary J. Elkins, Thomas M. Beh, Elkins, PLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| jPIaintiff, South Peters Plaza, Inc. (“SPPI”), appeals two summary judgments in favor of defendant, P.J. Inc. For reasons that follow, we reverse both judgments and remand this matter to the trial court for further proceedings.

This case stems from a commercial property lease signed on May 2, 2000. The record contains two differing copies of the lease, both signed on May 2, 2000. One copy includes a handwritten provision regarding the lessee’s right of refusal to purchase the property, and the other copy does not include this provision. According to the lease, P.J., Inc. leased to SPPI the property located at 941 Decatur. Street in New Orleans, Louisiana. The initial term of the lease was for five years, beginning on May 1, 2000. Included in the lease is a provision stating as follows:

Lessee is granted the option to. renew this lease for an additional five year period. This option must be executed at lease ninety (90) days prior to the expiration of the primary term of this lease. Lessee has the 1st right of refusal for the option of additional five (5) years.

Prior to the expiration of the initial lease term at the end of April 2005, the lessee, SPPI, exercised its option to renew the lease for an additional five years, or until the end of April 2010. While the parties agree that the lease allowed SPPI the |2option to renew the lease for an additional five year term following the initial five year term, the parties dispute whether or not the above-quoted provision in the lease allowed SPPI the option to renew the lease for a second five year extension, after the first extension expired at the end of April 2010.

On April 28, 2010, prior to the expiration of the five year extension of the lease that commenced in May 2005, SPPI filed a petition for damages against P.J., Inc. and others allegedly authorized to act on behalf of that corporation, including William Co-lacurcio, Jr., the Succession of William Co-lacurcio, III, William Colacurcio, IV, Kristi Rae Colacurcio and Jimmette C. Colacur-cio. The petition also asked for “recognition of right of first refusal, for enforcement of lease rights and options and for other legal and equitable relief, including concursus and the right to make payment to the registry of the court.” In the petition, SPPI alleges that it gave P.J., Inc., and its affiliated members, timely and adequate notice of its desire to exercise the five year option period from May 1, 2010 through April 30, 2015. Because of its allegation that title to the property at issue is contested and is the subject of litigation in succession proceedings involving the defendants, SPPI requested a court order allowing it to deposit its monthly lease payment of $9,500.00, due on May 1, 2010, into the registry of the court. The trial court issued an order on April 28, 2010 allowing SPPI to deposit monthly lease payments of $9,500.00 into the registry of the court starting with the payment due On May 1, 2010 and continuing thereafter until further orders of the court.

|.sOn June 10, 2010, P.J. Inc. and the other defendants named in SPPI’s petition answered the petition and asserted a re-conventional demand against SPPI, which included, among other items, a request for the trial court to issue an Order of Possession, ordering SPPI to immediately surrender possession of the property at issue to P.J., Inc. On September 8, 2010, P.J. Inc. and SPPI entered into a consent judgment in which the parties agreed that SPPI was to immediately surrender and deliver possession of the property at issue to P.J., Inc., but that SPPI and the Succession defendants were reserving “all other claims, demands, defenses, disputes and/or issues asserted in either the SPPI Petition or the Reconventional Demand other than those issues pertaining to the Eviction Rule, specifically including but not limited to any and all claims for damages for breach of the Lease and/or past due rent.”

On November 22, 2010, P.J., Inc. filed a motion for summary judgment against SPPI, requesting the following relief:

1) Five months of rent at $9,500.00 per month, for a total of $47,500.00;
2) Four months and eight days of “hold over rent” at $47,500.00 per month or $1,583.33' per day (less a credit for the $9,500.00 in the registry of the court), for a total of $193,166.64;
3) Attorney’s fees of 10% of the asserted claim, for a total of $25,016.66; and
4) An order disbursing to P.J., Inc. the $9,500.00 previously deposited into the registry of the court.

In its memorandum in support of the motion for summary judgment, P.J., Inc. argued it was entitled to summary judgment because there is no genuine issue of material fact to dispute that SPPI failed to pay rent for a period of five months |4during the existence of the lease, and that SPPI maintained possession of the property without P.J., Inc.’s consent and after termination of the lease from May 1, 2010 until September 8, 2010. Because of these allegedly undisputed facts, P.J., Inc. argued that the terms of the lease between the parties entitles it to payment by SPPI of back rent, “hold over rent” and attorney’s fees as set forth in its motion for summary judgment. SPPI filed a memorandum in opposition to P.J., Inc.’s motion, arguing that summary judgment is not appropriate in this matter because genuine issues of material fact still exist regarding several matters, including the validity of the lease at issue, P.J., Inc.’s alleged violation of certain terms of the lease, and allegedly ambiguous and seemingly contradictory provisions of the lease.

Following a hearing, the trial court rendered judgment on February 24, 2011, granting in part and denying in part P.J., Inc.’s motion for summary judgment. The trial court granted the motion in part as to P.J., Inc.’s claim for “hold over rent” and attorney’s fees, ordering SPPI to pay to P.J., Inc. $202,666.64, representing “hold over rent” for the period of May 1, 2010 through September 8, 2010, $20,266.66, representing 10% of the amount awarded as attorney’s fees, and judicial interest on the amounts awarded for “hold over rent” from the date of judicial demand until paid and upon the attorney’s fee award from the date of judgment until paid. The trial court further ordered that upon this judgment becoming final and non-appealable by suspensive appeal, the Clerk of Court [of Civil District Court for Orleans Parish] is directed to release and pay to P.J., Inc. the amount of $9,500.00, plus any accrued interest thereon, previously deposited | ñinto the registry of the court by SPPI, with such amount to be credited against the amounts awarded above. The trial court denied the motion for summary judgment in all other respects. SPPI filed a motion for new trial from the trial court’s partial granting of P.J., Inc.’s motion for summary judgment. The trial court denied the motion for new trial.

SPPI filed a writ application in this Court, seeking review of the trial court’s February 24, 2011 judgment, granting in part P.J., Inc.’s motion for summary judgment and awarding “hold over rent” and attorney’s fees to P.J., Inc. On July 8, 2011, this Court denied SPPI’s writ application, stating in part: “Pursuant to our de novo review, we affirm the judgment of the district court granting in part the motion for summary judgment of the Respondent, P.J., Inc.”

On July 28, 2011, P.J., Inc. filed a renewed motion for summary judgment, arguing that there is no genuine issue of material fact in dispute and that it is entitled to entry of summary judgment against SPPI awarding it the amount of $52,250, representing five months of rent at $9,500.00, or $47,500.00, and attorney’s fees of 10% of the asserted claim, or $4,750.00. SPPI filed an opposition to the renewed motion for summary judgment, arguing that P.J., Inc. did not present any evidence to establish that SPPI failed to tender the rental payments under the lease and also failed to establish that it fulfilled the lease requirements to provide SPPI with a five day written, notice and opportunity to cure for its alleged failure to pay the rent. With regard to the latter argument, SPPI refers to the following provision of the lease:

IfiShould the Lessee at any time violate any of the conditions of this lease, or discontinue the use of premises for the purpose for which they are rented, or fail to pay the rent, water bill, or other expenses assumed under this lease, punctually at maturity, as stipulated; or upon the adjudication of Lessee in bankruptcy, the appointment of a receiver for Lessee, or the filing of a bankruptcy, receivership or respite petition by the Lessee; or upon Lessor’s suspension, failure or insolvency; and should such violation continue for a period of five (5) days after written notice has been given Lessee, then, at the option of the Lessor, the rent for the whole unexpired term of this lease shall at once become due and exigible; and Lessor shall have the further option to at once demand the entire rent for the whole term, or to immediately cancel this lease, or to proceed for past due installments only, reserving its right to later proceed for the remaining installments, all without putting Lessee in default, Lessee to remain responsible for all damages or losses suffered by Lessor, Lessee hereby assenting thereto and expressly waiving the legal notices to vacate the premises. Should an Agent or Attorney be employed to give special attention to the enforcement or protection of any claim of Lessor arising from this lease, Lessee shall pay, as fees and compensation to such Agent or Attorney an additional sum of ten per cent of the amount of such claim, the minimum fee, however, to be $25.00, or if the claim be not for money, then such sum as will constitute a reasonable fee, together with all costs, charges and expenses.

On October 25, 2011, the trial court rendered judgment granting P.J., Inc.’s renewed motion for summary judgment. The court cast SPPI in judgment for $52,250, comprised of five months of rent at $9,500.00 per month, totaling $47,500.00, and attorney’s fees of 10% of $47,500.00, totaling $4,750, plus interest from the date of judicial demand until paid and all costs of these proceedings. SPPI now appeals the trial court’s judgments of February 24, 2011 and October 25, 2011.

|7On appeal, SPPI argues that the trial court erred in granting partial summary judgment to P.J., Inc. in its February 24, 2011 judgment, and in granting summary judgment to P.J., Inc. in its October 25, 2011 judgment. SPPI sets forth seven assignments of error, listed as follows:

1) The district court erred in granting summary judgment as P.J., Inc. failed to provide SPPI with the required written notice and opportunity to cure each and every alleged breach of the lease agreement by SPPI as required and mandated by the lease agreement;
2) The district court erred in calculating the amount of “hold over rent” to be awarded to P.J., Inc.;
3) The district court erred in granting summary judgment as P.J., Inc. breached the right of first refusal to purchase the property contained in the lease that inured to the benefit of SPPI;
4) The district court erred in granting summary judgment because the lease agreement was invalid because it was executed by an individual who had no authority to bind P.J., Inc.;
5) The district court erred in awarding attorney’s fees to P.J., Inc. because P.J., Inc. failed to present sufficient evidence, as required by the Louisiana Code of Civil Procedure and/or Rule 1.5 of the Rules of Professional Conduct, to establish its entitlement to the amount of attorney’s fees it claimed in its motion for summary judgment;
6) The district court erred in granting summary judgment because the lease contains a second five year option that must be fully litigated and decided before any amount of “hold over rent” can be awarded or determined; and
7) The district court erred in granting summary judgment and awarding “hold over rent” to P.J., Inc. as the amount of “hold over rent” in the lease violates Louisiana law.

An appellate court reviews summary judgments de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if |sany, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). As to the burden of proof on a motion for summary judgment, La. C.C.P. art. 966(C)(2), provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

SPPI pled in its petition its entitlement to a second five year option to renew the lease, and reserved its rights, in the consent judgment, to challenge claims for damages against it for breach of the lease and/or past due rent. Because we find the section of the lease containing the alleged second five year option to be ambiguous, we conclude that summary judgment was not appropriate in this case. See Gertler v. City of New Orleans, 03-2131, p. 6 (La.App. 4 Cir. 9/1/04), 881 So.2d 792, 796; Canal 66 P’ship v. Reynoir, 02-0355, pp. 9-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 52, 55. Furthermore, as for the issue of back rent, we find that genuine issues of fact remain regarding the lease provision requiring P.J. Inc. to give SPPI five day written notice and opportunity to cure any lease violations.

| nWith regard to this Court’s writ disposition affirming the trial court’s February 24, 2011 granting in part of P.J., Inc.’s motion for summary judgment, we note that the law of the case doctrine requires that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. See New Orleans Redevelopment Authority v. Lucas, 02-2344, p. 14 (La.App. 4 Cir. 8/25/04), 881 So.2d 1246, 1254, citing Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973). However, reconsideration is allowed in the case of palpable former error. Id. In this case, given our finding of ambiguity in the lease provision regarding the second five year option alleged by SPPI, we find palpable error in the former decision of this court affirming the February 24, 2011 trial court judgment granting in part P.J., Inc.’s motion for summary judgment.

Because we have determined that summary judgment was inappropriate in this case in that genuine issues of material fact remain, _we need not address the remaining arguments raised by SPPI in its appeal brief. Accordingly, we reverse the summary judgments of February 24, 2011 and October 25, 2011, and remand this matter for further proceedings.

REVERSED AND REMANDED


author: JAMES F. McKAY III, Judge.

text:
    Melvin BURMASTER, et al. v. PLAQUEMINES PARISH GOVERNMENT, et al.
    No. 2012-CA-1091.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2013.

      Melvin J. Burmaster, Elizabeth W. Def-ley, Mark M. Bonura, New Orleans, LA, Eric J. O’Bell, Gauthier Houghtaling & Williams, L.L.P., Metairie, LA, John H. Smith, Smith Shanklin, Baton Rouge, LA, for Plaintiff/Appellant and the Proposed Class.
    Brett P. Fenasci, Michael A. McGlone, Kean Miller Hawthorne D’Armond McCowan & Jarman, LLC, New Orleans, LA, for Defendant/Appellee, Liberty Mutual Insurance Company and Liberty International Underwriters, Inc.
    Mark L. Clark, Matthew L. Stedman, Brown Sims, P.C., New Orleans, LA, for Defendant/Appellee, Indemnity Insurance Company of North America.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Judge.

| )Following Hurricane Katrina, Melvin Burmaster filed a lawsuit against the Plaquemines Parish Government (PPG), seeking to recover damages caused by flooding on the east bank of Plaquemines Parish during and after the hurricane. Mr. Burmaster alleged that the flooding occurred because PPG failed to properly maintain hurricane protection levees. Mr. Burmaster later amended his lawsuit to seek class certification for all individuals who experienced similar damages. However, the matter has not been certified as a class action lawsuit.

At the time of Hurricane Katrina, PPG maintained a number of insurance policies. These included primary policies for risks such as workers’ compensation and auto liability, as well as policies for excess and umbrella coverage. However, for certain risks, PPG maintained a self-insured retention of $1,000,000.00.

When Mr. Burmaster sued PPG, he also sued several of PPG’s insurers under the Louisiana direct action statute. These included National Union Fire Insurance Company of Louisiana (hereinafter National Union), PPG’s umbrella/bumbershoot carrier, and Liberty International Underwriters, Inc. and ^Indemnity Insurance Company of North America (hereinafter Liberty), PPG’s excess marine insurance policy underwriters.

Both Mr. Burmaster and National Union moved for summary judgment. The district, court held that coverage will exist under the policy issued by National Union if Mr. Burmaster prevails at trial. These summary judgments are not at issue in this appeal.

The policy with Liberty covered several vessels owned by PPG and incorporated standard clauses promulgated by the American Institute of Marine Underwriters. The policy that PPG purchased from Liberty covered only the following three risks: 1) excess protection and indemnity, 2) excess collision liability, and 3) excess vessel pollution liability. These marine risks must arise out of PPG’s operation, ownership, or use of the “scheduled” vessels for coverage to attach. Therefore, Liberty also moved for summary judgment on the grounds that its policy of excess marine insurance did not cover flooding on the east bank of Plaquemines Parish because it was not a maritime event and it did not involve vessels. The district court granted Liberty’s motion for summary judgment and dismissed Liberty from the case. It is from this judgment that Mr. Burmaster now appeals.

On appeal, Mr. Burmaster raises the following assignments of error: 1) the trial court erred in granting summary judgment to Liberty given the existence of substantive material facts in dispute; 2) Liberty elevates form over substance by contending the word “Marine” in the policy title modifies the substantive | ^provisions of the policy and PPG’s underlying protection and indemnity insurance which expressly covers non-“Marine” claims of plaintiff and the class; 3) the trial court erred in granting summary judgment to Liberty as the policy expressly covered “all liability, loss, damage or expense insured under the protection and indemnity policies described in the schedule of underlying insurances”; 4) the trial court erred in allowing Liberty to reform the policy after claim to exclude coverage and create illusory coverage, both against Louisiana law; and 5) the trial court erred because no less than eight genuine issues of material fact exist to be decided at trial on the merits. In essence, the only issue before this Court is whether summary judgment was properly granted.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof remains with the mover. Board of Assessors of City of New Orleans v. City of New Orleans, 2002-0691, p. 8 (La.App. 4 Cm. 9/25/02), 829 So.2d 501, 506. However, if the mover will not bear the burden of proof at |4trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require the mover to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. at pp. 8-9, 829 So.2d at 506. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy their evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. at p. 9, 829 So.2d at 506; La. C.C.P. art. 966(C)(2).

A fact is material if it is essential to plaintiffs cause of action under the applicable theory of recovery and if without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992).

The issue before this Court is whether the policy of marine insurance issued by Liberty to PPG provided coverage for the damages Mr. Burmaster complains of in his lawsuit. An insurance policy, like any other contract “should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or restrict its provisions beyond what is reasonably contemplated by unambiguous terms or so as to achieve an absurd conclusion.” See Pender v. Elmore, 37-690 (La.App. 2 Cir. 9/24/03), 855 So.2d 930, 935. |,Instead, words or phrases used in an insurance policy should be construed using their plain, ordinary, and generally prevailing meaning, unless a technical matter is involved, in which case the words and phrases must be given their technical meaning. Id.

It is well settled that protection and indemnity (P & I) insurance “covers ship owners and charterers against liabilities arising out of the operation of vessels for loss of life to any person, illness or injury to passengers and crew, damage to cargo while loading, carrying or unloading cargo, damage to piers and docks, removal of wreckage, the cost of major oil spills, and other misfortunes that may befall vessels and companies engaged in maritime commerce.” Sonito Shipping Co., Ltd. v. Sun United Maritime Ltd., 478 F.Supp.2d 532, 537 (S.D.N.Y.2007); see also Gilmore & Black, The Law of Admiralty, 2d ed., p. 59 (1975).

The state and federal courts in Louisiana have uniformly recognized that P & I insurance is distinctly marine and is not the equivalent of general liability insurance. The United States Fifth Circuit Court of Appeals noted that P & I insurance “insures only against liability resulting from vessel ownership.” Wiley v. Offshore Painting Contractors, Inc., 716 F.2d 256, 257 (5th Cir.1983). The Louisiana Supreme Court has further noted that “[protection and indemnity insurance is consistently treated as marine insurance within the industry.” Backhus v. Transit Cas. Co., 549 So.2d 283, 289 (La.1989). Stated another way, the Louisiana Fifth Circuit opined that “it is well settled in our jurisprudence that | fiprotection and indemnity insurance is ocean marine insurance.” Nicholas v. New England Int’l Sur. of America, Inc., 613 So.2d 1137, 1140 (La.App. 5 Cir.1993).

In the instant case, the damages sought by Mr. Burmaster were allegedly caused by PPG’s failure to properly maintain hurricane protection levees. This is not a risk covered by a marine insurance policy such as the one issued by Liberty to PPG. Accordingly, summary judgment was properly granted in this case.

For the above and foregoing reasons, we affirm the trial court’s granting of Liberty’s motion for summary judgment.

AFFIRMED