author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Carl JORDAN.
    No. 2012-KA-0930.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for Ap-pellanVState of Louisiana.
    James Harper, Orleans Public Defenders, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

|, The State of Louisiana appeals the trial court’s February 9, 2012 judgment granting the motion to quash the bill of information of the defendant, Carl Jordan. The State also filed a motion in this Court, seeking to supplement the appeal record with an October 2008 return on service for the defendant. For reasons that follow, we affirm the judgment granting the motion to quash. We deny the motion to supplement the record because the document contained in the supplement was not presented to the trial court or subjected to adversarial challenge. See State v. McQuirter, 12-486, p. 1 (La.App. 4 Cir. 1/23/13), 108 So.3d 370, 371.

On May 21, 2008, the defendant was arrested on charges of possession of heroin with intent to distribute and possession of a firearm by a convicted felon. The defendant was released several days later after posting bond. In July 2008, while he was out on bond, but prior to the filing of the bill of information in this case, the defendant was arrested on additional charges in Jefferson Parish, and was taken into custody. He was charged by bill of information on the Orleans Parish charges on October 1, 2008. After the defendant failed to appear at his arraignment on October 9, 2008, the trial court issued an alias capias for his arrest with no bond, and set a bond forfeiture hearing for October 31, 2008. When 1 defendant failed to appear for the bond forfeiture hearing, the court issued another alias capias for his arrest with no bond, and continued the matter without date. At another hearing on August 30, 2010, at which defendant did not appear, the trial court reset the bond forfeiture hearing for September 13, 2010. At that hearing, defendant again failed to appear, and the court granted the State’s request for bond forfeiture. Defendant’s counsel subsequently filed a motion to set aside the judgment of bond forfeiture and petition for nullity of judgment, which were both granted by the trial court on April 28, 2011.

On August 18, 2011, the defendant filed a motion to quash the bill of information, arguing that the State failed to prosecute the charges against him within the applicable time limitation set forth in La.C.Cr.P. article 578. At a hearing held on January 12, 2012, the trial court ordered the State to respond to the motion to quash by January 26, 2012. The State did not file a response as of the February 9, 2012 hearing on the motion to quash.

At the hearing on the motion to quash, defense counsel stated that defendant was arrested in May 2008 and released on bond. Charges were filed in the instant case in Orleans Parish on October 1, 2008. In July 2008, while the defendant was out on bond but before he was charged by bill of information, he was arrested in Jefferson Parish, and at the time of the hearing, had been in continuous custody of law enforcement authorities since his Jefferson Parish arrest. The motion to quash was based on the fact that defendant was not brought to trial within the time period allowed under La.C.Cr.P. article 578.

|sThe State introduced no evidence at the motion to quash hearing, but argued that the defendant received notice of the charges against him and, therefore, prescription was interrupted. The State acknowledged that it did not file a written response to the motion to quash, but asked for an extension of time to file a response. The trial court denied that request, and issued its ruling granting the motion to quash the bill of information. The State now appeals that ruling.

On appeal, the State argues that the trial court abused its discretion by granting the defendant’s motion to quash the bill of information. The State correctly states that a trial court’s ruling on a motion to quash is reviewed under an abuse of discretion standard. See State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206. While acknowledging that La.C.Cr.P. article 578(A)(2) provides that no trial shall be commenced in a non-capital felony case “after two years from the date of the institution of the prosecution,” the State, citing La.C.Cr.P. article 579(A)(3), argues that the prescriptive period in this case was interrupted because the defendant allegedly received notice of his arraignment date, but failed to appear for that proceeding.

La.C.Cr.P. article 579 states:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
14(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

Because the defendant in this case was released on bond following his arrest, the State cites La.C.Cr.P. article 344, which is entitled “Right to Notice of Time and Place of Defendant’s Required Appearance.” La.C.Cr.P. article 344(D)(1) states:

D. Notice required pursuant to the provisions of this Article to the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety shall be made to the address provided pursuant to Article 322. Notice may be:
(1) Delivered by an officer designated by the court at least two days prior to the appearance date.

La.C.Cr.P. article 322(B) states that the address provided by the defendant when signing his bail bond “shall be conclusively presumed to continue for all proceedings on the bond until the party providing the address changes it by filing a written declaration in the proceeding for which the bond was filed.”

The State’s argument that the prescriptive period of La.C.Cr.P. article 578 was interrupted is based solely on an October 2008 return on service for defendant showing that notice of his arraignment date was left on his door at the address he listed on his bond. However, the State did not attach this document to a response to the defendant’s motion to quash (the State did not file any written response) or introduce the return on service at the motion to quash hearing. As stated above, we must deny the State’s motion to supplement the record with this document because it was not presented to the trial court. See State v. McQuirter, 12-486, p. 1 (La.App. 4 Cir. 1/23/13), 108 So.3d 370, 371. See also State v. Johnson, 09-259, p. 10 (La.App. 4 Cir. 9/16/09), 22 So.3d 205, 212, (“an appellate court may not consider evidence which is outside the record.”)

Our review of the record shows that the State did not carry its burden of proving an interruption to the time limitation of La. C.Cr.P. article 578 that is applicable in this case. Because the State did not commence trial within two years of the institution of prosecution, and did not prove an interruption of the prescriptive period, the trial court did not abuse its discretion in granting the defendant’s motion to quash the bill of information.

For the reasons stated above, the trial court judgment granting the defendant’s motion to quash the bill of information is affirmed. The State’s motion to supplement the record is denied.

JUDGMENT AFFIRMED; MOTION TO SUPPLEMENT RECORD DENIED

      . Defendant filed a writ application in this Court requesting a writ of mandamus be issued ordering the trial court to act on his motion to quash. On November 29, 2011, this Court, in 2011-K-1626, granted defendant’s writ for the purpose of transferring the motion to quash to the trial court for consideration at a motion hearing scheduled for January 12, 2012.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Marsha O’NEAL v. DEPARTMENT OF HEALTH AND HOSPITALS, OFFICE OF PUBLIC HEALTH.
    No. 2012 CA 1922.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.

      Belhia V. Martin, New Orleans, LA, for Plaintiff-Appellant Marsha O’Neal.
    Gina M. Recasner, New Orleans, LA, for Defendant-Appellee Department of Health and Hospitals, Office of Public Health.
    Adrienne T. Bordelon, Baton Rouge, LA, for Shannon S. Templet Director, Department of State Civil Service.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

LMarsha O’Neal, a former registered nurse with the Department of Health and Hospitals, Office of Public Health, appeals a State Civil Service Commission decision, denying her appeal and rendering final a decision by the Referee, finding her job termination was supported by evidence of disruptive behavior in the workplace and insubordination (leaving work without authorization). After a thorough review of the record, as well as the arguments raised by the appellant, we affirm.

The Assignments of Error raised by the appellant are, as follows.

1. The trial court erred when it made a pretrial ruling that the Appellant did not timely appeal the State layoff and reallocation plan where the record shows that she did.
2. The trial court erred in not finding that the Appellant’s supervisor Avis Gray violated Civil Service Rule 10.6(3) where the record shows that she gave Appellant a “poor” performance rating but failed to supply any documentation even after the Appellant requested it.
3. The trial court erred when it did not consider any of the testimony of the Appellant’s witnesses nor any other evidence presented by Appellant that clearly showed that she had been verbally and physically attacked by her accusers prior to their false statements about her behavior at the work place.
4. The trial court erred when he ruled that the Appellant failed to report to work on May 19, 2011 without approval where the record shows that her supervisor rescinded her first denial of leave for May 19, 2011 and left the decision concerning leave for May 20, 2011 to be made by the floor supervisor who granted the Appellant leave.
5. The trial court erred when it did not find that the Appellant’s supervisors and coworkers retaliated against her when she cited them for improper behavior for demoting her and for firing her as soon as one day after she told her supervisor that she was applying for disability retirement.

IsFACTS AND PROCEDURAL HISTORY

Notwithstanding any argument raised by Ms, O’Neal, with the exception of Ms. O’Neal’s contrary accounts, the otherwise uncontradicted evidence submitted by the parties established the occurrence of the following incidents, on which Ms. O’Neal’s ultimate termination was based. On April 6, 2009, while Ms. O’Neal was working at DHH’s Marrero Health Clinic, as a Public Health Nurse 5, Ms. O’Neal became angry when she was approached by Lisa Davis, Administrative Supervisor 2, with a request to approve a leave request submitted by one of Ms. O’Neal’s supervisees. Ms. O’Neal angrily accused Ms. Davis of trying to “drive a wedge” between the nurses and Ms. O'Neal. Ms. O’Neal got very close to Ms. Davis’s face while Ms. Davis was on the telephone and repeatedly yelled that she was a “liar.” Ms. Davis testified at the hearing that Ms. O’Neal became “really enraged” and that things got “really ugly” when she asked Ms. O’Neal to sign a leave request so that a payroll deadline could be met. In an email dated the next day that she was asked to turn in to their supervisor, Dr. Takeisha Davis, Ms. Davis reported the incident as described above and stated that Ms. O’Neal often treats her with disrespect, and that she makes statements that cause conflict within the staff.

The next documented incident upon which Ms. O’Neal’s termination was partly based occurred on March 25, 2010. This incident also involved Ms. O’Neal and Lisa Davis, but also involved Ms. Rosalind Hawkins, supervisor of Ms. Davis, who was seated at a desk next to Ms. Davis at the time. Ms. Hawkins was very familiar with Ms. O’Neal and described her general behavior in the workplace as “loud,” “aggressive,” and often times “threatening.” On March 25, 2010, Ms. O’Neal came into Ms. Davis’s office “outraged, angry, and agitated” stating that her printer was not working properly and demanding that Ms. Davis fix it right away. Ms. Davis testified that she explained to Ms. O’Neal that she was currently working on a report that had to be finished and that she could not stop at that immediate moment. She testified that she offered Ms. O’Neal several alternative suggestions on how to print what she needed in the meantime, and that she would tend |4to the problem with Ms. O’Neal’s printer as soon as she could. Ms. Davis stated that the entire time Ms. O’Neal was in her office complaining of the printer, she was either sitting intimidatingly close to Ms. Davis, or standing inches beside her in a threatening manner. Apparently, Ms. O’Neal found someone else who was able to get her printer working, because she then returned back to Ms. Davis’s office, infuriated and in a “rage,” going on and on about Ms. Davis’s refusal to help her. Ms. Davis testified that she felt threatened, was extremely frightened there would be a fight, and that she did her best to ignore Ms. O’Neal until she finally left the office. That incident occurred on a Thursday. When Ms. O’Neal returned on Monday, she continued to “harass” Ms. Davis about the printer. At this time, Ms. Davis stated she decided to write a written statement, which she intended to turn in as a grievance against Ms. O’Neal because she “had had enough.” She further described Ms. O’Neal as verbally abusive, “combative, defensive, offensive, and rude.” She also noted that on more than one occasion, Ms. O’Neal threatened to “take her to court.” Ultimately, she noted that she was frightened of Ms. O’Neal and did not wish to work with her any longer.

Following the foregoing incident, Ms. O’Neal and Ms. Davis met with Mary Triggs, the Facilities Manager and supervisor of Ms. Davis. However, Ms. Davis stated that she left the meeting shortly after it began, against the wishes of her supervisor, because she was unable to speak. Ms. Triggs asked Ms. O’Neal for her version of events, then when it was Ms. Davis’s turn to speak, Ms. O’Neal began to repeatedly and incessantly call her a liar. Feeling nothing would get accomplished at the meeting, Ms. Davis left.

On May 24, 2010, Ms. O’Neal submitted an application for disability retirement benefits to Avis Gray, as the Region 1 Public Health Regional Supervisor, which application she later withdrew.

liiOn December 12, 2010, a comprehensive layoff plan (which eliminated approximately 50 percent of the workforce) implemented by DHH became effective, pursuant to which Ms. O’Neal was demoted from a Public Health Nurse 5 to a Public Health Nurse 3. Prior to the implementation of said plan, on November 12, 2010, Ms. O’Neal had received a letter from the assistant secretary of DHH, informing all employees of the impending and proposed layoff plan being implemented as a result of the Fiscal Year 2011 budget reductions.

In response to that notice, on November 18, 2010, Ms. O’Neal wrote a letter to the secretary of DHH, Shannon Templet, and the assistant secretary, Clayton W. Williams. In that letter she expressed concern “as to how decisions were made with respect to positions being abolished which are similarly situated.” She then detailed that the plan would abolish her Public Health Nurse 5 position and offer her a demoted position of Public Health Nurse 3, while at the same time, another employee with less time of service was being offered a relocation position at the 5 level, rather than the 3 position offered to her. She stated that her civil service record speaks for itself; that she had never received unsatisfactory ratings; and she asked for their “review and consideration in this regard.”

On December 7, 2010, Ms. O’Neal was hand-delivered a detailed letter explaining the layoff, providing a relocation offer, advising her of her right to comment, and the opportunity to accept the layoff rather than the relocation position offered. She was advised she had until December 12, 2010, to turn in her application for the “new” position. Ms. O’Neal accepted the relocated position and continued to work, as a Public Health Nurse 3. (However, on January 7, 2011, Ms. O’Neal wrote a letter requesting the department to investigate the proposed layoff plan, alleging it violated civil service rules.)

On January 10, 2011, while working at the newly consolidated Metairie/Marrero Health Clinic, Ms. O’Neal, on three separate occasions, intentionally “bumped” the shoulder of an employee under her supervision with her shoulder, as the two passed each other in the hallway, stating, at least once, “you better believe it.” The employee felt threatened by Ms. O’Neal’s behavior, as reflected in a written incident report she turned in the next day.

|i,On January 12, 2011, Ms. Gray met with Ms. O’Neal and admonished her for engaging in aggressive and physically threatening behaviors with co-workers and also counseled her on how not to be defensive when receiving constructive criticism from her supervisors.

However, on February 28, 2011, yet another incident occurred, concerning Ms. O’Neal and an employee she supervised, Crystal Webb. Ms. Webb testified that she was walking down the hallway of the Marrero Health Clinic and was forced to turn around and go back into an office because Ms. O’Neal was coming up the opposite end of the hallway and completely blocking her passage. According to Ms, Webb, “there was no way for me to pass.” Ms. Webb testified that the next day, March 1, 2011, while working at the St. Bernard Health Unit, Ms. O’Neal did the same exact thing — intentionally blocking the hallway in an intimidating manner when she saw Ms. Webb approaching. The incidents upset Ms. Webb such that she wrote and submitted written documentation of them to her supervisor.

On May 19, 2011, at 8:53 a.m., Ms. O’Neal sent an email to Ms. Gray requesting four hours of annual leave for that day and the following day, May 20, 2011. Ms. Gray responded by email that same day at 10:10 a.m. denying her request for leave, advising her that she had recently been excessively requesting leave such that it was having an adverse impact on the clinic, and also informing her that she needed to schedule her activities more carefully. Ms. Gray further advised Ms. O’Neal that Ms. Graham, the other nurse to whom Ms. O’Neal had copied her request, was not authorized to approve Ms. O’Neal’s leave requests. Finally, she advised Ms. O’Neal that she would be leaving the office at 1:00 p.m. that day, and ordered Ms. O’Neal to submit a modified leave request before that time. At 11:29 a.m., Ms. O’Neal emailed Ms, Gray, basically stating that she would be leaving that day, as well as the following day to do the things she requested the leave for. She complained about the way Ms. Gray denied her leave request, stating that only her mother could treat her that way, but that even her mother had more “grace” than Ms, Gray. She also accused Ms. Gray of hating her, and again |7advised that notwithstanding the denial of her leave request, she was going to leave at 11:30 that day and at the same time the next day.

Ms. Gray responded by email at 12:08 p.m. notifying Ms. O’Neal that she was not authorized to leave, even without pay, that the clinic would be understaffed and that if she left anyway, without working something out with Ms. Graham to ensure that the clinic was covered, that such action would be considered insubordination. Despite this communication, Ms. O’Neal left her work shift that day at 12:15 p.m., without approval.

On May 25, 2011, Ms. O’Neal was mailed written notice of proposed disciplinary action (dismissal) as a result of her “repeated verbal and physically aggressive actions directed toward Office of Public Health (OPH) employees and leaving your work station without your supervisor’s approval.” The letter also detailed the aforementioned incidents. The letter noted that she had twice been counseled by her supervisors, and her duty station had also been changed twice as a result of her behavior and in attempts to alleviate the problems associated therewith, but no improvement or change had been shown. In fact, Ms. O’Neal had two more incidents of physical aggression toward coworkers, and on May 19, 2011, she left her work station without authorization.

On May 30, 2011, Ms. O’Neal responded to the proposed disciplinary notice by email to Ms. Gray, stating that she was “vehemently opposed” to the proposed action, claiming that decision was based on “false alleged allegations.” She further stated she believed her dismissal was in retaliation for her having initiated a civil service investigation on January 7, 2011, and by her expressed desire to apply for disability retirement.

Nevertheless, by certified letter dated June 9, 2011, Ms. O’Neal was terminated from her position as a Public Health Nurse 3 effective June 17, 2011. The letter again advised Ms. O’Neal the dismissal was the result of her engaging in disruptive behavior and insubordination, and detailed the foregoing incidents.

| sAlso, by letter dated June 9/2011, from Patrick Lowery, Workforce Development Division Administrator, Ms. O’Neal was notified that a review had been undertaken of the layoff plan based on her previously submitted complaints. It was determined that the plan was limited to individual parishes, thus, Ms. O’Neal was not eligible for the position [the other employee] was relocated to because it was outside of Ms. O’Neal’s commuting area of Jefferson Parish. The letter also notified her that the layoff plan was implemented in compliance with all civil service rules and no further action or inquiry would be made in response to her complaints.

On July 8, 2011, Ms. O’Neal appealed her dismissal to the Civil Service Commission. She denied the allegations upon which her dismissal was based and alleged she was the victim of retaliation. She also included her earlier voiced complaints about the layoff plan and raised issues regarding her performance evaluations, as well as the effect her disability retirement application may have had on the department’s decision to terminate her.

On July 28, 2011, the Civil Service Commission referee to whom the case was assigned, Brent C. Fredrick, issued a notice to Ms. O’Neal giving her fifteen days to amend her appeal and/or to show cause why the claims, regarding the December 2010 layoff plan, her performance evaluations, and her disability retirement applications, should not be dismissed for failure to state a right to appeal those items to the Commission. Ms. O’Neal failed to respond, and on September 19, 2011, the referee dismissed those claims from the appeal.

Hearings were held on January 30, 2012 and on April 24, 2012, on the merits of Ms. O’Neal’s appeal of her dismissal. On June 22, 2012, the referee issued a detailed written decision, finding that DHH proved legal cause for Ms. O’Neal’s disciplinary action and also finding that the penalty imposed — dismissal—was commensurate with the offenses.

On July 6, 2012, Ms. O’Neal appealed the referee’s decision to the Civil Service Commission, alleging in a twelve-page letter that the decision was “in direct opposition to state civil service rule of law,” rendering it manifestly erroneous and characterized by an |flabuse of discretion. She continued to claim that all of the incidents alleged did not occur and that all allegations against her are false. She also alleged the referee gave credit only to the state’s witnesses and completely disregarded any of her witnesses.

On August 2, 2012, the Civil Service Commission, with David Duplantier, Chairman, issued written notification to Ms. O’Neal that her application for appeal was being denied, and the decision of the referee was thereby final. This appeal, filed on behalf of Ms. O’Neal on August 21, 2012, followed.

APPLICABLE LAW

Appellate courts reviewing civil service disciplinary cases are presented with a multifaceted review function. Initially, deference should be given to the factual conclusions of the civil service commission. A reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Then, the court must evaluate the commission’s imposition of a particular disciplinary action to determine if it is both based on legal cause and is commensurate with the infraction; the court should not modify the commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. “Arbitrary or capricious” means the absence of a rational basis for the action taken, “abuse of discretion” generally results from a conclusion reached capriciously or in an arbitrary manner. Crawford v, Southern University-Baton Rouge Campus, 2010-1169, p. 2 (La.App. 1 Cir. 2/11/11), 57 So.3d 612 (unpublished), citing Mathieu v. New Orleans Public Library, 2009-2746, pp. 5-6 (La.10/19/10), 50 So.3d 1259, 1262-63.

Employees with permanent status may be disciplined only for cause expressed in writing. La. Const art. X, § 8(A), “Cause” for dismissal of such a person includes conduct prejudicial to the public service involved or detrimental to its efficient operation. Mathieu, 50 So.3d at 1262.

Civil service laws and rules establish a system under which “non-policy forming” public employees are selected on the basis of merit and can be discharged only for insubordination, incompetency, or improper conduct. Equally as important as protection of the employees is the appointing authority’s duty to undertake disciplinary action h0against an employee for legal cause that impairs the efficiency of the public service. Just as great an injustice may arise from suffering the continuance of incompetent or insubordinate classified civil service employees in then-positions as from wrongfully terminating the permanently classified civil service employee. Both concerns are fundamental to the purpose of the civil service merit system. Id. (citations omitted).

DISCUSSION AND ANALYSIS

Notwithstanding Ms. O’Neal’s contentions to the contrary, we have reviewed the record in its entirety and find that it amply establishes the factual incidents of Ms. O’Neal’s behavior as described earlier in this opinion. Ml of the testimony presented by the persons involved in those incidents, either first-hand or as eyewitnesses, was consistent and wholly supports that those incidents occurred as described. The only evidence presented to the contrary was that of Ms. O’Neal herself, who, despite the abundance of evidence presented, continued to deny that any of those incidents occurred in the manner described. In addition to testimony regarding the specific facts and circumstances related to those incidents, the following testimony regarding Ms. O’Neal, generally, as an employee was elicited, which we find, also, wholly supports the findings and conclusions of the referee and the Commission's decision to deny the appeal.

Jacqueline Shields was Ms. O’Neal’s supervisor during April 2009, through sometime around April or May 2010. She testified that during the time she supervised Ms. O’Neal, there was a lot of tension between the two of them. She testified that she felt “challenged” by Ms. O’Neal and that she also received complaints from her clerical staff about Ms. O’Neal being a “bully” and speaking-abusively to other employees. Ms. Shields conducted an investigation into the complaints regarding Ms. O’Neal, that she submitted to the ultimate supervisor, Dr. Davis, by email on April 19, 2010. That two-page report contains very detailed lists of various complaints regarding Ms. O’Neal’s aggressive and bullying behavior and demeanor in the workplace.

|n Also, providing testimony was Dr. Ta-keisha Davis, the Regional Medical Director in Region 1 for the Office of Public Health, and who was also Ms. O’Neal’s direct supervisor at two different periods of time during Ms. O’Neal’s employment with the agency. She testified regarding her first-hand knowledge of there having been incidents involving Ms. O’Neal and Ms. Davis, as well as Ms. O’Neal and Ms. Gina Anderson, over which she had been required to counsel Ms. O’Neal. She testified at one time the decision was made to move Ms. O’Neal to the Delgado Personal Health Clinic for approximately thirty days, primarily due to the complaints being received by other employees about Ms. O’Neal’s threatening behaviors and their fears of having to continue to work around her.

We, further, find no merit to Ms. O’Neal’s contentions that the referee credited only the testimony of the state’s witnesses and completely ignored the testimony of her witnesses. Our review of the record reveals that Ms. O’Neal presented the testimony of Deidre Pierre, a co-worker who testified that she found Ms. O’Neal to be a nice, professional, laid back coworker. However, upon further questioning, it was revealed that Ms. Pierre did not really know Ms. O’Neal very well, and she ultimately admitted that she had only seen her three or four times during the years 2007 through 2010. She also presented the testimony of co-worker nurse practitioner Eden Tablan, who also testified that Ms. O’Neal was cordial and acted professionally as a nurse; however, she too, admitted that she actually spent very little time with Ms. O’Neal when they were working, and usually just saw her when she was leaving and said “good night.” Finally, the last witness testifying for Ms. O’Neal was another co-worker, Deidre Porter, who was supervised by Ms. O’Neal. She testified that she had no problems with Ms. O’Neal, that she respected her as a supervisor, and that she did whatever Ms. O’Neal told or asked her to do. However, she too, admitted that she was not with Ms. O’Neal during the entire work day, and that she did not witness the relationships and encounters that Ms. O’Neal had with others. Significantly, none of these witnesses was questioned about any of the specific incidents forming the basis for Ms. O’Neal’s dismissal. Thus, there is no merit to the contention that the referee ignored or even discredited Ms. O’Neal’s evidence. The | ^record reveals that the evidentiary weight of their testimony of her witnesses, based on their minimal contacts with Ms. O’Neal, was marginal at best. More importantly, they did nothing to minimize or contradict the other direct evidence establishing the egregiousness of Ms. O’Neal’s conduct at the workplace on more than one occasion.

We also find no merit to Ms. O’Neal’s contention that the referee erred in dismissing her claim regarding the December 2010 layoff plan. Ms. O’Neal asserts that she “appealed” the layoff plan on November 18, 2010, only two days after having received notice of such. Civil Service Rule 13.12 allows thirty days after which a person receives written notice of an action to appeal that action. On June 9, 2011, the Commission responded to Ms. O’Neal’s complaints about the layoff plan, informing her that it was implemented in compliance with all civil service rules and that none of her complaints were warranted. Ms. O’Neal did not seek review (appeal) of the Commission’s June 9, 2011 decision. Ms. O’Neal did appeal her termination, which became effective on June 17, 2011, on July 8, 2011. In that appeal, Ms. O’Neal re-asserted her challenges to the layoff plan. However, this “appeal” of the layoff plan was made more than six months after the effective date of the layoff, and more than thirty days after receiving the decision of the Commission regarding her first-lodged complaints. Ms. O’Neal does not cite, nor do we know of, any authority that would allow her a second chance to appeal the decision concerning the layoff on conjunction with her appeal of her termination. Nor has she otherwise shown how the referee erred in dismissing those claims from this appeal. Accordingly, this assignment also Jacks merit.

With regard to Ms. O’Neal’s complaints about alleged improprieties in her performance evaluations, we simply note that Civil Service Rule 13.10 governs which persons and what circumstances warrant an appeal to the Commission, and the appeal of an employee’s performance planning review is simply not within the Commission’s appellate jurisdiction.

The remaining assignments of error contest the referee’s conclusion that Ms. O’Neal’s dismissal was based on legal cause. The record before us is replete with evidence establishing an ongoing and persistent problem in the workplace resulting from 11sMs. O’Neal’s aggressive, threatening, abusive, unprofessional, and bullying behavior, which more than amply provides a basis to warrant termination. Additionally, the record fully supports that Ms. O’Neal was guilty of insubordination on May 19, 2011, when she intentionally, knowingly, and voluntarily left her work station without the approval of her supervisor. Moreover, in addition to all the evidence supporting termination, the record reflects that on more than one occasion, the department counseled Ms. O’Neal, and even relocated her, in attempts to alleviate the problems caused by her attitude and behavior. Not only were these counseling sessions unsuccessful, the record reveals Ms. O’Neal continued to have incidents whereby other employees felt abused, harassed, and threatened by her.

CONCLUSION

Accordingly, for all the foregoing reasons, we find no merit in this appeal. The record amply supports the conclusion reached by the referee and affirmed by the Commission. Therefore, that decision is hereby affirmed. Costs of this appeal are assessed to the appellant, Marsha O’Neal.

AFFIRMED.

      . We note that the appellant references the "trial court” when in fact, it was the State Civil Service Commission.

      . Ms. Lisa Davis was the supervisor of the clerical staff; Ms. O’Neal was the supervisor of the nursing staff. They did not supervise or have authority of one another; their employment relationship was described as "collaborative.”

      . Ms. Davis admitted that she was later "written up" for the first time in her employment with DHH, for leaving the meeting against the wishes of Ms. Triggs, but she testified that Ms. O'Neal was being childish and carrying on about the printer incident from the previous week, and she could not take anymore and did not feel Ms. O'Neal was going to allow anyone else to speak.

      . On June 6, 2011, Ms. O’Neal submitted a second application for disability retirement benefits to Ms. Gray, who signed the application on June 9, 2011, and the application was formally submitted on June 14, 2011.

      . This evidence includes the testimony of Rosalind Hawkins, Lisa Davis, Crystal Webb, Leona Anderson Jacqueline Shields, Dr. Ta-keisha Davis, Mary Triggs, Gina Anderson, and Avis Gray.


author: THERIOT, J.

text:
    Dennis L. BATTE v. Henry “Hank” LAWRENCE.
    No. 2012 CA 1953.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.

      Michael W. Whitehead, Livingston, LA, for PlaintiffiAppellant, Dennis L. Batte.
    Donnie L. Floyd, Kevon V. Howald, Prairieville, LA, for Defendant/Appellee, Henry “Hank” Lawrence.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

|2Pennis L. Batte, the claimant, appeals the ruling of the Office of Workers’ Compensation (“OWC”) to grant summary judgment in favor of the defendant, Henry “Hank” Lawrence, dismissing Mr. Batte’s disputed claim for compensation with prejudice. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

In his disputed claim for compensation, Mr. Batte claimed he fell from a ladder at Mr. Lawrence’s residence on or about September 7, 2011. Both parties in this matter submitted sworn affidavits to the OWC. Mr. Batte’s affidavit stated he was employed by Mr. Lawrence for approximately one year when he was injured while performing manual labor at Mr. Lawrence’s private residence. The employment, according to Mr. Batte, was by oral contract to perform work and manual labor at Mr. Lawrence’s residence, rental property, and office building, at the rate of $16.00 per hour, at an average of 30 to 40 hours per week. In his disputed claim for compensation, Mr. Batte described his occupation as “carpenter.” Mr. Batte further claimed that Mr. Lawrence assigned him various tasks, supervised the work, and maintained control over the work Mr. Batte performed.

In his affidavit, Mr. Lawrence admitted that he knows Mr. Batte, who had done work for him in the past, but denied that Mr. Batte was his employee at any time. Mr. Lawrence characterized Mr. Batte as an independent contractor who performed work as needed at the various properties that Mr. Lawrence owned. Mr. Lawrence claimed he paid Mr. Batte by the job and did not at any time pay him an hourly salary.

Mr. Lawrence further admitted that he was aware of Mr. Batte’s accident, which occurred at his residence. Mr. Batte was making repairs to |sthe house while standing on a ladder. According to the answer, Mr. Lawrence stated his father informed Mr. Batte that the ladder was placed in an unsafe location. The ladder was moved, but Mr. Batte moved the ladder back to the unsafe location and continued working. Mr. Lawrence heard the ladder fall, went to the ladder and found Mr. Batte. For a few months after the accident, Mr. Lawrence claimed he gave money to Mr. Batte as gifts of assistance, but not out of any obligation he felt he owed Mr. Batte.

Mr. Batte filed his disputed claim for compensation on February 17, 2012. Therein Mr. Batte claimed to be employed by Mr. Lawrence when he fell from the ladder while repairing Mr. Lawrence’s roof, and that Mr. Lawrence paid his wages for several weeks after the accident but discontinued the payments in December of 2011 and has refused to pay any of Mr. Batte’s medical bills. Mr. Lawrence filed a motion for summary judgment on June 21, 2012, alleging there was no genuine issue of material fact that Mr. Batte was not his employee at the time of the accident. Mr. Lawrence also argued he is exempt from liability under Louisiana Revised Statutes 23:1035(B)(1). The affidavits of Mr. Batte and Mr. Lawrence were the only evidence submitted at the hearing for the motion on summary judgment.

Based on the evidence, the OWC granted the motion for summary judgment. The judgment was rendered on July 30, 2012 finding, that Mr. Batte was the employee of a private residential householder, who is exempt from workers’ compensation coverage pursuant to Louisiana Revised Statutes 23:1035(B)(1). Mr. Batte filed a devolutive appeal on September 26,2012.

^ASSIGNMENT OF ERROR

Mr. Batte contends the trial court committed manifest error by granting summary judgment and finding that Mr. Batte was not the employee of Mr. Lawrence, thereby excluding him from coverage provided under the Louisiana Workers’ Compensation Act.

STANDARD OF REVIEW

The applicable standard of review for an appellate court considering summary judgment is de novo. Populis v. Home Depot, Inc., 2007-2449, p. 2 (La.App. 1 Cir. 5/2/08), 991 So.2d 23, 24, writ denied, 2008-1155 (La.9/19/08), 992 So.2d 943. A summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

DISCUSSION

Mr. Batte was injured while performing roof repairs on Mr. Lawrence’s private residence. No evidence was introduced at the hearing on the motion for summary judgment as to Mr. Batte’s net earnings. Mr. Lawrence stated in his affidavit that Mr. Batte was paid by the job, but offered no dollar figures as to Mr. Batte’s net earnings. Mr. Batte claimed to earn $16.00 an hour, working between 30 and 40 hours a week, but offered no dollar figures as to his net earnings. Mr. Batte claimed his salary was for all the work he did on Mr. Lawrence’s properties, not just his private residence. While Mr. Lawrence admitted that Mr. Batte performed work on all of his properties, he denied paying Mr. Batte a salary and claimed Mr. Batte worked as an independent contractor. Taking both affidavits into | Baccount, there was an oral agreement between the parties that Mr. Batte would perform work and services for Mr. Lawrence on his properties.

On July 30, 2012, the trial court signed a final judgment granting Mr. Lawrence’s motion for summary judgment and dismissing Mr. Batte’s claim with prejudice. In its stated reasons, the OWC found Mr. Lawrence to be exempt from the requirement of Workers’ Compensation insurance coverage under La. R.S. 23:1035(B)(1), which states in part:

There is exempt from coverage ... all labor, work, or services performed by any employee of a private residential householder in connection with the private residential premises of such householder ... when the employee’s annual net earnings for labor, work, or services amounts to one thousand dollars or less ... and which labor, work, or services are not incidental to and do not arise out of any trade, business or occupation of such householder ... With respect to such labor, work, or services and any employee performing the same, a private residential householder ... shall have no liability under the provisions of [the Workers’ Compensation Act] either as employer or as a principal.

Nothing in the record establishes the net earnings of Mr. Batte. Mr. Batte claims he was paid by the hour. Mr. Lawrence claims Mr. Batte was paid by the job. Regardless of the method of payment, the net earnings of the claimant is a genuine issue of material fact that needs to be known when applying La. R.S. 23:1035(B)(1). We find a genuine issue of material fact to exist as to the net earnings of Mr. Batte. If the net earnings of Mr. Batte are less than one thousand dollars, the statute may be applicable to the defendant if the other criteria are met. If the net earnings of Mr. Batte are greater than one thousand dollars, then the statute is not applicable to the defendant. Therefore, the OWC erred in granting the motion for summary judgment based on La. R.S. 23:1035(B)(1).

^CONCLUSION

One of the criteria needed to determine if an employer falls under the exception of La. R.S. 23:1035(B)(1) is the amount of net earnings the claimant has been paid. The record is devoid of the net earnings Mr. Lawrence paid Mr. Batte. For the purpose of this appeal, it is immaterial whether Mr. Batte was paid by the hour or by the job. The crucial issue is the net amount Mr. Batte was paid. Without evidence of Mr. Batte’s net earnings, we find the OWC legally erred in granting summary judgment based on La. R.S. 23:1035(B)(1).

DECREE

The OWC’s granting of summary judgment in favor of the appellee, Henry “Hank” Lawrence, is reversed, and the disputed claim for workers’ compensation filed by the appellant, Dennis L. Batte, is reinstated. This matter is remanded to the OWC for further proceedings consistent with this opinion. All costs of this appeal are assessed to the appellee.

REVERSED AND REMANDED.

CRAIN, J., concurs in result.

      . Although Mr. Batte suggests that the standard of review in this matter is manifest error, the jurisprudence shows that the correct standard of review is de novo.


text:
    Randal JOHNSON v. Malcolm BROUSSARD, Carlos Finalet & the Louisiana Board of Pharmacy.
    No. 2012 CA 1982.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.
    Rehearing Denied July 11, 2013.

      Karl J. Koch, Baton Rouge, LA, for Plaintiff-Appellee Randal Johnson.
    E. Wade Shows, Carrie LeBlanc Jones, Baton Rouge, LA, for Defendants-Appellants Malcolm Broussard, Carlos Finalet & The Louisiana Board of Pharmacy.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

lain this public records request case, the plaintiff, Randal Johnson (Mr. Johnson), was denied his request by the Louisiana Board of Pharmacy (the Board) to produce a digital copy of a computer database he alleged contained public record information. The trial court granted plaintiffs motion for alternative writ for mandamus, which was made peremptory after a hearing, by judgment signed October 4, 2012. The judgment ordered the Board to comply with plaintiffs request; ordered the plaintiff to pay reimbursement for the costs of fulfilling said request not to exceed $500.00; and, also, awarded the plaintiff attorney’s fees in the amount of $4,000.00 together with the costs of the proceeding. This appeal by the Board followed. After a thorough review of the record and applicable law, taking into consideration the concessions of plaintiffs counsel at oral argument, we amend the court’s judgment to modify the amount of reimbursement costs the plaintiff is ordered to pay. However, as modified, we affirm the judgment ordering the Board to comply with the public record request, finding the trial court did not err in granting the request.

FACTUAL BACKGROUND

On August 24, 2012, Mr. Johnson, a person well known in the pharmacy industry as the President of the Louisiana Independent Pharmacy’s Association (LIPA), in his individual capacity, made a public records request by way of email to Malcolm J. Broussard (Mr. Broussard), the executive director and record custodian for the Board, to produce a list of pharmacies, including the names thereof, the owners’ names, the mailing and physical addresses, the DEA, NCPDP , and permit numbers for each, the name of the pharmacist in charge at each, as well as the telephone, fax, and email contacts for each.

On that same date, Mr. Carlos Finalet (Mr. Finalet), general counsel for the Board, replied by email to Mr. Johnson’s email request, that the Board’s computer system was unable to generate reports compiling the list of information requested, but offered instead to generate a “simple mailing list, with name and address.” Mr. Finalet’s email also | vindicated that the Board’s system did not include pharmacy telephone or fax numbers, email addresses, and that the Board did not collect the NCPDP numbers. Mr. Finalet also responded that while the Board did collect and store each pharmacy’s DEA number, “I would suggest it might be bad public policy to release the DEA numbers (for obvious reasons).”

On September 4, 2012, Mr. Johnson again emailed Mr. Broussard, acknowledging the time constraints and resources necessary to meet his request, and in that email he agreed to modify that request to being provided with access to review the licensure database for pharmacies and pharmacists. Mr. Johnson advised that he would be accompanied to the review of the records by a “qualified professional” who would then digitally copy the information needed to compile the requested list of information onto his own storage equipment. He also requested that the Board notify him as to the time that such request could be honored.

Later that same day, Mr. Finalet replied to Mr. Johnson’s email request, advising him that Mr. Broussard was out of town until September 10, 2012, and that he (Broussard) as executive director would have to evaluate the staff resources of the Board upon his return to determine a proper schedule for Mr. Johnson’s review of the database.

Again, on that same date, Mr. Johnson replied that Mr. Finalet should take a look at the public records request statute (indicating that a public body is not allowed unnecessarily to delay providing requested public records) and reiterated his request that he be allowed access to the database by the end of that week. Mr. Johnson further advised that he did not foresee needing to utilize any of the Board’s own staff to access the database for the information he requested, so that no Board resources would be utilized in meeting his request.

RLater that same date, Mr. Finalet sent a reply email disputing Mr. Johnson’s assertion of the Public Records Law as a basis for his request. He indicated that the Board acknowledged the request for records that are public In nature, and its duty to provide him with access, but contested Mr. Johnson’s assertion that the records should be provided quickly without delay. Specifically, Mr. Finalet noted that the statute “does not state a specific time-line/deadline within which you shall have access.”

More significantly, Mr. Finalet replied that the files requested by Mr. Johnson, while containing public information, also contained “confidential information” such that the Board would have to retain a staff member to pre-review the files to separate the confidential information, and also, that the Board would charge Mr. Johnson for the staffs salary spent on compiling the public records requested. Finally, he reiterated that Mr. Johnson would have to await further instructions from Mr. Brous-sard regarding scheduling the request.

On September 8, 2012, by email, Mr. Broussard sent a comprehensive reply to Mr. Johnson, initially, stating the following:

With respect to our licensure information system, we are unable to create a computer screen shot that contains all the information you requested that does not also contain confidential information, such as social security numbers. Therefore, we are unable to grant you access to the licensure database. However, we can give you access to the files containing such documents used to create the database.

(Emphasis added.) The reply then posed numerous questions to Mr. Johnson related to limiting the scope of his request, ie., did it seek only information related to active status pharmacies, or restricted status as well; did it seek credentials related to only active status, or was it also seeking information on “inactive, suspended, revoked, closed, deceased?”; did it include only pharmacies with Louisiana addresses, etc.

Mr. Broussard then advised that prior to Mr. Johnson’s review of the database, the Board would need to utilize a staff member to screen each file, find a way to block access to confidential information, and indicate a need to narrow the files requested so that no time or resource would be wasted screening unnecessary' files. He informed Mr. Johnson |sthat he would be responsible for reimbursing the Board for the labor costs for staff persons assigned to the request, as well as copying charges. He further advised Mr. Johnson that the estimated time for the pre-screening of the files in preparation of complying with his request would be “weeks and probably months.” Finally, he asserted his nonlegal opinion that the request was “overly burdensome” and that once Mr. Johnson could “clarify the magnitude of it,” the Board would then begin the pre-screening and advise Mr. Johnson when the files would be ready for review.

As discussed below, following receipt of the September 8, 2012 email from Mr. Broussard, plaintiff filed a petition for writ of mandamus ordering the Board to comply with his request. However, on September 19, 2012, plaintiffs attorney also sent an email to Mr. Finalet asking him to provide the name of a witness that would be called to testify regarding the Board’s licensure databases and computer programs related to licenses for pharmacists and pharmacies, including information regarding the architecture of the database and whether any technical impediments exist preventing making a copy of those files. Mr. Finalet responded that there had been no response yet from the plaintiff to Mr. Broussard’s inquiry in his September 8, 2012 email regarding “clarification” of the “magnitude” of the plaintiffs request. Plaintiffs counsel responded to that email, also on September 19, 2012, that “Mr. Johnson presented a straightforward, simple request — he wants a digital copy of the licensure databases for pharmacies and for pharmacists. There is nothing that needs clarification.”

PROCEDURAL HISTORY

On September 17, 2012, plaintiff filed a petition for alternative writ of mandamus naming the Board, Mr. Broussard and Mr. Finalet, both, personally and in their official capacities with the Board, as defendants. (This is the petition that the trial court granted that forms the basis of this appeal.) In addition to seeking production of the requested records, plaintiff prayed for court costs and attorney’s fees incurred in bringing the action, as well as statutory penalties. Plaintiff alleged that despite his initial and subsequently amended requests, the defendants failed to make the requested records available for copying, and attempted to condition the plaintiffs access to the records upon his | r,agreement to pay charges not authorized by law. Plaintiff further alleged that the defendants claim it will be months before the request can be fulfilled and that his request is “overly burdensome” and would cause the Board delays in the performance of its other duties, despite that similar requests by others, seeking substantially the same information, had been met within days of making the request. Plaintiff also contended that the Board had implied that it would let all licensees know that any delay in the processing of license applications was due to Mr. Johnson’s overly burdensome request, utilizing the Board’s resources for something other than fulfilling its ordinary obligations.

The defendants responded with an exception of prematurity, contending that the parties were engaged in “an on-going dialogue” and that they never received a reply from the plaintiff following the last communication on September 8, 2012, seeking clarification of the “magnitude” of plaintiffs request. They claim because they were awaiting a response, there had been no “final determination” by the custodian regarding the request, such that the suit filed by the plaintiff was premature.

Defendants also opposed the plaintiffs petition by asserting that the records sought by the plaintiff “do not exist” (i.e., not contained in the format requested by plaintiff) and therefore, they are not public records and cannot be produced. And in the alternative only, if the request is deemed to be for records that are public, defendants maintain that the production thereof would be burdensome and would cause an “unreasonable disruption of the operation of the Pharmacy Board’s legal responsibilities and duties” such that if production is ordered, the plaintiff should be required to inspect the documents after hours and may be charged reasonable reimbursement fees. Finally, the defendants maintain that their conduct in response to the plaintiffs request was not arbitrary, capricious, or unreasonable; therefore, costs, attorney’s fees, and penalties are not appropriate.

ACTION IN THE TRIAL COURT

Exception of Prematurity

The trial court heard both the exception and the mandamus request on the same date. After arguments on the exception, the trial court determined that there had been a 17valid public records request, and that no response to that request had been made, and denied the exception of prematurity.

Defendants’ Evidence

At the hearing on the merits of the petition for alternative writ of mandamus, the Board presented the testimonies of Mr. Broussard and Mr. Finalet, and submitted into evidence all emails pertinent to the plaintiffs request. According to both Mr. Broussard and Mr. Finalet, the information requested by the plaintiff could not simply be obtained by copying the files, because those files also contain confidential information, such as social security numbers, that would have to be redacted therefrom to preserve the integrity of the confidentiality owed by the Board. Because the files did not exist in the form requested by the plaintiff, defendants took the position that the records as requested did “not exist” and therefore, could not be produced. Moreover, Mr. Broussard testified that he had consulted with the Board’s database vendor who provided an estimated cost of $4,200.00 to produce the requested information with confidential fields being redacted. Mr. Broussard also testified that the Board was willing to provide the information to the plaintiff through the use of the Board’s vendor, given assurance that the integrity of the records was protected.

Plaintiff’s Evidence

The plaintiff introduced into evidence his initial request to the Board, the Board’s email responses, and correspondence between the Board and another individual, who made a very similar public records request to the Board in July 2012 (reflecting that, that request was honored approximately twenty days after it was made, in the form of an excel spreadsheet that provided all the information requested, at a total charge to the requesting party of $136.57 for time spent accumulating the data).

The plaintiff also called as a witness Mr. Burt Barrerre, tendered as an expert in the field of computer information technology, specifically relational databases, who testified that it was possible to make a copy of a whole database while leaving out specific items deemed to be confidential, and that he, personally, would be capable of doing so. 18Mr. Barrerre also testified that in the “I.T. world” such a task is not particularly complicated, and indeed, it was quite common for a vendor to perform such a task from an off-site location. He further testified that it should not cost anywhere near $4,000.00. In fact, he opined that the entire task should take no more than four hours, at $100.00 per hour, or a total of $400.00.

Judgment of the Trial Court

The trial court, giving detailed oral reasons, found that the plaintiffs request was for public records and that the defendants have not yet provided the information or any portion of the information requested. The court also stated:

I’m convinced that the State [Board] either through its consultant or on its own, has the ability to provide the information from the database that has been requested. If they would not like to give the entire database because it contains confidential information, they can certainly do the query search and provide the report that gives the information from their database that they possess.” The court further found incredulous the Board’s IT consultant’s estimate of $4,200.00 “to write a program ... when a guy can sit down and do a query search under specific tables in four hours, I think that they’re trying to jamb (sic) the state [Board] for some money.

Implicit in this statement is the trial court’s finding the plaintiffs expert testimony — that the information could be retrieved a much simpler, inexpensive way (i.e., in four hours, at $100.00 per hour)— more tenable than that of the Board’s computer consultant.

Therefore, the trial court ordered the mandamus maintained, and ordered the Board to comply with the plaintiffs request within ten days. It also ordered the plaintiff to reimburse the Board for the cost of the data recovery, but limited that reimbursement to an amount not to exceed $500.00. The trial court also assessed costs and attorney’s fees (in the amount of $4,000.00) incurred in the proceedings against the defendants.

THE APPEAL

Defendants appealed the judgment of the trial court contending the trial court erred in finding that the records sought by Mr. Johnson are public records subject to production pursuant to the Public Records Act. They alternatively maintain that the trial Incourt erred in capping the reimbursement costs imposed on the plaintiff for producing the requested information at $500.00, and also in awarding costs and attorney’s fees.

APPLICABLE LAW

Louisiana Constitution, Article XII, Section 3, provides: “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” (Emphasis added.) The provision of the constitution must be construed liberally and in favor of free and unrestricted access to the records, and that access can be denied only when a law specifically and unequivocally provides otherwise. Whenever there is doubt as to whether the public has a right of access to certain records, the doubt must be resolved in favor of the public’s right to see. To allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights. Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984); see also, Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979, p. 5 (La.7/1/97), 696 So.2d 562, 564.

The foregoing constitutional provision has been codified in the Louisiana Public Records Act, La. R.S. 44:1 et seq., which includes in its definition of “public records,” all documentary materials, include ing information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the performance of any function under the authority of the constitution or laws of this state. La. R.S. 44:IA(2)(a),

Any person of the age of majority may inspect, copy or reproduce, or obtain a reproduction of a public record except as otherwise provided in this Chapter or as otherwise specifically provided by law. La. R.S. 44:31A and B(l) and (2). The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian. La. R.S. 44:31B(3).

In Title Research, 450 So.2d at 937, the supreme court noted that under La. R.S. 44:31B(1), the person requesting the public records has the right to choose one of four options and “the choice of which optional right to exercise rests with the one requesting the records and not with the custodian.” (Emphasis added.) And this court, in St. Tammany Parish Coroner v. Doe, 2010-0946, p. 7 (La.App. 1 La.App. 10/29/10), 48 So.3d 1241, 1246, further held that nothing in the Louisiana Public Records Act specifically prohibits reproduction of public records by electronic format. This court cited the following passage from a third circuit case for support:

We live in an age of technology in which private individuals, as well as government, can use information technology to create astronomical numbers of documents. To allow [the public entity] to create such voluminous records using information technology and then deny the use of that same technology to the public reviewing those records would strike directly at the heart of the public’s fundamental right of access to public records that is guaranteed by the Louisiana Constitution. When confronted with public records of goliath proportions, the average citizen’s fundamental right of access would prove illusive if he is denied the opportunity to use the very technology which helped create the overwhelming amount of information. To reproduce over 13,000 e-mails on paper, when other safe, efficient, and reasonable means are available, is unnecessarily laborious, costly, wasteful, and conflicts with the legislative intent of making public records as available as possible.

Johnson v. City of Pineville, 2008-1234, p. 9 (La.App. 3 Cir. 4/8/09), 9 So.3d 313, 319-20.

Any person who has been denied access to a public record may institute proceedings for the issuance of a writ of mandamus (as was done in this case), injunctive or declaratory relief, together with attorney fees, costs and damages. La. R.S. 44:35A. Moreover, the custodian is statutorily mandated to “extend to the person all reasonable comfort and facility for the full exercise of the right granted by this Chapter.” La. R.S. 44:32A.

With regard to the type of access the person shall be allowed, and any reimbursement the custodian may charge therefor, the statute provides:

[N]othing herein contained shall prevent the custodian from maintaining such vigilance as is required to prevent alteration of any record while it is being examined; and provided further, that examinations of records under the authority of this Section must be conducted during regular office or working hours, unless the custodian shall authorize examination of records in other than regular office or working hours. In this event the persons designated to represent the custodian during such examination shall be entitled to reasonable compensation to be paid to them by the public body having custody of such record, out of funds \ ^provided in advance by the person examining such record in other than regular office or working hours.

La. R.S. 44:32A. (Emphasis added.) Additionally, the custodian has authority to excise any non-public (confidential) information prior to giving access to the public record. La. R.S. 44:32B. However, simply because material requested may contain non-public records is not a reason for restricting access. Williams Law Firm v. Board of Supervisors of Louisiana State University and A & M College, 2003-0079, p. 6 (La.App. 1 Cir. 4/2/04), 878 So.2d 557, 563.

Finally, in any case in which a record is requested and a question is raised by the custodian as to whether it is a public record, the custodian is mandated to give the requesting party, in writing within three days of the request, notification of receipt of the request, of his determination and the reasons therefor. Such notification shall contain a reference to the basis under law which the custodian has determined exempts a record, or any part thereof, from inspection, copying, or reproduction. La. R.S. 44-.32D.

DISCUSSION/ANALYSIS

There is little question that the information requested by Mr. Johnson, by definition, is a public records request. As noted above, the established jurisprudence reflects that simply because a record or information is not stored or kept by the custodian in the format requested by the person requesting the information, does not render the public records non-public. Additionally, the jurisprudence further establishes that the inclusion of confidential information in otherwise public records also does not render those records “not public;” rather, the custodian may redact the confidential information before meeting said request. Therefore, we find no merit in the defendants’ arguments that the request was not for public records, or that they were unable to meet the request because it included confidential information.

Moreover, and as also noted above, the statute gives any person requesting public records the option of choosing one of four options for obtaining said records, one of which is to make a reproduction of the records, as the plaintiff seeks herein. The 112statute is clear and unambiguous in its grant of these alternate rights, and it also is clear that the choice of which optional right to exercise rests with the one requesting, and not with the custodian. La. R.S. 44:31; Title Research, 450 So.2d at 937.

While it is the duty of the custodian to preserve the public records and to ensure that nobody alters or destroys the records (see La. R.S. 44:32A), this vigilance by the custodian must be reasonable, and it must be by those means that are least intrusive on the right of access. Title Research, 450 So.2d at 937-38.

Finally, the evidence presented wholly supports the trial court’s conclusion that the Board has, both, the ability and the capability to extract whatever confidential information may be contained in the requested documents, as well as the capability to extract the requested information from its existing database and copy that for the plaintiff. The testimony of the two experts differed greatly in the estimated cost for accessing the database, excising the confidential information, and producing the requested copy of the database for the plaintiff. The plaintiff’s expert testified it could be done in no more than five hours, at $100.00 per hour, at a total cost of $400.00. On the other hand, the Board’s in-house computer vendor estimated the task would cost up to $4,200.00. The trial court, apparently believing the plaintiffs expert, and finding the Board’s estimate unreasonably high, ordered the plaintiff to pay reimbursement costs of up to $500.00.

CONCLUSION

At oral argument in this matter, however, counsel for plaintiff emphasized to this court his client’s position that this dispute is not about the costs, but rather about obtaining the requested public records. In pursuit of this ultimate goal, counsel for plaintiff stated in open court that plaintiff would be willing to pay up to the $4,200.00 estimate if that was what it took to get the requested material.

In light of this concession by the plaintiff, together with the statutory language, allowing the custodian to ensure the integrity of its systems, and the confidentiality of the information contained therein, we amend the trial court’s judgment to order plaintiff to pay reimbursement costs in an amount between $500.00 and not to exceed 11S$4,200.00, as reasonably warranted by the actual efforts taken to reproduce the requested materials.

In all other respects, we find the trial court did not err and the judgment, as modified, is hereby affirmed. Costs in the amount of $1,360.50 are assessed to the defendant, the Louisiana Board of Pharmacy.

AMENDED; AFFIRMED AS AMENDED.

      . This is an identifier number assigned by the National Council for Prescription Drug Programs.

      . It appears the Board has recanted this representation suggested by Mr. Finalet in this response email. In a subsequent deposition of Mr. Finalet taken on September 27, 2012, Mr. Finalet testified that he later clarified the issue with a DEA agent, who after conferring with her supervisors, told Mr. Finalet that the DEA numbers for the pharmacies are public record and not exempt from public record disclosures.


text:
    Jules CROVETTO v. June A. CROVETTO.
    No. 2012 CW 1895.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.

      Lindsey M. Ladouceur, Abita Springs, LA, for Plaintiffs-Relators, Robin Crovet-to Perez and Kelley Crovetto Overby, as Co-Executrices of the Succession of Jules V. Crovetto, Sr.
    Mark G. Duncan, Michelle Mayne Davis, Mandeville, LA, for Defendant-Respondent June Crovetto.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

liWe granted certiorari in this matter to consider the subject matter jurisdiction of Division “K” of the Twenty-Second Judicial District Court (22nd JDC), a division of the court designated to hear family and juvenile matters, when one of the former spouses dies after the petition for partition of the community of acquets and gains has been filed and set for trial, but before judgment has been rendered. On September 24, 2012, the trial court found, sua sponte that it lacked the requisite subject matter jurisdiction. From that ruling the parties moved for a new trial, which the trial court denied on October 16, 2012. The parties thereafter sought supervisory review of that ruling via supervisory writs. For the reasons that follow, we grant the writ and make it peremptory, reversing the trial court’s ruling of October 16, 2012, denying the parties’ joint motion for new trial and find that Division “K” of the 22nd JDC retained subject matter jurisdiction of the partition proceeding.

Facts and Procedural History

This community property action commenced in Division “K” of the 22nd JDC, with a motion to partition the former community property of Jules Crovetto, Sr. and June Crovetto. After the motion was filed and set for trial, Jules Crovetto died. Thereafter, the Succession of Jules Crovet-to, Sr. was substituted as the party plaintiff by order of the court dated December 19, 2011, and Crovetto’s two daughters, Robin Crovetto Perez and Kelley Crovetto Overby, were appointed to represent the Succession as Co-Executrices.

Subsequently, a three-day trial was held on May 7, May 17, and June 4, 2012, after which the court took the matter under advisement. On September 24, 2012, the trial court, sua sponte, found that it lacked the requisite subject matter jurisdiction based on the Supreme Court’s decision in McCann v, McCann, 2011-2434 (La.5/8/12), 93 So.3d 544. Thereafter, the parties filed a joint motion for new trial on October 3, 2012, [¡¡arguing that the trial court’s application of McCann was erroneous because that case is distinguishable from the facts and law involved in this matter. On October 16, 2012, the trial court denied the parties’ motion for new trial.

Subsequently, the plaintiffs, as Co-Executrices, as well as June Crovetto, Jules Crovetto’s former spouse, sought supervisory review of that ruling. We granted certiorari to consider the subject matter jurisdiction of Division “K” of the 22nd JDC, a division of the court designated to hear family and juvenile matters.

Plaintiffs argue the trial court erred in denying their joint motion for new trial relying on the Supreme Court’s decision in McCann, which applied to a domestic proceeding in the Family Court of East Baton Rouge Parish. While plaintiffs agree that removing the matter from the Family Court for East Baton Rouge Parish was the correct action for the court to take in McCann, as that decision focused on the specific language in the enabling statute for that specific court, they submit that the enabling statute at issue in the instant matter, La. R.S. 13:621.22, does not contain the specific language relied upon in McCann.

Plaintiffs further argue that Rule 23.0 of the Rules of Court for the 22nd JDC further supports their argument that the McCann decision is inapplicable to the instant proceeding.

Discussion and Applicable Law

A court’s subject matter jurisdiction is an issue that cannot be waived or conferred by the consent of the parties. The issue of subject matter jurisdiction may be raised at any time, even by the court on its own motion, and at any stage of an action. Joseph v. Ratcliff, 2010-1342 (La.App. 1 Cir. 3/25/11), 63 So.3d 220.

Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2; Blanchard v. Blanchard, 2012-0106 (La.App. 1 Cir. 12/31/12), 112 So.3d 243, writ denied, 2013-0488 (La.4/12/13), 111 So.3d 1013. A judgment rendered by a court that has no jurisdiction over the subject matter of the [ 4action or proceeding is void. See La. C.CP. arts. 3 and 925(C). Williams v. International Offshore Services, LLC, 2011-1240 (La.App. 1 Cir. 12/7/12), 106 So.3d 212, writ denied, 2013-0259 (La.3/8/13), 109 So.3d 367. It is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. McGehee v. City/Parish of East Baton Rouge, 2000-1058 (La.App. 1 Cir. 9/12/01), 809 So.2d 258.

The Louisiana Constitution states that except as otherwise authorized by this constitution, a district court shall have original jurisdiction of all civil and criminal matters. La. Const, art. V. § 16(A). Article V, Section 15(A) of the Louisiana Constitution now authorizes the legislature, by law, to establish new judgeships for district courts and to establish new divisions with limited or specialized jurisdiction within the territorial jurisdiction of the district court and subject matter jurisdiction over family or juvenile matters as provided by law. Moreover, Article V, § 16(A)(3) of the Louisiana Constitution provides:

The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.

See also La. Const, art. V, § 18.

Divisions “K” and “L” of the 22nd JDC were established as a result of 2008 La. Acts, No. 844, § 2, effective June 23, 2008. These newly created divisions limited subject matter jurisdiction to family or juvenile matters as provided by law.

Specifically, La. R.S. 13:621.22, which is the statute that designated the specific divisions to hear family and juvenile matters within the 22nd JDC, and specifically Division “K,” provides, in pertinent part:

A. There is hereby created two additional district judgeships for the Twenty-Second Judicial District for the parishes of St. Tammany and Washington. The first additional judge herein provided for and his successors shall preside over Division K, which is hereby created for purposes of nomination and election only, The second additional judge herein provided for and his successors shall preside over Division L, which is hereby created for purposes of nomination and election only. The first additional judge and his successors from Division K shall be elected at large and shall have jurisdiction throughout the district. The subject matter jurisdiction of Division K is limited, under the provisions lBof Article V, Section 15(A) of the Constitution of Louisiana, to family or juvenile matters as provided by law. The second additional judge and his successors from Division L shall be elected at large and shall have jurisdiction throughout the district. The subject matter jurisdiction of Division L is limited, under the provisions of Article V, Section 15(A) of the Constitution of Louisiana, to family or juvenile matters as provided by law. Each of the two additional judges and each of their successors shall receive the same compensation and expense allowances, payable from the same sources and in the same manner, as are now or may hereafter be provided for other judges of the district.

(Emphasis added.)

Moreover, local Rule 23.0 of the 22nd JDC provides, in pertinent part:

There shall be a family docket in the Twenty-Second Judicial District Court and that Docket shall be allotted to Divisions K and L. Matters heard on the Family Docket shall include:
(a) Suits for annulment, divorce and separation with all related incidental matters as defined by La. C.C. Art. 105, and the community property partitions associated with the dissolution of said marriages.
Until the Rules for Family and Domestic Proceedings for the Twenty-Second Judicial District Court are fully implemented, the Rules for Civil Proceedings in Districts Courts contained in Title I and Title II of the Rules of Louisiana District Courts together with the Twenty-Second Judicial District Court Appendices, shall apply to all family and domestic proceedings in the absence of a specific rule in the Twenty-Second Judicial District Court Family and Domestic Proceedings Rules.

(Emphasis added.)

While the Constitution allows for the granting of limited jurisdiction to establish family courts, as well as specific divisions of district courts designated to hear family matters and matters incidental to marriage, the legislature has specified the parameters of that jurisdiction, although worded differently in each judicial district. The subject matter jurisdiction of Division “K,” which limits the court to proceedings involving family and juvenile matters, falls within the province of the 22nd JDC in St. Tammany Parish and, as shown above, is provided for in La. R.S. 13:621.22.

In McCann the Supreme Court held that the East Baton Rouge Parish Family Court does not retain subject matter jurisdiction over a partition of community property after one of the former spouses dies. The high court’s decision, upon which the trial court relied, specifically addresses La. R.S. 13:1401, which establishes the Family Court for East Baton Rouge Parish and provides, as follows:

|rrA. There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
(1)All actions for divorce, annulment of marriages, claims for contributions made by one spouse to the education or training of the other spouse, establishment or disavowal of the paternity of children, spousal and child support and nonsupport, and custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees in judgments of divorce, the cumulation of and rendering executory of spousal and child support, the issuance of writs of fieri facias and garnishment under judgments of the court for spousal and child support and attorney fees, jurisdiction of which was vested in the Nineteenth judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge.
(2)(a) All actions between spouses or former spouses for partition of community property and property acquired pursuant to a matrimonial regime.
(b) All actions for the termination or modification of a matrimonial regime.
(c) All actions for the settlement and enforcement of claims arising from matrimonial regimes or the establishment thereof.
(d) All actions between former spouses seeking the enforcement of a judicial or contractual settlement of claims provided in this Subsection.
(3) All proceedings for writs of habeas corpus for the determination and enforcement of rights to the custody of minors or for the release of any person in actual custody in any case of which the family court has original jurisdiction. B. The family court for the parish of East Baton Rouge has all such additional jurisdiction, power, and authority now or hereafter provided by law.

(Emphasis added.)

While the language of La. R.S. 13:621.22, as well as the District Court Rule, provides for Divisions “K” and “L” of the 22nd JDC as a family docket where suits for annulment, divorce and separation with all incidental matters, as well as community property partitions associated with the dissolution of marriage matters shall be heard, it does not contain the limiting language, “between spouses or former spouses” of La. R.S. 13:1401, which establishes the Family Court in East Baton Rouge Parish. This limiting language, although essential to the court’s decision in McCann, is not present in the statute applicable to the instant matter.

|7On June 28, 2011, Jules Crovetto moved to partition the community property that previously existed between him and June Crovetto. At the time Jules Crovet-to, Sr. moved to set the partition for trial, Division “K” of the 22nd JDC was designated as one of the divisions to hear family and juvenile matters, and the court had jurisdiction over this matter given our interpretation of La. R.S, 13:621.22. After a three-day trial, but before a decision in the suit had been rendered, the Supreme Court handed down its decision in McCann, wherein the court relied on the language of La. R.S. 13:1401, which established a Family Court for East Baton Rouge Parish. Because that decision addressed La. R.S. 13:1401, which established a separate Family Court in East Baton Rouge Parish, we find it distinguishable from the instant suit.

While the McCann decision addressed the applicability of La. R.S. 13:1401 to the proceedings in East Baton Rouge Parish Family Court, we do not believe its applicability extends to Divisions “K” and “L” of the 22nd JDC as the pertinent language of La. R.S. 13:621.22, the applicable statute, does not specify, in its designation, use of the terms “spouses or former spouses.” Indeed, the pertinent language of La. R.S. 13:621.22 limits the jurisdiction of Divisions “K” and “L” of the 22nd JDC to family or juvenile matters. Further, as previously mentioned, Rule 23.0 of the Rules of Court for the 22nd JDC provide that matters heard in Divisions “K” and “L” include suits for annulment, divorce and separation with all related incidental matters as defined by La. C.C. Art. 105, and the community property partitions associated with the dissolution of said marriages. Although we are well aware that marriage terminates upon the death of either spouse or upon divorce, we recognize that a community property partition is a related incidental matter to the marriage or dissolution of such union. La. R.S. 13:621.22, the applicable statute herein, does not explicitly contain language referring to spouses or former spouses. Rather, it references suits for divorce and related matters thereto. As such, we refrain 18from extending the Supreme Court’s ruling in McCann to the instant proceedings in Division “K” of the 22nd JDC.

Conclusion

For the above foregoing reasons, the trial court’s order of September 24, 2012, finding it no longer had subject matter jurisdiction, as well as the judgment of October 16, 2012, denying the parties’ joint motion for new trial is reversed and judgment is entered in favor of Robin Crovetto Perez and Kelley Crovetto Overby, as Executrices of the Succession of Jules Cro-vetto, as well as June Crovetto, finding Division “K” of the 22nd Judicial District Court has subject matter jurisdiction over the instant proceedings.

REVERSED AND RENDERED.

McDONALD, J., concurs, I believe the court has jurisdiction under 13:621.22(2)(a).

      . We note the trial court’s ruling was simply that it did not have subject matter jurisdiction. Moreover, there is nothing in the writ application indicating that the trial court either dismissed the matter or transferred the proceedings to be re-docketed. Thus, according to the motion and order of September 24th and the ruling of October 16th, denying the motion for new trial, the matter remains in Division "K” of the 22nd JDC.

      . La. C.C. art. 105 references the incidental matters arising from marriage and falls within Chapter 1 of Title 5 of the Civil Code, entitled "Divorce”.


author: HIGGINBOTHAM, J. McCLENDON, J.,

text:
    Robert C. ESTES v. ST. TAMMANY PARISH SCHOOL BOARD and Louis D. Boyne, Jr.
    No. 2012 CA 1750.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.
    Rehearing Denied July 17, 2013.
    E. James Gaidry, Jr., Houma, LA, for Plaintiff-lst Appellant, Robert C. Estes.
    Ronald J. Vega, Kenner, LA, for Defendant-2nd Appellant, Louis D. Boyne, Jr.
    Scott G. Jones, Lawrence J. Boasso, Mandeville, LA, for Defendant-Appellee, Encompass Insurance Company of America.
    David S. Pittman, Harry P. Pastuszek, Jr., Faith E. Richard, Covington, LA, for Defendant-Appellee, St. Tammany Parish School Board.
    Before WHIPPLE, C.J., PARRO, McClendon, Higginbotham, and CRAIN, JJ.
   HIGGINBOTHAM, J.

IsThis appeal arose out of a physical altercation between two substitute teachers and the trial court’s dismissal of one of the teacher’s homeowners’ insurer on summary judgment. We reverse and remand for further proceedings.

BACKGROUND

Plaintiff, Robert C. Estes, and defendant, Louis D. Boyne, Jr., are substitute teachers who were both interested in a long-term substitute teaching position at Fountainbleau High School in Mandeville, Louisiana. Apparently the two men had exchanged heated words about which one of them was entitled to the position, but on the evening of October 22, 2009, their verbal dispute became physical. After a volleyball game that both men attended at the school, Mr. Boyne approached Mr. Estes, who was conversing with a group of people inside the school gymnasium. The parties dispute what happened once Mr. Boyne reached the area where Mr. Estes was standing and what led to Mr. Boyne hitting Mr. Estes in the face before bystanders separated the two men. Mr. Estes claims that he removed and handed his glasses to a friend when he saw Mr. Boyne approaching, and then Mr. Boyne struck him in the face. Mr. Boyne indicates that after Mr. Estes removed his glasses, he felt threatened, because Mr. Estes immediately assumed a fighting posture. Mr. Boyne claims he simply reacted to the threat by attempting to defend himself and throw the first punch. It is undisputed that only Mr. Boyne threw a punch in the altercation.

Mr. Estes filed this lawsuit against Mr. Boyne and the St. Tammany Parish School Board (“School Board”), asserting that his jaw, neck, and shoulder were injured when Mr. Boyne negligently attacked him without just cause. Mr. Estes later added as a defendant, Mr. Boyne’s homeowners’ insurer, Encompass Insurance Company of America (“Encompass”), who allegedly provided liability insurance coverage for Mr. Boyne’s acts. The School Board and Mr. Boyne 13answered the lawsuit, generally denying all of Mr. Estes’ allegations. Encompass answered the lawsuit, denying coverage based on an intentional act exclusion in the insurance policy it had issued to Mr. Boyne.

On the same day it filed its answer, Encompass filed a motion for summary judgment, seeking dismissal of Mr. Estes’ suit pursuant to the intentional act policy exclusion. In support of its motion, Encompass filed a certified copy of the policy, as well as discovery responses filed by Mr. Estes and excerpts from Mr. Boyne’s deposition and the deposition of a witness, Irving “Jerome” Culbertson. Encompass also relied on a surveillance video purporting to show Mr. Boyne approaching and hitting Mr. Estes.

The exclusion for intentional acts, as amended by endorsement, is found in the Encompass policy under the section for personal liability coverage. The exclusion provides, in pertinent part:

LOSSES WE DO NOT COVER
1. h. Intended by, or which may be reasonably expected to result from the intentional acts or omissions of one or more covered persons. This exclusion applies even if:
(1) Such covered person lacks the mental capacity to govern his or her conduct;
(2) Such bodily injury or property damage is of a different kind, quality, or degree than initially expected or intended; or
(3) Such bodily injury or property damage is sustained by a different person, entity, real or personal property, than intended or reasonably expected.
However, this exclusion does not apply to bodily injury resulting from the use of reasonable force by one or more covered persons to protect persons o[r] property.

Mr. Boyne opposed Encompass’s motion for summary judgment by filing an affidavit, attesting that he felt threatened by Mr. Estes and that he had acted spontaneously and instinctively in self-defense, with no intent to injure Mr. Estes. |4Mr. Estes also opposed the dismissal of Encompass on summary judgment, by referencing various deposition excerpts in his opposition memorandum; however, Mr. Estes did not offer any evidence to be filed into the record in opposition to Encompass’s motion.

After a hearing on April 11, 2012, the trial court took the matter under advisement, specifically leaving time for Encompass to file a reformatted copy of the school’s surveillance video into the record, as well as time for the opposing parties to file oppositions to the admission of the surveillance video. No oppositions were filed into the record. On June 13, 2012, the trial court granted a summary judgment in favor of Encompass, signing a judgment dismissing Encompass from the lawsuit. Mr. Estes and Mr. Boyne filed separate appeals from the partial final judgment. They essentially make the same argument, that is, that the trial court erred in granting summary judgment, because genuine issues of material fact remain as to whether Mr. Boyne’s actions were intentional or spontaneous and instinctive and whether Mr. Boyne acted in self-defense. Mr. Estes also maintains that the trial court erred in relying on the surveillance video, because it required the trial court to make a subjective interpretation of a factual conclusion that is inappropriate for summary judgment.

LAW AND ANALYSIS

This court reviews summary judgment de novo, considering the same criteria applied by the trial court in deciding whether summary judgment is appropriate. Romano v. Altentaler, 2011-0303 (La.App. 1st Cir.9/14/11), 77 So.3d 282, 284. Under the provisions of La.Code Civ. P. art. 966(B)(2), the party seeking summary judgment is required to prove two elements: (1) that no genuine issues of material fact exist, and (2) that it is entitled to judgment as a matter of law. If the mover meets its burden of proving these two issues, the burden shifts to the party opposing the motion to “produce factual support sufficient to establish that 15he will be able to satisfy his evidentiary burden of proof at trial.” See La.Code Civ. P. art. 966(C)(2).

Summary judgment may be rendered on the issue of insurance coverage alone. See Romano, 77 So.3d at 284. However, summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Id. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Jarrell v. Travis, 2004-0117 (La.App. 1st Cir.2/11/05), 906 So.2d 551, 553.

Summary judgment is rarely appropriate for disposition of a case requiring judicial determination of subjective facts such as intent, motive, malice, good faith, or knowledge. Id. But, an exception is recognized when no genuine issue of material fact exists concerning the relevant intent or motive, and the only issue to be decided is the ultimate conclusion to be drawn from the uncontested material facts. See Romano, 77 So.3d at 284. However, the issue of subjective intent is fact-intensive and is an issue to be determined by the totality of the circumstances examined on a case-by-case basis. Inzinna v. Walcott, 2002-0582 (La.App. 1st Cir.11/21/03), 868 So.2d 721, 726. See also Baggett v. Tassin, 2009-0803 (La.App. 5th Cir.3/23/10), 39 So.3d 666, 670-671.

In this case, Mr. Boyne argues that there is a genuine issue of material fact as to whether he acted in self-defense. Mr. Boyne contends that he simply reacted spontaneously and instinctively to the situation presented when he walked up to Mr. Estes after the volleyball game, because he “felt threatened by the actions of [Mr.] Estes ... squaring off in a fighting posture” immediately after he tapped Mr. Estes on the shoulder. Mr. Boyne stated in his affidavit that he was defending |fihimself when he threw the first punch, because he was afraid that Mr. Estes was about to hit him, and he did not intend to injure Mr. Estes in any manner. Encompass’s intentional act exclusion clearly does not apply to injuries “resulting from the use of reasonable force to protect persons[.]” Thus, the question of whether Mr. Boyne used reasonable force for his protection is obviously determinative of the outcome of this litigation. Based on the facts presented, summary judgment is inappropriate as to this issue.

Even the testimony of an independent witness, Mr. Culbertson, does not assist in resolving the issue. Mr. Culbertson stated that he thought it was strange, but Mr. Estes handed over his watch for Mr. Culbertson to hold while he was conversing with others after the game. When Mr. Culbertson turned to see what was going on, he witnessed Mr. Boyne punch Mr. Estes in the face. However, Mr. Culbertson did not witness what happened immediately prior to Mr. Estes being punched, and he specifically testified that he did not notice Mr. Boyne’s actions prior to the assault.

Thus, the only evidence in the record consists of the conflicting versions of the altercation given by Mr. Estes and Mr. Boyne. The surveillance video shows Mr. Boyne’s approach, as well as movement on the part of Mr. Estes immediately prior to Mr. Boyne’s lunging toward Mr. Estes with his arm outstretched. It is impossible to determine by watching the video whether Mr. Boyne used reasonable force to protect himself in this situation or whether he aggressively struck Mr. Estes for no apparent reason. Based on the evidence, summary judgment is inappropriate as to the self-defense limitation presented in the intentional act exclusion of Encompass’s policy. We are unable to find that Encompass’s policy unambiguously excludes coverage for this incident as a matter of law, because the subjective intent of Mr. Boyne is a critical factual issue — a genuine issue of ]7material fact— that is still to be determined. Thus, the case is not ripe for summary judgment.

CONCLUSION

For the reasons stated, we reverse the summary judgment rendered by the trial court in favor of Encompass on the issue of insurance coverage, and we remand this matter for further proceedings. All costs of this appeal are to be paid by defendant-appellee, Encompass Insurance Company of America.

REVERSED AND REMANDED.

PARRO, J., concurs.

McLENDON, J., dissents and assigns reasons.

CRAIN, J., dissents for reason assigned by Judge McLENDON.

McCLENDON, J.,

dissents and assigns reasons.

hit is clear that Mr. Boyne was the aggressor and could have walked away from the confrontation at any time prior to throwing the punch. Therefore, I find that the intentional act exclusion in the policy applies. Accordingly, I must respectfully dissent.

      . The video was submitted as an exhibit attached to Encompass’s reply memorandum in support of its motion for summary judgment.