author: THIBODEAUX, Chief Judge.

text:
    Raymond C. DAVIS v. Robert ST. ROMAIN
    16-811
    Court of Appeal of Louisiana, Third Circuit.
    06/07/2017

      Todd S. Clemons, Todd Clemons & Associates, A Professional Law Corporation, 1740 Ryan Street, Lake Charles, LA 70601, Telephone: (337) 477-0000, COUNSEL FOR: Third Party Appellee—Pal-vest, Inc.
    Jamie C. Gary, Dwight Law Firm, LLC, 1400 Ryan Street, Lake Charles, LA 70601, Telephone: (337) 439-3138, COUNSEL FOR: Defendant/Appellee—Robert St. Romain
    Daniel M. Landry, III, Christian B. Landry, The Landry Law Firm, P. O. Box 3784, Lafayette, LA 70502, Telephone: (337) 237-7135, COUNSEL FOR: Appellant—Difang, LLC
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Marc T. Amy, Judges.
   THIBODEAUX, Chief Judge.

| Raymond Davis and Robert St. Romain entered into a purchase agreement for Mr. St. Romain to sell land he inherited from his father. The agreement mandated the act of sale date could be extended thirty days if curative work was needed. Mr. Davis sought to correct title defects and triggered the extension. However, he did not perform curative work, and Mr. St. Romain refused to execute closing documents. Thus, the purchase agreement expired without the property being conveyed. Mr. Davis filed suit alleging breach 'of contract. The trial court issued a judgment in favor of Mr. St. Romain and determined a third-party purchaser, Palvest, Inc., was the rightful owner. It reasoned Mr. Davis failed to perform necessary curative work, even after he requested an extension to do so. For the reasons that follow, we affirm the trial court’s judgment.

I.

ISSUE

We must decide whether the trial court erred in finding Mr. Davis, the proposed purchaser, breached the terms of the purchase agreement by not performing curative work after extending the act of sale date and finding Palvest, Inc. was entitled to the subject property.

-kIL

FACTS AND PROCEDURAL HISTORY

This is a dispute over the purchase of immovable property. The buyer, Mr. Davis, and the seller, Mr. St. Romain, entered into a purchase agreement for 330 acres. Robert St. Romain and his siblings inherited the property from their father after his death. The Judgment of Possession omitted a 28.426 acre tract their father owned. The parties initiated paperwork to amend the judgment to include the additional tract. However, the amending paperwork was never filed; thus, the heirs were never put into possession of the tract.

The purchase agreement mandated the closing to take place on April 26, 2010, at 4:00 p.m. or sooner if mutually agreed. The agreement allowed the closing date to be extended thirty (30) days if curative work was required. On the.act of sale date, Mr. Davis’s attorney sent correspondence to Mr. St. Romain’s attorney informing him curative work .was required .because the Judgment of Possession needed to be amended to include the 28.426 acre tract. The letter also noted his concern that Mr. St. Romain made efforts to sell his interest to a third party, Palvest, Inc. The purchase agreement between Palvest and Mr. St. Romain was signed on December .30, 2009, and January 4, 2010, respectively. Mr. St. Romain slated he signed. the agreement with Palvest because of his concern Mr. Davis would not follow through with the purchase agreement.

IsAfter he used the extension, Mr. Davis created Difang, LLC. He and his wife were the sole members. Mr. Davis assigned and transferred his rights in the purchase agreement to Difang. He stated he founded Difang for estate planning purposes. A year before Difang was founded, a judgment against Mr. Davis in an unrelated matter from an Alabama court for $2,538,905 was made executory in Calca-sieu Parish.

A day'before the closing deadline, Mr. Davis appeared in Houston, where Mr. St. Romain resided and worked, without notice. He testified he traveled there with two deeds—one transferring the property to him personally, the other transferring the property to Difang. The revised deeds included the 28.426 acre tract, without warranty of title.

Mr. Davis feared Mr. St. Romain would not meet him willingly, so he devised a plan to lure Mr. St. Romain to a designated location. He recruited his friend, Jeff Buchannon, who called Mr. St. Romain to inform him he was the winner of prize money. Mr. Buchannon told him that he wanted to deliver the check to him at a parking lot in Houston, Mr. Davis chose the parking lot because it was near a notary office. Mr. Buchannon did not mention either Mr. Davis’s involvement or that the prize money was a fraudulent story.

The two met and after they exchanged handshakes, Mr. Davis stepped out of his car with a cashier’s check and the two deeds. Mr. St. Romain refused to sign the documentation when confronted because his attorney had not reviewed it. After the meeting in Houston, Mr. Davis’s attorney forwarded to Mr, St. Romain’s attorney the proposed deed and an unsigned Act of Assignment between Mr. Davis and Di-fang. Mr. St. Romain never signed the closing documents. He later conveyed the property to Palvest, Inc., a third-party purchaser.

I ¿Thereafter, Mr. Davis filed suit against Mr. St. Romain alleging breach of contract. Difang was added as a plaintiff -and Palvest was added as a third-party defendant. Mr. Davis was dismissed from the action because the purchase agreement had been assigned to Difang. Mr. St. Ro-main filed a motion for summary judgment, which was granted by the trial court, but later reversed on appeal. See Davis v. St. Romain, 12-1442 (La.App. 3 Cir. 6/5/13) (unpublished opinion).

After a bench trial, the trial court ruled in favor of Mr. St. Romain. The court reasoned: (1) Mr. Davis did not perform curative work even after he requested an extension to do so; (2) the extension of the closing date was a “subterfuge to allow Mr. Davis to get his affairs in order so that the property wouldn’t be attacked [by the Alabama judgment];” (3) it was necessary to perform curative work; (4) the proposed deed presented on the eve of the closing deadline was “sloppy;” and (5) Pal-vest was an innocent third-party purchaser, and the sale to it was valid. Difang now appeals the trial court’s judgment.

f—( b-4 ⅜-H

STANDARD OF REVIEW

The parties dispute the standard of review we should apply. Difang contends that because this matter involves interpretation of a contract, the de novo standard of review should be applied. Conversely, Mr. St. Romain posits the manifestly erroneous or clearly wrong standard should be applied because the trial court’s factual findings are disputed.

Generally, a contract is examined on its four corners, without the need for extrinsic evidence, as a matter of law. However, “[w]here factual findings are Ispertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown.” Evangeline Parish Sch. [Bd.] v. Energy Contr., 617 So.2d 1259, 1265 (La.App. 3 Cir.), writ denied, 624 So.2d 1228 (La.1993) (quoting Borden, Inc. v. Gulf States Utilities Co., 543 So.2d 924, 928 (La.App. 1 Cir.), writ denied, 545 So.2d 1041 (La. 1989)). Conversely, “[w]hen a trial court’s interpretation of a contract is not based upon any factual findings, but, rather, is based upon a review of the contract’s language, the manifest error standard of review does not apply.” Derouen v. Nelson, 09-467, p. 3 (La.App, 3 Cir. 3/10/10), 32 So.3d 1079, 1082 (citing Conoco, Inc. v. Tenneco, Inc. By and Through Tennessee Gas Pipeline Co., 524 So.2d 1305 (La.App. 3 Cir. 1988), writ denied, 525 So.2d 1048 (La.1988)).

Here, the trial court heard witnesses, considered evidence and made factual findings, in addition to examining the four corners of the contract. The trial court also made a number of factual findings. For example, the trial court examined Mr. St. Romain’s demeanor and determined he was a “mild-manner kind of guy” who was not trying to evade the sale to Difang but wanted his attorney to review the documents instead of signing them when confronted in Houston. Further, the trial court determined Mr. Davis used the thirty-day extension as a maneuver to “get his affairs” in' order to prevent the Alabama judgment from attaching to the property. The trial court also determined it was necessary to perform curative work once the thirty-day extension was triggered.

Because the trial'court made factual findings, we will apply the manifest error standard of review, which does not allow us to reweigh the evidence or substitute our own factual findings. When there are two permissible views of |fievidence, the fact finder’s determination cannot be overturned unless manifestly erroneous or plainly wrong, Rosell v. ESCO, 549 So.2d 840 (La.1989).

TV,

LAW AND DISCUSSION

Difang argues it is immaterial whether curative work was performed. It contends the trial court erred in its interpretation because the purchase agreement does not mention specifically the necessity to perform curative work once the extension was triggered. Further, it claims creating Di-fang was not based on nefarious motives, but was done for Mr. Davis’s estate planning. Difang also claims Mr. St. Romain did not make an effort to have the closing documents reviewed by his attorney after the two met in Houston. Difang contends Palvest is not the rightful owner because the purchase agreement between Mr. St. Romain and Palvest was executed nearly five months prior to the original closing date between Mr. Davis and Mr. St. Ro-main.

In opposition, Mr. St. Romain contends curative work was necessary to fulfill the terms of the purchase agreement. Since Mr. Davis did not complete the curative work even after requesting an extension to do so, the agreement was terminated. Instead, Mr. St. Romain argues Mr. Davis extended the closing to avoid a prior judgment from an Alabama court from attaching to the property. Mr. St. Romain directs the court to a timeline of events he calls “not coincidental.”

17Further, Mr. St. Romain posits the closing documentation presented to him was not reflective of the purchase agreement. The deed, he argues, did not contain: (1) a reservation of mineral rights; (2) a signature line for him; or (3) a reference to any person who had authority to execute the proposed deed on behalf of Difang. He also notes documents assigning interest from Mr. Davis to Difang were sent to him, but were unsigned. Mr. St. Romain avers Palvest is the rightful owner because his interest was not conveyed to Palvest until two years after the Davis-St. Romain agreement expired.

A contract “must be interpreted in a common-sense fashion, according to the words of the contract their common and usual significance.” Lambert v. Maryland Cas. Co., 418 So.2d 553, 559 (La.1982). Louisiana Civil Code Article 2045 establishes the “[interpretation of a contract is the determination of the common intent of the parties.” “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046.

However, a contract is ambiguous when “either it lacks a provision bearing on that issue, the terms of a written contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed.” Campbell v. Melton, 01-2578, p. 6 (La. 5/14/02), 817 So.2d 69, 75. If a contract is ambiguous, extrinsic evidence is admissible to determine the true intent of the parties. LFI Fort Pierce, Inc. v. Acme Steel Bldg., Inc., 16-71 (La.App. 3 Cir. 8/17/16), 200 So.3d 939.

|S“A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties.” La. Civ.Code art. 2053. Further, “[i]n case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.” La.Civ.Code art. 2056.

Here, we note Difang does not argue it completed the curative work. Instead, Difang contends the sale could have proceeded without curative work being performed. However, it ignores a key provision in the purchase agreement. The agreement states “[t]itle shall be merchantable.” That is, the property shall not be conveyed without a merchantable title. A merchantable title is one that “can be readily sold or mortgaged in the ordinary course of business by reasonable person familiar with the facts and questions involved.” Vallery v. Belgard, 379 So.2d 1201 (La.App. 3 Cir. 1980) (citing Young v. Stevens, 252 La. 69, 209 So.2d 25 (1967)). Typically, in Louisiana, a purchase agreement provides specifically that the seller is responsible for delivering merchantable title to the purchaser. See 1 La. Prac. Real Est. § 9:60 (2d ed.). However, the agreement here is silent on which party is responsible for ensuring merchantable title. Because Difang drafted the purchase agreement, any ambiguities are resolved against it. Moreover, Mr. Davis requested an extension to resolve the title issue and took it upon himself to draft the proposed deed. Thus, Mr. Davis was responsible for ensuring title was merchantable.

The deed presented by Mr. Davis to Mr. St. Romain in Houston did not perfect merchantable title. Mr. Davis knew Mr. St. Romain had not been placed in possession of the 28.426 acre tract. He was active in attempting to |9convince the heirs to amend the Judgment of Possession before he drafted the purchase agreement. However, an amended Judgment of Possession was never filed. Even still, Mr. Davis included the additional tract in the proposed deed. Such a deed does not reflect mei'chantable title because it includes a tract not yet in the seller’s name. Further, Mr. St. Romain did not receive a signed Act of Assignment between Mr. Davis and Difang in advance of the closing date. Without such a document, Mr. St. Romain could not have conveyed his interest to a party that was not subject to the purchase agreement. Accordingly, we find the deed presented to Mr. Romain referenced immovable property for which title was not merchantable.

Additionally, the trial court did not err in finding it was necessary to perform curative work. As noted above, a contract must be interpreted in a common-sense manner. If it was unnecessary to cure defects in the title, Mr. Davis could have closed on the original act of sale date. Mr. Davis requested an extension with the express intent to perform curative work. Mr. Davis did not attempt to perform, and certainly never completed, necessary curative work.

The evidence supports the trial court’s finding that Mr. Davis used the extension as a ploy. Instead of performing curative work, Mr. Davis used the extension to create Difang and assign his interest in the purchase agreement to it. He did so to prevent the Alabama judgment from attaching to the subject property. Consequently, Mr. St. Romain never was presented with proper documentation to legally convey the property before the purchase agreement expired. Accordingly, the trial court did not commit manifest error. We affirm its judgment on this issue.

Further, Palvest is the rightful owner. When fraud or bad faith are not issues, a third party purchaser is considered an innocent third party purchaser | inentitled to protections afforded by the public records doctrine. Owen v. Owen, 336 So.2d 782 (La.1976). This doctrine mandates an innocent third party need only look to the public records to determine adverse claims. Three Rivers Farm Supply, Inc. v. Webber, 617 So.2d 1220 (La. App. 3 Cir. 1993).

First, neither fraud nor bad faith is an issue because there is no evidence Palvest stunted Mr. Davis’s ability to provide proper closing documents to Mr. St. Romain. Thus, Palvest is an innocent third party purchaser. In fact, Mr. St. Romain could not sell to Palvest until his purchase agreement with Mr. Davis expired. See, e.g., Versai Mgmt., Inc. v. Monticello Forest Prods. Corp., 479 So.2d 477, 481 (La. App. 1 Cir. 1985) (holding that an option holder’s acceptance of a recorded option to purchase immovable property within the stipulated time cannot be defeated by a subsequent sale of the property, which occurred after the option was recorded, to a third party). If Mr. Davis had closed on the original act of sale date, or if he performed the necessary curative work, he would be entitled to the property. Instead, he failed to perform curative work even after he requested an extension to do so. Consequently, he breached the purchase agreement and forfeited his right to claim an interest in the property.

Second, the Davis-St. Romain purchase agreement was a contract to sell, but only if the terms were met. The agreement did not convey the property to Mr. Davis. The record establishes that after the purchase agreement between Mr. St. Romain and Mr. Davis was executed, Mr. St. Romain executed a second purchase agreement with Palvest. The second purchase agreement was done as Insecurity if the deal with Mr. Davis fell through. Mr. St. Ro-main rightfully conveyed his interest to Palvest nearly two years after the Davis-St. Romain purchase agreement expired. Accordingly, we affirm the trial court’s judgment on this issue.

V.

CONCLUSION

For the reasons stated, the trial court’s judgment is affirmed. Costs of this appeal are assessed to Difang, LLC.

AFFIRMED.

Amy, J., concurs in the result.

      . Difang, LLC is owned by Mr. Davis and his wife. He transferred his interest in the purchase agreement to Difang. After Mr. Davis filed suit, Mr. St. Romain filed an exception of no right of action because the purchase agreement had been assigned to Difang. The petition was then amended to add Difang and Mr. Davis was dismissed.

      . Additional sellers were Aaron St. Romain and Danielle St. Romain, who also are heirs to Don St. Romain, Sr.

      . The contract states: "In the event curative work in connection with the title is required, the parties agree to and do extend the date of passing the Act of Sale to a date not more than Thirty days from the stated Act of Sale. Title shall be merchantable. If title is not merchantable then, among other rights, Purchaser shall have the right to declare this contract null and void, reserving unto Purchaser the right to demand tire return of the deposit and to recover from Seller actual cost % incurred in processing the sale. Seller to pay for all curative costs.” (Emphasis added).

      . Palvest submitted a brief in which it adopted Mr. St. Romain’s arguments.

      . This timeline includes: (1) On April 17, 2009, the plaintiff in the Alabama matter recorded the judgment in Calcasieu Parish making it executory against Mr. Davis in the Fourteenth Judicial District Court; (2) On November 2, 2009, the purchase agreement was signed with an April 26, 2010, closing date, (3) On April 26, 2010, Mr. Davis delayed closing using the thirty day curative measure extension, which set May 26, 2010, as the new closing date, (4) Mr. Davis and his wife created Difang, LLC, on May 21, 2010; (5) On May 25, 2010, Mr. Davis surprised Mr. St. Romain in Houston; and (6) On May 28, 2010, Mr. Davis filed suit.

      . “An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located.” La.Civ. Code art. 1839; see also La.Civ.Code arts. 517, 2442, 3338.

      . The purchase agreement with Palvest was executed on December 30, 2009, and January 4, 2010, which was more than a month after the Davis-St. Romain agreement was signed.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas ANDERSON, Pamela Davenport, Evelle Thomas, June Harvey, Joseph Wong, individually and on behalf of those similarly situated, All Person Exposed to Chemicals at 2400 Canal Street v. CITY OF NEW ORLEANS
    NO. 2016-CA-1013
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 14, 2017

      Roy F. Amedee, Jr., LAW OFFICES OF ROY F. AMEDEE, JR., 3723 Canal Street, New Orleans, LA 70119, Jennifer N. Willis, William P. Buckley, WILLIS & BUCKLEY, APC, 3723 Canal Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLEE
    Gary J. Gambel, MURPHY ROGERS SLOSS & GAMBEL, 701 Poydras Street, Suite 400, New Orleans, LA 70139, Antonio M. Clayton, ATTORNEY AT LAW, 3741 Highway 1 South, Port Allen, LA 70767, COUNSEL FOR PLAINTIFFS/APPELLEES
    John A. Stewart, Jr., Brodie G. Glenn, BALDWIN HASPEL BURKE & MAYER, LLC, 1100 Poydras Street, Suite 3600, Energy Centre, New Orleans, LA 70163-2200, Robert B. Gilbreath, HAWKINS PARNELL THACKSTON & YOUNG, LLP, 4514 Cole Avenue, Suite 500, Dallas, TX 75205, COUNSEL FOR DEFENDANT/APPELLANT, NID CORP.
    Darryl J. Foster, BRADLEY, MURCHISON, KELLY & SHEA, 1100 Poy-dras Street, Suite 2700, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLANT, PAN-AMERICAN LIFE
    Kimlin S. Lee, DEPUTY CITY ATTORNEY, Corwin St. Raymond, ASSISTANT CITY ATTORNEY, Cherrell S. Taplin, SENIOR CHIEF DEPUTY CITY ATTORNEY, Rebecca H. Dietz, CITY ATTORNEY CITY OF NEW ORLEANS, 1300 Perdido Street, City Hall—Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT, CITY OF NEW ORLEANS
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins)
   | iThis appeal is of a trial court judgment granting a class certification. For the reasons that follow, we vacate the trial court judgment and remand for further proceedings.

BACKGROUND

The City of New Orleans (the “City”) is the owner of a building known as the “City Hall Annex” (the “Annex”), located at 2400 Canal Street, in New Orleans, Louisiana. In a Petition for Damages filed on May 12, 2000, plaintiffs, individually and on behalf of those similarly situated, claimed to have suffered personal injuries as a result of them exposure to “dangerous levels of hazardous chemicals including potassium hydroxide, hydrochloric acid and hydrofiboric acid.” Plaintiffs alleged that the City was aware that “hazardous, dangerous | achemicals were present” at the Annex, but “nonetheless ordered petitioners and those similarly situated to work in this dangerous environment.” They further alleged that the City “negligently and intentionally caused and/or allowed” the presence of these chemicals at the Annex. Plaintiffs’ suit was brought individually and on behalf of “those similarly situated, all persons who have been exposed to or contaminated by toxic, hazardous chemicals present on the premises at 2400 Canal Street.” The Petition then reiterates that the class action is instituted “pursuant to the provisions of [La.C.C.P.] Article 591, et seep,” by the plaintiffs and:

... all similarly situated persons who have sustained damages arising or resulting from the circumstances, events, acts and omissions complained of herein, specifically, all persons who sustained harm due to the presence of and exposure to hazardous chemicals at the building at 2400 Canal Street.

By way of an amending petition filed on April 6, 2001, plaintiffs added Pan Am as a defendant to this suit, alleging that the chemicals stored at the Annex were placed there by Pan Am and that the storage of the chemicals “created an unreasonably dangerous condition for subsequent occupants of’ the Annex. After the trial court granted a dilatory exception of vagueness filed by Pan Am, plaintiffs amended their petition to clarify that Pan Am was the former owner of the Annex and that Pan Am used the chemicals to clean its printing presses. Plaintiffs further alleged that Pan Am stored the chemicals in containers not intended for long term use, a result of which was the “leakage, spillage and/or diffusion of chemical vapors,” which contaminated the building. According to plaintiffs, the | ^contamination of the building persisted until the chemicals were removed in December, 1999, although the building remained contaminated thereafter.

Plaintiffs filed a Third Amended Petition on June 22, 2005 to add Poydras Square, Inc., and New Orleans Centre Associates, a Louisiana partnership in commendam (collectively referred to as “Poydras Square”), as defendants. In this third petition, plaintiffs alleged that Poydras Square owned the property after Pan Am and that, while Poydras Square did not buy the chemicals stored at the Annex, it allowed the chemicals to remain on the property during the period of its ownership, failed to dispose of them or engage-in clean-up measures, and failed to warn of the dangers associated with the chemicals.

Over the next nine years, the parties filed various pleadings, including cross-claims, motions for summary judgment and various other motions. Then, for four days in September and October, 2015, the trial court held a hearing on the issue of class certification. By judgment dated June 30, 2016, the trial court granted plaintiffs’ request for class certification. It is from this judgment that the City, Pan Am and NID Corporation (the successor in interest to Poydras Square) timely appealed.

Assignments of error on appeal

The City, Pan Am and NID (collectively sometimes referred to herein as “defendants”) together contend that the .trial court erred in granting class certification in several respects: namely, that the plaintiffs failed to (1) meet the commonality, typicality and numerosity requirements; (2) meet the requirement |4that the class be defined objectively in terms of ascertainable criteria; and (3) meet the requirements of La. C.C.P. art. 591 (including the predominance and superiority requirements). They further maintain that the trial court erred in altogether failing to address La.C.C.P. art. 591 C. Pan Am also argues that the trial court failed to conduct a “rigorous analysis” as is required before certifying a class, while NID Corporation contends that the trial court erred in finding the class representatives to be adequate.

Because we find that the trial' court’s June 30, 2016 judgment fails to designate the class, the judgment lacks the decretal language necessary to render the judgment a final and appealable judgment. We therefore vacate the judgment and remand this matter to the trial court for further proceedings.

DISCUSSION

Before an appellate court may consider the merits of an appeal, it has a “duty to determine sua sponte whether subject matter jurisdiction exists, even when the parties do not raise the issue.” In re Med. Review Panel of Hurst, 16-0934, p. 1 (La. App. 4 Cir. 5/3/17), 220 So.3d 121, 2017 WL 1719051, quoting Moon v. City of New Orleans, 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425. As this Court recently explained:

Por- a judgment to be a “valid final judgment,” it must contain specific “decretal language.” [Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C., 14-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910.] “ ‘A valid judgment must be precise, definite and certain. ... The decree alone indicates the decision. ... The result decreed must be spelled out in lucid, unmistakable language. .... The quality of . definiteness is essential to a proper judgment.’” Id., (quoting Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc., 10-477, pp. 12-13 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 915-16). In . the absence -of the necessary, decretal language, the judgment is not final and appealable. Tsegaye v. City of New Orleans, 15-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710, writ denied, 16-0119 (La. 3/4/16), 188 So.3d 1064.

Urquhart v. Spencer, 15-1354, p. 3 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077. The judgment must identify, inter alia, “the- relief that -is -granted or denied.” Id., quoting Mid City Holdings, 14-0506 at p. 3, 151 So.3d at 910. Likewise, as the Court noted in Urquhart, “‘[t]he specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.’” Id., 15-1354, pp. 3-4, 204 So.3d at 1077. (quoting Input/Output Marine, 10-477, p. 13, 52 So.3d at 916).

A review of cases involving class actions clearly demonstrates that a trial court is to specifically define the class. See, e.g., Baker v. PHC-Minden, L.P., 14-2243 (La. 5/5/15), 167 So.3d 528, 535 (where the trial court set forth in great detail the class definition, including sub-classes); Claborne v. Hous. Auth. of New Orleans, 14-1050, p. 17 (La. App. 4 Cir. 4/15/15), 165 So.3d 268, 283, writ denied, 15-0946 (La. 9/11/15), 176 So.3d 1039 (where the trial court rejected the class definition suggested by the plaintiffs and set forth its own specific definition of. the class and this Court ’ affirmed, finding the class to be “clearly and objectively defined”); Smith v. City of New Orleans, 13-0802, p. 9 (La. App. 4 Cir. 12/23/13), 131 So.3d 511, 518, writ denied, 14-0173 (La. 4/4/14), 135 So.3d 644, and writ denied, 14-0174 (La. 4/4/14), 135 So.3d 645(finding that the class “definition [specifically set forth in the trial court judgment] is clear”); Guidry v. Dow Chem. Co., 12-0436, 12-0198, p. 8 (La. App. 4 Cir. 11/14/12), 105 So.3d 900, 906, writ granted in part and remanded, 2012-2696 (La. 3/1/13), 108 So.3d 755 (affirming the trial court’s definition as “clearly ascertainable”).

|nIn the instant matter, the trial court judgment merely states as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that this Court hereby GRANTS the request for class certification, finding that all of the requirements provided for in established jurisprudence and Article 591(A)(1) though (5) of the Louisiana Code of Civil Procedure have been satisfied.

There is nothing in the judgment that defines the class and accordingly, the judgment fails to meet the requirement that it be precise, definite or certain. Likewise, there is no manner by which to determine how the class is defined without looking at extrinsic sources.

We note, too, that our well-settled jurisprudence indicates that a trial court’s “written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment.” Wooley v. Lucksinger, 09-0571, p. 77 (La. 4/1/11), 61 So.3d 507, 572, quoting Bellard v. American Cent. Ins. Co., 07-1335 p. 25 (La. 4/18/08), 980 So.2d 654, 671; Greater New Orleans Expressway Commission v. Olivier, 02-2795 p. 3 (La. 11/18/03), 860 So.2d 22, 24. Even if .'we were to rely on the trial court’s.reasons for judgment in this case, we would find no express or, specific class definition. In those reasons, the trial court notes what the plaintiffs sought, stating as follows:

Plaintiffs seek certification of a class consisting of all workers employed - at the Annex who were exposed to toxic chemicals storéd in the basement of the building starting-.in August 1982 until December 9,1999 and who suffered injury as a result of that exposure.
⅜ -⅜ }Ji ¾! ⅞
^Plaintiffs seek to certify as- a class all persons who worked at the Annex building from 1982 to December 9, 1999 and were exposed to the toxic barrels, a clearly ascertainable class which can be verified through employment records and worksheets.

While the trial court makes no comment after the first statement setting forth what the plaintiffs were seeking, directly after the second statement, the trial court indicates that “[t]his Court finds that Plaintiffs have satisfied the element of numerosity.” The trial court likewise found that the' plaintiffs “satisfied the element of typicality and adequacy of representation.” However, the trial court never actually sets forth how the class is to be defined. Nor does the trial court distinguish whether the class consists of “workers employed at the Annex” or “all persons who worked.at the Annex;” both groups- of persons are identified in the reasons for judgment. The terms “employed” and “worked” are not entirely synonymous. Those who “worked” in the Annex could arguably encompass anyone who performed work at the Annex over the years, including those who were not employees of any entity which had offices at the Annex; e.g., plumbers, electricians, other workers performing repairs at the Annex over the years. Indeed, their exposure to allegedly “toxic and hazardous materials” could be as significant as at least one of the putative class representatives, Ms. June Armour, who the trial court noted “had worked in the building for only five weeks before the December 9, 1999 incident.” In fact, Ms. Armour, as a “parking control officer,” actually spent little time in the Annex; she testified that she “would report to work for 8:30.,. and [then] go out on the street for 9:00 o’clock [sic].” She would return to the building to clock out at 5:00.

Accordingly, even if we were to consider the trial court’s reasons for judgment, they do not set forth a precise definition of the class, which is essential | Rin a class action proceeding. La. C.C.P. art 591 A(5) specifically calls for a “class [which] is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.” The requirement of a precise class definition is not a mere formality and cannot be overlooked given that “[t]he purpose of [its] requirement is to ensure that the class is not amorphous, indeterminate, or vague, so that any potential class members can readily determine if he/she is a member of the class.” Chalona v. Louisiana Citizens Prop. Ins. Corp., 08-0257, p. 9 (La. App. 4 Cir. 6/11/08), 3 So.3d 494, 502. The class definition is also directed at serving another purpose of the class action-to ‘adjudicate and obtain res judi-cata effect on all common issues applicable not only to the class representatives who bring the action, but to all others who are similarly situated.’” Chiarella v. Sprint Spectrum LP, 04-1433, p. 16 (La. App. 4 Cir. 11/17/05), 921 So.2d 106, 118, citing Ford v. Murphy Oil U.S.A., Inc., 96-2913, p. 4 (La. 9/9/97), 703 So.2d 542, 544; Banks v. New York Life Insurance Co., 98-0551, p. 2 (La. 12/7/98), 722 So.2d 990; Andry v. Murphy Oil, U.S.A., Inc., 97-0793, p. 3 (La. App. 4 Cir. 4/1/98), 710 So.2d 1126, 1129.

Thus, where the class is not definitively and specifically identified by the trial court, the objectives of the class action proceeding cannot be met. Absent a clear class action definition by the trial court, a judgment cannot be reviewed on appeal. We therefore vacate the trial court judgment and remand for further proceedings.

VACATED AND REMANDED

      . The record reflects that the Annex was originally owned by Pan-American Life Insurance Company ("Pan Am”), which sold it to Poy-dras Square Associates on August 10, 1982. Poydras Square Associates leased the Annex to the City for fourteen months until January 14, 1985, when it exchanged the Annex with the City for other properties. We note that, while the sale and exchange documents list the entity as "Poydras Square Associates,” it is also referred to by some of the parties as "Poydras Square, Inc.”

      . Plaintiffs were employed by the City and/or Pan Am and alleged that "[d]espite [the City’s] knowledge of the risks presented by these chemicals, it (intentionally recklessly and callously) nonetheless ordered petitioners and those similarly situated to work in this dangerous environment with constant exposure to deadly, dangerous, hazardous, and harmful chemicals.”

      . On December 9, 1999, an incident occurred at the Annex and the New Orleans Fire Department was called to the site in response to a report of smoke and vapors emanating from the ground floor.

      . In order for a class to be certified, the plaintiffs must establish five prerequisites for maintaining a class action proceeding, which are set forth in La. C.C.P. art. 591 A: “(1) Numerosity; (2) Commonality; (3) Typicality; (4) Adequacy of Representation; and (5) Objectively Defined Class,” Duhon v. Harbor Homeowners’ Ass’n, Inc., 15-0852, p. 5 (La. App. 4 Cir. 6/30/16), 197 So.3d 322, 327, writ denied, 16-1448 (La. 11/15/16), 209 So.3d 779.


author: Judge Marion F. Edwards, Pro Tempore

text:
    RASIER, LLC v. CITY OF NEW ORLEANS John Doe v. City of New Orleans
    NO. 2016-CA-0930, NO. 2016-CA-0931
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 14, 2017

      David I. Courcelle, Scott C. Stansbury, COURCELLE & BURKHALTER, L.L.C., 3500 North Causeway Boulevard, Suite 185, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT, JOHN DOE
    James M. Garner, Timothy B. Francis, Matthew M. Coman, Joshua P. Clayton, SHER GARNER CAHILL RICHTER KLIEN & HILBERT, L.L.C., 909 Poy-dras Street, 28th Floor, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT, RASIER, LLC
    David M. Strachan, Assistant City Attorney, Anita B. Curran, Deputy City Attorney, Adam J. Swensek, Chief Deputy City Attorney, Cherrell R. Simms, Sr. Chief Deputy City Attorney, Rebecca H. Dietz, City Attorney, City of New Orleans, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE, THE CITY OF NEW ORLEANS
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Marion F. Edwards, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

hRasier, LLC, and John Doe appeal the district judge’s denial of their request for a preliminary injunction which sought to prevent the City of New Orleans from acting on a public records request brought by the New Orleans Advocate seeking the release of information from the City’s transportation network company driver registry and trip data relative to third-party automobile drivers working on a contractual basis. Finding merit in appellants’ argument that the district judge abused her discretion in ruling that Mr. Doe’s privacy rights will not be. violated by the City’s release of the driver registry information, we reverse in part the district court’s judgment, grant in part the appellants’ request for a preliminary injunction, and affirm in all other aspects. We now explain our ruling in greater detail.

I

We first examine this matter’s procedural and factual background.

This matter concerns the City’s attempt to respond to a local newspaper’s public records request for documents detailing the operation of Rasier, a wholly owned subsidiary of Uber and one of the City’s licensed transportation network |2companies. In 2015, the City passed a series of laws permitting TNCs to operate within the parish. A TNC is an organization “that connects passengers with drivers using their personal vehicle for purposes of for-hire transportation services by means of a TNC digital network.” City Code Section 162-1700. TNC services comprise “the transportation of a passenger between points chosen by the passenger and is prearranged by a TNC using a TNC digital network.” Id. A TNC digital network is “any online-enabled application, software, website, or system offered or utilized by a TNC that enables the prearrangement of rides with TNC drivers.” Id. A TNC driver is “a person who uses his or her personal vehicle to provide for-hire transportation services for passengers matched through a TNC digital network. A TNC driver need not be an employee of a TNC.” Id. A TNC vehicle is a motor vehicle used to provide TNC services through a TNC network that is:

(1) Owned or leased by the TNC driver, or otherwise authorized for use by the TNC driver to provide TNC services, and is not wholly owned or leased by a TNC;
(2) Not licensed as a taxicab, limousine, horse-drawn carriage, pedicab, general charter tour vehicle, sightseeing tour vehicle, courtesy vehicle, non-emergency medical vehicle, airport shuttle, or any other classification of for-hire vehicle as provided under Article III of this chapter or licensed by any other political subdivision or the Louisiana Public Service Commission;

Therefore, TNCs, like Rasier/Uber, are transportation companies that have developed proprietary software that enables smartphone users to hail rides via the internet from a member of the TNC’s fleet of contractor drivers. The TNCs market Istheir services under the company’s trade name, process payments from riders, and provide confirmation receipts once a ride is complete.

The City’s ordinances also reveal that the City does not regulate TNCs like taxicab companies. That is, unlike its licensure of taxicabs, the City’s ordinances permit TNCs to self-regulate and to ensure that its drivers satisfy the City’s permitting standards. For example, a TNC driver does not obtain his Certificate of Public Necessity and Convenience/CPNC or driver’s permit through the City. Rather, he obtains licensure by virtue of his contractual affiliation with the TNC, which serves as the de facto regulatory authority for its drivers. Further, the TNC is tasked with performing criminal background checks and drug testing on its drivers. Moreover, each TNC is required to maintain a registry of all employed or contracted TNC drivers and to provide an updated list of drivers to the City each month. The TNC registry shall include each TNC driver’s: 1) full name; 2) date of birth; 3) Louisiana driver’s license number; 4) license plate number of the vehicle used by the driver to provide TNC services; and, 5) active dates of employment. See City Code Section 162-1709. TNC drivers, unlike taxicab drivers, do not hold city-issued occupational licenses.

On February 3, 2016, the New Orleans Advocate filed a public records request with the City seeking both Raster’s TNC driver registry as well as additional trip data submitted by all TNCs' operating in Orleans Parish. The City, on February 24, 2016, informed Rasier that it had received the Advocate’s request, concluded that the requested information was not exempt from disclosure, and 1¿noted that it intended to comply with the request. The City did note, however, that it intended to redact TNC driver’s license numbers and birth dates prior to disclosure. The City, accordingly, notified Rasier that it would be disclosing all of its drivers’ names, vehicle registration/license plate numbers, and dates of employment. Rasier opposed the disclosure, arguing that the information to be released contained information that was exempt from Louisiana’s Public Records Act.

On March 1,2016, Rasier and John Doe, individually and on behalf of other similarly situated TNC drivers, simultaneously filed separate verified petitions seeking temporary restraining orders and injunc-tive relief seeking to prohibit the City’s compliance with the Advocate’s public records request. Rasier asserted that the requested information is protected by the Public Records Act’s trade secret exemption, while Mr. Doe asserted that the release of the requested information would violate his constitutional rights to privacy. See La. Const. Art. 1, Section 5; La. Const. Art. XII, Section 3; La. R.S. 44:3.2. Temporary restraining orders were issued in both matters. The two suits were subsequently consolidated prior to the preliminary injunction hearing.

On May 6, 2016, the district judge conducted a hearing on the appellants’ request for a preliminary injunction and took the matter under advisement. The district judge subsequently issued a judgment on July 8, 2016 that granted the ^appellants’ request for a preliminary injunction enjoining the City’s release of the aggregate trip data, but denied their request with respect to the redacted driver registry information. The City did not appeal that portion of the judgment which enjoined it from releasing the aggregate trip data. This portion of the judgment, accordingly, is now final. See La. C.C.P. art. 3612 C; Elysian Fields Church of Christ v. Dillon, 08-0989, p. 7 (La. App. 4 Cir. 3/18/09), 7 So.3d 1227, 1231-1232. Rasier and Mr. Doe, on the other hand, appeal that portion of the judgment that denied their request to enjoin the release of the redacted driver registry information. The appellants timely secured a suspensive appeal and persuaded the district judge to stay the effect of her July 8, 2016 judgment until this Court acts upon appellants’ appeal.

II

“A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits.” Smith v. Brumfield, 13-1171, p. 5 (La. App. 4 Cir. 1/15/14), 133 So.3d 70, 74, quoting Elysian Fields, supra. Injunctive relief is an equitable remedy, which is ordinarily only available when a party has no adequate legal remedy. Cf. West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665, 670 (La. 1967) on reh’g (3/25/68) (“By adequate remedy at law is meant one which is as speedy, efficient, and complete as the remedy in equity.”). See also C. Napoo, Inc. v. City of New Orleans, 06-0603, p. 6 (La. App. 4 Cir. 3/7/07), 955 So.2d 155, 160 (“An injunction is a harsh, drastic remedy that should only issue where the petitioner is threatened with irreparable harm and has no adequate remedy at law.”).

A "court may hear an application for a preliminary injunction ... upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases.” La. C.C.P. art. 3609. “A preliminary injunction shall not issue unless notice is given to the adverse party and an opportunity had for a hearing.” La. C.C.P. art. 3602. Ordinarily, to prevail in the district court on a petition for preliminary injunction, the petitioner is required to establish by prima facie evidence that: 1) he will suffer irreparable injury, loss, or damage if the motion for preliminary injunction is not granted; and 2) he is entitled to a preliminary injunction through at least a showing that he will likely prevail on the merits of the case. See Historic Restoration, Inc. v. RSUI Indem. Co., 06-1178, p. 11 (La. App. 4 Cir. 3/21/07), 955 So.2d 200, 208; La. C.C.P. art. 3601. The prima facie standard of proof to obtain a preliminary injunction is less than that required for a permanent injunction. See Smith, 13-1171 at p. 6, 133 So.3d at 74.

In order to prove that irreparable harm, will befall a party from the non-issuance of a preliminary injunction, the petitioning party must show that “money damages cannot adequately compensate for the injuries suffered and that the injuries ‘cannot be measured .by pecuniary standards,’ ” Historic Restoration, 06-1178 at p. 11, 955 So.2d at 208 (quoting Saun ders v. Stafford, 05-0205, p. 6 (La. App. 4 Cir. 1/11/06), 923 So.2d 751, 754). “[M]ere inconvenience is not enough to show irreparable injury needed for the issuance of a preliminary injunction.” Hobbs v. Gorman, 595 So.2d 1264, 1266 (La. App. 4th Cir. 1992). However, in Jurisich v. Jenkins, 99-0076, p. 4 (La. 10/19/99), 749 So.2d 597, 599, the Supreme Court established an exception to the irreparable harm requirement for instances when a plaintiff requests a prohibitory injunction that seeks only to order compliance with a prohibitory law. The requisite showing of irreparable injury is dispensed with “when the conduct sought to be restrained is unconstitutional or unlawful, ie., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right.” Jurisich, 99-0076, p. 4, 749 So.2d at 599, citing to South Cent. Bell Tel. Co. v. Louisiana Pub. Serv. Comm’n, 555 So.2d 1370 (La. 1990). Thus, under Jurisich, “[o]nce a plaintiff has made a prima facie showing that the conduct to be enjoined is repro-bated by law, the petitioner is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists.” 99-0076, p. 4, 749 So.2d at 599.

“A trial court has broad discretion in the granting or denial of a preliminary injunction, and will not be disturbed on review absent a clear abuse of that discretion.” Yokum v. Pat O’Brien’s Bar, Inc., 12-217, p. 6 (La. App. 4 Cir. 8/15/12), 99 So.3d 74, 80 (citing Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 493 (La. 1979)) (internal quotations omitted). This “broad standard is, of course, based upon a conclusion that the trial court committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion.” Yokum, 12-0217 at p. 7, 99 So.3d at 80 (citing South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent to Own, Inc., 07-0599, pp. 4-5 (La. App. 4 Cir. 2/27/08), 980 So.2d 89, 93). Absent a clear abuse of discretion, the denial of a preliminary injunction will not be overturned on appeal. See Oestreicher v. Hackett, 94-2573, p. 3 (La. App. 4 Cir. 5/16/95), 660 So.2d 29, 31.

Ill

On appeal, the appellants raise two assignments of error respecting the district judge’s refusal to enjoin the release of the redacted driver registry information. The appellants first argue that the redacted driver information is a protected trade secret, and thus exempt from release under Louisiana’s Public Records Act. See La. R.S. 44:3.2. A release of this information in violation of this statutory exemption, they contend, would result in irreparable harm to Raster’s business operation. Having reviewed the redacted driver registry information in light of Louisiana’s Public Records Act, we conclude that the clear statutory language does not compel the protection of the redacted driver information. The district judge, accordingly, did not abuse her discretion in refusing to enjoin the release on this basis.

The appellants next assert that Mr. Doe has a constitutionally protected right of privacy in the information, contained in the redacted driver registry information and that release of this information will cause him irreparable harm. Having reviewed the evidence and applicable law, we conclude that the district judge abused her discretion in refusing to enjoin the release on privacy grounds. Specifically, Section 162-49, of New Orleans’ City Code, clearly establishes the [9ambit of what the City may release to the public with respect to driver data. This Section, therefore, controls the scope of the public records request for driver registry data in this case as well as the nature of the information the City may release to the Advocate. To the extent that the Advocate’s request exceeds the scope of publicly releasable information delineated in Section 162-49, then such request should have been refuséd by the City, or enjoined by the district judge.

IV

We now examine the evidence introduced by the parties at the hearing on appellants’ request for a preliminary injunction. Rasier, in support of its motion, introduced an affidavit signed by Tom Ma-guire, General Manager for Uber Technologies, Inc., its parent company and sole member. Mr. Maguire avers that:

Uber is a technology company that creates a mobile app-based digital network that enables registered users to connect with third-party transportation providers. Using Uber’s smartphone application (the “Uber App”), a user can request transportation in as little as two taps on his or her smartphone. If a third-party transportation provider accepts a rider’s request, the Uber App helps the two persons find each other. The Uber App also helps the rider pay the transportation provider after the ride is complete. Rasier licenses the Uber App and other related software from Uber and uses it to operate a transportation network company (“TNC”) in New Orleans and elsewhere.

| inMr. Maguire notes that in New Orleans the Uber App allows riders to connect with ride services such as uberX, uberXL, and uberBLACK, but notes that Rasier does not own any of the vehicles. Rather, Mr. Maguire avers that Rasier licenses the Uber App to third-party transportation providers, ie., drivers, who pay Rasier a portion of the payments they receive from riders in exchange for access to the Uber App network. Notably, Mr. Maguire also states: “Rasier and its affiliates spend significant time and money identifying and recruiting persons to use the Uber App as drivers. For example, Rasier and its affiliates have negotiated with local businesses to provide discounts and other perquisites to the third-party transportation providers that use the Uber App. From time to time, Rasier and its affiliates also offer monetary and other incentives to attract new drivers.”

Mr. Maguire also asserts that “Rasier and its affiliates spend significant time and money attempting to garner ride requests from riders in the New Orleans market. Rasier and its affiliates offer monetary and other incentives to encourage new riders to use the Uber App.” Mr. Maguire contends that a release of the driver’s registry information “would be of immense value to Rasier’s competitors.” This is so because the driver’s list “would offer competitors insight into the size of Rasier’s New Orleans operations, and a shortcut to poach potential driver-partners,” Mr. Maguire states that a competitor can use the requested information to “assess the effect of its own promotions/recruiting campaigns or Raster’s own promotions/recruiting campaigns.”

| nFurther, Mr. Maguire asserts that release of the requested information “will provide valuable information to potential competitors regarding whether to expand to New Orleans and how much to invest doing so.” He also contends that taxi companies use the information “to better decide where to allocate their resources to try to compete with the services offered through drivers using the Uber App.” Raster has taken steps to keep the information, which “is not publicly known or readily ascertainable,” confidential and secure because of the competitive harm that would result from the release of the requested information. Its efforts at protecting this information have also been motivated by the fact that it has invested and continues to invest “substantial amounts of time and effort into the development of the information, the release of which would cause Raster and its affiliates irreparable competitive harm.”

Mr. Maguire also avers that a redacted release of the driver registry information would be “insufficient,” because some of Raster’s drivers have reported receiving at their home address harassing mailings from the Taxicab Legal Fund. He contends that as a result of a prior release of driver registry information, the Taxicab Legal Fund sent these mailings to Uber drivers in an effort to scare them into thinking that they were breaking the law by driving for Uber. In support of this assertion, Mr. Maguire attaches a copy of one such mailing. The mailing states:

If you are driving for UberX without the proper license, you may be breaking the law.
hi)A lawsuit seeking monetary damages has been filed against UberX drivers. Lawsuit 2016-905 claims that some UberX drivers are in violation of state law that requires for hire vehicles transporting passengers to have a valid Louisiana Class “D” Chauffer’s license or a Commercial Driver’s license that encompasses Class “D” Chauffer’s license privileges.

Aside from introducing into evidence a copy of the foregoing mailing, it does not appear that Mr. Doe introduced any other evidence at the preliminary injunction hearing. In his verified petition, however, he asserts that he is an Uber driver and, in connection therewith, he has provided Uber with his full name, home address, birth date, driver’s license number, vehicle license plate number, make and model of his personal vehicle, and social security number. He also averred that as an Uber driver, he has always believed and expected that his personal information would be kept confidential by Raster and provided to the City solely to comply with the City’s TNC ordinances. Mr. Doe, however, contends that he has received unwanted harassing mailings at his home the intent of which was to scare him into thinking that he was breaking the law by driving for Uber. Mr. Doe contends that he will suffer further harassment should the requested information be released. He, therefore, contends that release of the redacted driver registry information will violate his constitutionally protected privacy interests.

It does not appear from the record that the City introduced any exhibits at the hearing on appellant’s request for a preliminary injunction.

V

11RIn this Part, we explain why the district judge did not err when she concluded that the redacted driver registry information is not protected by the public record law’s trade secret exception.

A

Article XII, Section 3 of the Louisiana Constitution provides that “no person shall be denied the right to examine public documents, except in cases established by law.” This constitutional provision has been codified in the Public Records Act, LSA-R.S. 44:1, et seq., which includes in its definition of “public records” all docu-mentaiy materials “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 by a public body.” La. R.S. 44:1A(2)(a). Section 31. of Title 44 of the Louisiana Revised Statutes provides:

A. Providing access to public records is a responsibility and duty of, the appointive or elective office of a custodian and his employees.
B. (1) Except as otherwise -provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person of the age of, majority may inspect, copy, or reproduce any public record.
(2) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter,.any person may obtain a copy or reproduction of any public record.
(3) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

|14By the very language of the act, it is clear that the legislature sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. See Angelo Iafrate Construction, L.L.C. v. State, Department of Transportation and Development, 03-0892, p. 4 (La. App. 1 Cir. 5/14/04), 879 So.2d 250, 254. The language evinces “no intent on the part of the legislature to qualify, in any way, the right of access,” Id. As with the constitutional provision, the Public Records Act should be construed, liberally, and any doubt must be resolved in favor of the right of access. See Landis v. Moreau, 00-1157, p. 4 (La. 2/21/01), 779 So.2d 691, 694. The right of access to public records is fundamental; therefore, access may be denied only when the law specifically and unequivocally denies access. See Hilliard v. Litchfield, 01-1987, p. 4 (La. App. 1 Cir. 6/21/02), 822 So.2d 743, 746.

All exceptions, exemptions, and limitations to the laws pertáining to public records and their disclosure pursuant to the Public Records Act must be provided for in the act or in the Louisiana Constitution. See La. R.S. 44:4.1. For example, Section 32 B of Title 33 of the Louisiana Revised Statutes recognizes that portions of the requested material may be nonpublic records and allows the custodian the option to separate that portion from the requested material. See Elliott v. District Attorney of Baton Rouge, 94-1804 (La. App. 1 Cir. 9/14/95), 664 So.2d 122, 125-126. At issue in this case is the exemption that allows for the redaction of proprietary and trade secret information,- The Public Records Act does not define the term “trade secret.” However, Section 1431 (4) of Title 51 of the Louisiana Revised Statutes defines trade secret as:

(4)“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and
(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

As for the Public Records Act, Section 3.2 A of Title 44 of the Louisiana Revised Statutes clarifies that the Act shall not be construed to require the disclosure of: 1) “proprietary or trade secret information pertaining to any code, pattern, formula, design, device, method, or process which is proprietary;” or, 2) “trade secret information which has been submitted to a public body by the developer, owner, or manufacturer of a code, pattern, formula, design, device, method, or process in order to obtain or retain approval of such code, pattern, formula, design, device, method, or process for sale or use in this state.” As with any exemption to the Public Records Act, the trade secret exemption is in derogation of the public’s right to be reasonably informed and must be narrowly interpreted. See Angelo Iafrate, 03-0892, p. 5, 879 So.2d at 254.

B

In this case, the appellants argue that the district judge erred in refusing to conclude that the redacted driver registry information is not an exempted trade secret under the Public Records Act. They contend that the information falls [ 11¾within the scope of the exemption because it comprises a collection of data that derives independent economic value from not being generally known to competitors who can obtain economic value from its disclosure or use, and Rasier has taken efforts that are reasonable under the circumstances to maintain its secrecy.

Our review of the proposed information to be released, which in this case comprises the driver’s name, motor vehicle registration or license plate numbers, and active dates of employment, in connection with the clear language of Section 3.2 A indicates that the district judge did not err in refusing to grant a preliminary injunction on these grounds. Simply put, while the redacted driver registry information might qualify as a trade secret under the definition of La. R.S. 55:1431, it does not' fit within the La. R.S. 44:3.2’s additional restrictions. This is to say, the redacted driver registry information cannot be considered a protected trade secret under the clear language of the Public Records Act because it: 1) does not pertain to a code, pattern, formula, design, device, method, or process; or, 2) was not submitted to the City in order to obtain or retain approval of such code, pattern, formula, design, device, method, or process for sale or use in this state. The redacted information, undoubtedly, holds economic value to Rasier and it has taken steps to insure its secrecy, but Section 3.2’s clear language indicates that the information is subject to disclosure under the Public Records Act because it cannot be considered a code, pattern, formula, design, device, method, or process. The 117district judge, accordingly, did not abuse her discretion when she declined to issue a preliminary injunction on these grounds.

VI

In this Part, we explain why the district judge abused her discretion when she refused to grant the preliminary injunction on privacy grounds.

A

Article I, Section 5 of the Louisiana Constitution expressly prohibits unreasonable invasions of privacy. The right to privacy in Louisiana has been described as the right to be let alone and to be free from unnecessary public scrutiny. See Capital City Press v. East Baton Rouge Parish Metro. Council, 96-1979, p. 8 (La. 7/1/97), 696 So.2d 562, 566. The right to privacy protects varied interests from invasion. See Angelo Iafrate, 03-0892, p. 5, 879 So.2d at 255. Among the interests protected is the individual’s right to be free from unreasonable intrusion into his seclusion, solitude, or private affairs. See Angelo Iafrate, 03-0892, p. 5, 879 So.2d at 255. The right is not absolute; it is qualified by the rights .of others. Id. The right to privacy is also limited by society’s right to be informed about legitimate subjects of public interest. Id.

In ascertaining whether individuals have a reasonable expectation of privacy that is constitutionally protected, a court must determine not only whether the individual has an actual or subjective expectation of privacy, but whether that expectation is also of a type which society at large is prepared to recognize as being reasonable. Local 100, Service Employees’ Int’l Union v. Forrest, 95-19541 (La. App. 1st Cir. 5/10/96), 675 So.2d 1153, 1156. When a request for public records is at issue, the custodian or the individual claiming the privacy right must prove that there is a reasonable expectation of privacy against disclosure of the information to a person entitled to access to the public information. If, and only if, a reasonable expectation of privacy is found, the court must weigh or balance the public records disclosure interest against the privacy interest. Webb v. City of Shreveport, 371 So.2d 316, 319 (La. App. 2nd Cir. 1979). In these circumstances, however, disclosure is warranted only when the public’s right of access is “sufficiently compelling to override” the individual’s right to privacy. Angelo Iafrate, 03-0892, p. 13, 879 So.2d at 260.

B

The appellants argue that Mr. Doe has a protectable right of privacy in his name, his motor vehicle registration or license plate numbers, and active dates of employment, and that the district judge abused her discretion when she refused to shield this information from release. They, accordingly, argue that Mr. Doe, in light of the averments in his verified petition and Mr. Maguire’s affidavit, has a subjective expectation that the requested information will remain private and undisclosed to the public. This expectation, they also contend, is objectively reasonable in light of the City’s TNC regulatory framework. The appellants additionally contend that Mr. Doe’s privacy interests outweigh the public’s interest in disclosure. And, given that the purported information release violates Mr. Doe’s constitutional right to privacy, the appellants argue that they need not establish the ^presence of irreparable harm in this case. See Jurisich, 99-0076, p. 4, 749 So.2d at 599.

Having reviewed the record in light of the applicable law, we conclude that the district judge abused her discretion when she refused to grant the preliminary injunction on the grounds that release of the redacted driver registry information would violate Mr. Doe’s right to privacy under Article I, Section 5 of the Louisiana Constitution. Here, Mr. Doe’s verified petition clearly evinces his subjective expectation of privacy: “As an Uber driver, Mr. [Doe] has always understood, believed, and expected that his personal and confidential information was to be kept in strict confidence and only provided to the City in order for Rasier to comply with the specific City ordinance that provides for and regulates TNCs.” He further states that he “has always understood, believed, and expected that such information was to be kept in strict confidence and not disclosed to the general public unless some specific cause arose that compelled such disclosure.”

Having reviewed the applicable City ordinances respecting TNCs, we conclude that the district judge erred in failing to conclude that Mr. Doe’s expectation of privacy was a reasonable one. Specifically, City Code Section 162-49 legislatively delineates which documents respecting taxicab and TNC drivers are to be made available to the public. With regards to taxicab and other types of regulated for-hire vehicles, Section 162-49 (a) provides: “A record of the issuance of certificates of public necessity and convenience and driver’s permits is to be maintained by the department of public safety and permits to be available to the |anpublic at all times. The record shall include the names and addresses of the certificate holders or per-mittees and the number of certificates or permits.” Thus, Section 162-49 (a) provides clearly that the public is entitled to discover the names of CPNC and driver’s permit holders. Notably, City Code Section 162-49 (b) applies to TNCs yet draws a narrower informational ambit: “A record of the issuance of transportation network company permits is to be maintained by the department of safety and permits to be available to the public at all times. The record shall include the names and addresses of the permittees and the number of transportation network company vehicles associated with each permit.” Therefore, Section 162-49 draws a distinction between the type of information available to the public concerning TNC drivers and other for-hire vehicle drivers.

It is clear from the City’s statutory framework that Rasier is the TNC permit-tee. Rasier, unlike Mr. Doe, is a TNC. See City Code Section 162-1700. In contrast with Mr. Doe, Rasier is obligated by City ordinance to obtain a TNC permit. See City Code Section 162-1701 (“No TNCs shall operate without first having applied for and received a TNC permit in the manner provided in this article.”). Mr. Doe is the driver of a TNC vehicle. See City Code Section 162-1700. His licensure flows from his relationship with Rasier, not from an application submitted to the City. Not surprisingly then, unlike its treatment of holders of City-issued CPNC’s and driver’s permits, the City’s statutory scheme 121 shields Mr. Doe’s personal information from public discovery. See City Code Section 162-49 (b). In this case, Section 162-49 (b) reflects a legislative choice to limit the ambit of potentially releasable information to the names and addresses of TNC permittees and the number of TNC vehicles associated with each permit. The legislative choice evinced by the plain language of Section 162-49(b), therefore, establishes that Mr. Doe had a reasonable expectation of privacy against disclosure of the redacted driver registry information.

Lastly, we hold that the district judge erred when she failed to conclude that Mr. Doe’s privacy interests were outweighed by the public’s right to know his name, vehicle information, and dates of employment. The purpose of the Public Records Act “is to keep.the public reasonably informed about how public bodies conduct their business and how the affairs of government are handled.” Angelo Iafrate, 03-0892, p. 13, 879 So.2d at 260. The information sought to be released touches upon how Rasier, a private entity, conducts its business. The record indicates, however, that Mr. Doe has been, due to a prior release of this information, the recipient of harassing mailings. It does not take a wild leap of logic to infer that Mr. Doe might be subjected to further harassment should the present release of information be allowed. Given the. purely private nature of the information..sought to be released, the past evidence of harassment accompanying prior releases, and the legislative restrictions found within- Section 162-49(b), we conclude that the district judge, erred in failing to conclude that Mr. Doe’s right to |22privacy in the driver’s registry information outweighs any public interest there might be in disclosure of such information.

The district judge, therefore, erred in failing to-conclude that release of the driver’s registry information would result in a violation of Mr. Doe’s constitutionally protected right to privacy; And having determined that the proposed information release violates Mr. Doe’s constitutional right to privacy, we also conclude that Mr. Doe need not establish the presence of irreparable harm in this case. See Jurisich, 99-0076, p. 4, 749 So.2d at 599. The district judge, accordingly, abused her discretion in refusing to grant Mr. Doe’s request for a preliminary injunction.

DECREE

The district court’s July 8, 2016 judgment in favor of Rasier, LLC, and John Doe and against the City of New Orleans is affirmed in part and reversed in part. We reverse that portion of the July 8, 2016 judgment that denied Rasier, LLC, and John Doe’s request for a preliminary injunction enjoining the release of the redacted driver registry information.' Accordingly, Rasier, LLC, and John Doe’s request for a preliminary injunction is granted and the City of New Orleans is enjoined from releasing the redacted driver registry information in connection with the New Orleans Advocate’s February 3, 2016 public records request. We affirm the district court’s July 8, 2016 judgment m all other respects.

AFFIRMED IN PART/REVERSED IN PART

      . Retired Judge Marion F. Edwards served as judge pro tempore on this matter through March 31, 2017, and thereafter, as judge ad hoc by order of the Louisiana Supreme Court dated March 28, 2017.

      . Subpart (3) of this section concerns limousines and is inapplicable to the present matter.

      . Since the consolidation order, Rasier and Mr. Doe have submitted joint pleadings and memoranda. Neither Rasier nor Doe have set out opposing arguments, opting instead to present a united front before the district court and on appeal, We, accordingly, refer to the parties collectively as appellants.

      . Our review of the record indicates that the parties attached several exhibits and affidavits to memoranda filed in the district court. However, the record before us lacks a transcript of the preliminary injunction hearing and does not suggest that all of these attached items were introduced into evidence. Rather, the record as transmitted to us contains only three items that have been formally marked as exhibits and placed in exhibit envelopes. Accordingly, we will not consider the other items that are attached to memoranda yet not formally introduced into evidence. See Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88 ("Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.”)

      . A TNC vehicle "means any motor vehicle being used to provide TNC services through a TNC digital network that is: (1) Owned or leased by the TNC driver, or otherwise authorized for use by the TNC driver to provide TNC services, and is not owned or leased by a TNC ...” City Code Section 162-1700.


text:
    Brideisha HARNESS v. NEW ORLEANS RECREATION DEVELOPMENT COMMISSION
    NO. 2017-CA-0107
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 14, 2017

      Rudy W. Gorrell, Jr., 1215 Prytania St., Suite 223, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    Matthew D. Fraser, ASSISTANT CITY ATTORNEY, Elizabeth S. Robins, DEPUTY CITY ATTORNEY, Adam J. Swensek, CHIEF DEPUTY CITY ATTORNEY, Rebecca H. Dietz, CITY ATTORNEY, 1300 Perdido Street, City Hall—Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins)
   I, This appeal is from the Civil Service Commission judgment of November 30, 2016, granting the motion for summary disposition filed by the New Orleans Recreation Development Commission (“NORD,” the “Appointing Authority” in this matter) to dismiss the plaintiff/appellant’s appeal. After review of the record in light of the applicable law and arguments of the party, we affirm the decision of the Civil Service Commission.

Relevant Facts and Procedural History

Brideisha Harness, the plaintiff, was hired on July 6, 2015, by NORD as a Recreation Site Facilitator in the Athletics Division. On December 17, 2015, the plaintiffs initial six month probationary period was extended for an additional six months, until July 5, 2016. In January 2016, the plaintiff was issued a written reprimand. Represented by counsel, she appealed the reprimand to the Civil Service Commission, arguing that because her six month probationary period had expired she was a permanent employee with the right of appeal and, under the applicable rules, NORD had no authority to extend her probationary period. The Civil Service Commission disagreed, finding that NORD followed the appropriate 12steps under the Rules to extend the plaintiffs probationary status until July 5, 2016. Because of the plaintiffs probationary status, the Civil Service Commission granted NORD’s motion for summary disposition dismissing the plaintiffs appeal. The plaintiff filed a notice of appeal but on January 10, 2017, this court dismissed the plaintiffs appeal as untimely. Harness v. New Orleans Recreation Development Commission, 16-1237 (La. App. 4 Cir. 1/10/17).

On April 12, 2016, the plaintiff was terminated for failing to meet NORD standards during her probationary period. On May 5, 2016, the plaintiff filed an appeal of her termination with the Civil Service Commission. On November 30, 2016, noting that the issue of the plaintiffs probationary status had been determined in its earlier decision, the Civil Service Commission granted NORD’s motion for summary disposition because, as a probationary employee, the plaintiff did not have a right to appeal her termination.

Applicable Law

“Except when there is an allegation of discrimination under Civil Service Rule II, § 4.6, there is no provision for appeal by a probationary employee.” Terry v. Department of Police, 08-1436, p. 3 (La. App. 4 Cir. 10/7/09), 23 So.3d 974, 976 (quoting Walton v. French Market Corporation, 94-2457, p. 3 (La. App. 4 Cir. 4/26/95), 654 So.2d 885, 887). “A ‘regular’ employee is distinguished from a ‘probational’ employee based on whether the working test period is completed.” Terry, 08-1436, p. 4, 23 So.3d at 976 (citation omitted).

| ^Pursuant to Civil Service Rule I, § 1(64), a “regular employee” is one who has completed the working test period and has been appointed to the position in accordance with the Civil Service laws and rules. In turn, a probationary or “working test” employee is one who has been appointed to the position but has not completed the working’ test. Civil Service Rule I, § 1(80); see also La. Rev. Stat. 33:2393 (27) (“regular employee” is employee who has been appointed to position in the classified service after completing work test period). Every person appointed to position of classified service shall be tested by a “working test” which begins immediately upon appointment for a time not less than six months or more than one year. La. Rev. Stat. 33:2417. After the first two months of the working test period, a probationary employee may be removed by the appointing authority if, in the opinion of the appointing authority, the employee is unable or unwilling to satisfactorily perform duties or the employee’s habits and dependability do not merit continued employment. La. Rev. Stat. 33:2417. Although regular employees in the classified service have the right to appeal disciplinary actions to the Civil Service Commission, an employee who has not obtained permanent classified status (i.e., a probationary employee), is not entitled to review of the Appointing Authority’s action by the Civil Service. Terry, 08-1436, 23 So.2d at 977-978.

yDiscussion

On appeal, the plaintiff argues only that the Civil Service Commission erred in granting NORD’s motion for summary disposition because the plaintiff had fulfilled her six month probationary period and was a permanent employee.

The plaintiff is apparently confused as to the matter before the court in this appeal. Specifically, this appeal is from the Civil Service decision of November 30, 2016, wherein NORD’s motion for summary disposition to dismiss the plaintiffs appeal from her termination was granted, Civil Service Commission docket #8546. The plaintiffs appellate brief states, however, that she is appealing the decision wherein the Civil Service determined she was a probationary employee and not entitled to appeal a reprimand, Civil Service Commission docket #8517. The plaintiffs appeal of that decision was not timely filed, see Harness v. New Orleans Recreation Development Commission, 16-1237 (La. App. 4 Cir. 1/10/17), and cannot be resuscitated in this subsequent appeal.

As previously determined, NORD had the statutory authority to extend the plaintiffs probationary period for an additional six months and, as a probationary employee, the plaintiff had no right of appeal. Because the plaintiff had no right to appeal her termination, the Civil Service Commission did not err in granting NORD’s motion for summary disposition.

Conclusion

This appeal is without merit. Accordingly, we affirm the Civil Service Commission decision of November 30, 2016.

AFFIRMED.