author: CRAIN, J.

text:
    RED STAR CONSULTANTS, LLC, and Fepro Fire Protection Co. Ltd. v. FERRARA FIRE APPARATUS, INC.
    NO. 2017 CA 0847
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 08, 2018 Rehearing Denied February 28, 2018
    Brent P. Frederick, Michael T. Beckers, Danielle N. Goren, Baton Rouge, Louisiana, Attorneys for Defendant/Appellant, Ferrara Fire Apparatus, Inc.
    Christian T. Avery, Gonzales, Louisiana and Cody M. Martin, Gonzales, Louisiana and Al J. Robert, Jr., New Orleans, Louisiana, Attorneys for Plaintiffs/Appellees, Red Star Consultants, LLC, and Fepro Fire Protection Co., Ltd.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

Ferrara Fire Apparatus, Inc., appeals a summary judgment ordering it to pay Red Star Consultants, LLC, and Fepro Fire Protection Co., jointly, $576,436.00, pursuant to an oral contract, and dismissing its reconventional demand. Finding genuine issues of material fact, we reverse.

FACTS

Plaintiffs, Red Star and Fepro, instituted this suit claiming Ferrara Fire hired Red Star to assist in marketing and selling fire trucks in China, and hired Fepro, a company based in China, to assist in sales and service matters. Plaintiffs contend their agreements with Ferrara Fire included payment of commissions associated with truck sales. Plaintiffs allege their joint efforts resulted in the sale of four fire trucks. According to plaintiffs, Ferrara Fire was paid more than 2.5 million dollars for the sales, representing 90% of the purchase price for the trucks, with 10% withheld subject to obtaining a product certification required by Chinese authorities (the CCC certification). Plaintiffs claim Ferrara Fire stopped pursuing the CCC certification and has refused to pay the amounts due based on an alleged internal policy of only making commission payments after receiving payment in full. Plaintiffs assert claims on open account, unjust enrichment and detrimental reliance, and seek a mandatory injunction compelling Ferrara Fire to obtain the CCC certification.

Ferrara Fire denied the allegations and alleged plaintiffs' claims are premature because full payment has not been received for the fire trucks. Ferrara Fire also asserted a reconventional demand against plaintiffs and Steve Oubre, who formed Red Star. In the reconventional demand, Ferrara Fire alleged plaintiffs breached their obligation to obtain the CCC certification, causing Ferrara Fire to lose 10% of the purchase price of the trucks. Ferrara Fire alleged Oubre and Red Star breached their obligations to Ferrara Fire by erroneously translating documents to and from Chinese and caused damages exceeding $100,000.00. Ferrara Fire sought damages for breach of contractual duties and detrimental reliance on plaintiffs' representations.

Plaintiffs filed a motion for partial summary judgment seeking the specific amount of $650,402.00 and the dismissal of Ferrara Fire's reconventional demand. They argued Ferrara Fire's documents were prima facie proof of contracts between Ferrara Fire and plaintiffs, and that Ferrara Fire's records established the commissions and expenses owed plaintiffs. Regarding the reconventional demand, plaintiffs asserted Ferrara Fire has no evidence that plaintiffs were contractually bound to obtain the CCC certification or breached any obligation to obtain it, and Ferrara Fire has no competent evidence suggesting plaintiffs or Oubre breached any obligation causing damage to Ferrara Fire.

Ferrara Fire opposed the motion, asserting the existence of multiple genuine issues of material fact precluding summary judgment. Ferrara Fire disputed agreeing to pay commissions to Red Star, claimed any commissions must be reduced by Ferrara Fire's costs and expenses, and claimed to have suffered losses due to errors committed by the parties. Ferrara Fire also claimed plaintiffs sought payment for fees beyond the scope of their contract.

The trial court granted summary judgment in favor of plaintiffs, ordered Ferrara Fire to pay $622,170.00 ($650,402.00 less $28,232.00 attributed to training expenses), and dismissed the reconventional demand. Ferrara Fire filed a motion for new trial, arguing the summary judgment was contrary to the law and evidence. At the hearing on the motion for new trial, Ferrara Fire argued the claimed $650,000.00 included both expenses and commissions, and that expenses and commissions paid "up front" had to be subtracted. The trial court ordered the parties to submit charts based upon the summary judgment evidence showing what was owed and what was paid. The trial court then granted the motion for new trial, again rendered judgment in favor of plaintiffs, ordered Ferrara Fire to pay plaintiffs, jointly, $576,436.00, and again dismissed Ferrara Fire's reconventional demand. Pursuant to Louisiana Code of Civil Procedure article 1915B, the judgment was certified as final with an express finding of no just reason to delay an appeal.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La. 7/10/06), 935 So.2d 669, 686. That is, a motion for summary judgment shall be granted if, after an opportunity for discovery, the motion, memorandum, and supporting documents show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3).

The burden of proof rests with the mover. La. Code Civ. Pro. art. 966D(1). If the mover will bear the burden of proof at trial on the issue before the court in the motion, the burden of showing there is no genuine issue of material fact remains with the mover. See La. Code Civ. Pro. art. 966D(1); Sims v. Maison Insurance Company, 16-1661 (La App. 1 Cir. 9/15/17), 231 So.3d 656, ---- (2017WL4081531). After the mover makes a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating a material factual issue remains. Jones v. Estate of Santiago, 03-1424 (La. 4/14/04), 870 So.2d 1002, 1006. However, if the mover will not bear the burden of proof at trial, the mover need not negate all essential elements of the adverse party's claim, but must point out the absence of factual support for one or more elements essential to the claim. La. Code Civ. Pro. art. 966D(1). Thereafter, the burden shifts to the non-moving party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966D(1). Because the applicable substantive law determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. Bryant v. Premium Food Concepts, Inc., 16-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 82, writ denied, 17-0873 (La. 9/29/17), 227 So.3d 288.

The parties agree there are no written contracts and that plaintiffs' claims are based on alleged oral contracts. In their petition, plaintiffs assert Ferrara Fire agreed to pay Red Star a 3% commission for sales facilitated by Red Star in China. Plaintiffs further assert Ferrara Fire agreed to pay Fepro commissions, fees, and expenses related to sales of Ferrara Fire trucks in China, including payment of the actual cost of obtaining the CCC certification, and payment on a time and material basis for delivery preparation, training, service, and warranty service for Ferrara Fire's products.

A party claiming the existence of a contract has the burden of proving the contract. See La. Civ. Code art. 1831. When a writing is not required by law, an oral contract that exceeds $500.00 must be proven by at least one witness and other corroborating circumstances. La. Civ. Code art. 1846 ; Suire v. Lafayette City-Parish Consol. Government , 04-1459 (La. 4/12/05), 907 So.2d 37, 58 ; Diversified Marine Services, Inc. v. Jewel Marine, Inc., 16-0617 (La. App. 1 Cir. 6/2/17), 222 So.3d 1008, 1014. To meet this burden of proof, a party to the contract may be his own witness and the "corroborating circumstances" may be general, without independently proving every detail of the agreement. See Suire, 907 So.2d at 58 ; Diversified Marine Services, Inc., 222 So.3d at 1014. However, corroboration must come from a source other than the plaintiff. Suire, 907 So.2d at 58.

Through their motion for summary judgment, plaintiffs sought recovery of $650,402.00 under alleged oral contracts. Therefore, plaintiffs will bear the burden of proving at trial both the existence of the oral contracts and the amount owed. On the motion for summary judgment, plaintiffs were required to show there is no genuine issue of material fact that Ferrara Fire is contractually bound to pay the amount claimed.

In support of their motion, plaintiffs submitted affidavits of Oubre and Tsai Wai Man, Fepro's manager, Oubre attested that in negotiating the sale of the four fire trucks, "it was agreed that I would earn a sales commission and that [Fepro] would also earn a commission, in addition to substantial payments to facilitate the delivery of the trucks, provide necessary training, and to provide warranty work and services on the trucks." Similarly, Tsai attested that the negotiated bid prices for the fire trucks included amounts for services necessary to facilitate the sales, including commissions for Fepro and Red Star. Both Oubre and Tsai attested that the commissions were substantially similar to the amounts included on documents Ferrara Fire used to prepare the bids submitted to the buyers, referred to as "stripper sheets."

Plaintiffs submitted two stripper sheets in support of their motion and argue the stripper sheets, as well as Ferrara Fire's dealer cost analysis forms, corroborate the existence of the oral contracts and the amounts owed. The first stripper sheet, dated October 21, 2009, references quote number 10064-0006, and details a bid for building and equipping one fire truck for the price of $929,610.00. Deposition testimony established that the amounts shown on that sheet applied to three of the four trucks sold; therefore, for purposes of these claims, the amounts shown thereon should be multiplied by three. Included in a list of costs is $162,945.00 for "Fepro Expenses and Commissions." The second stripper sheet, also dated October 21, 2009, references quote number 10064-0007, and details a bid for building and equipping one fire truck for the price of $900,000.00. It lists costs of $133,335.00 for "Fepro Expenses and Commissions." Similarly, plaintiffs submitted two dealer costs analysis forms, one for $929,610.00 with a "Dealer Commission" of $163,910.00, and one for $900,000.00 with a "Dealer Commission" of $134,300.00.

Plaintiffs submitted deposition testimony of Jonathan Carroll, who worked for Ferrara Fire in sales until 2011 and prepared the stripper sheets at issue. As far as he knew, the stripper sheets were the only written documentation of Ferrara Fire's agreement regarding commissions and expenses payable to Oubre and Tsai. Carroll also testified the sales that Oubre consulted on were "through Fepro," and Ferrara Fire agreed to pay commissions and expenses only to Fepro. Carroll also explained that the stripper sheet amounts represented commissions and expenses, including any expenses for obtaining the CCC certification.

Plaintiffs also offered deposition testimony of Chris Ferrara, CEO of Ferrara Fire. Ferrara testified that Ferrara Fire entered an oral agreement with Red Star for consulting services, with Oubre being paid through Red Star for his time and expenses traveling to China, but denied any claims that Ferrara Fire owed Red Star or Oubre any sales commissions, stating "Fepro was going to pay [Mr. Oubre] at-or whatever deal he had with Fepro that, you know, that was his deal." Ferrara clarified that Oubre was a sales consultant, and Fepro was the distributor, authorized dealer, and agent in China. Thus, Ferrara explained, Fepro was subject to Ferrara Fire's standard dealer policies and procedures. According to Ferrara, those policies and procedures specify that dealers are responsible for translating relevant documents, for any equipment shortages, and for their own mistakes. Ferrara testified that under the dealer policy, Ferrara Fire would "pay commission to the dealer within seven days after receipt of payment of the full invoiced price," but acknowledged the policy also provided for full payment of commissions when the partial payment of the sale price was due to Ferrara Fire's fault, such as a shortage of Ferrara Fire supplied equipment.

Regarding the CCC certification, Ferrara explained that Ferrara Fire sold trucks in China before the certification was required. When certification became a requirement, Oubre and Fepro agreed to handle it, with Ferrara Fire providing required supporting engineering data. Ferrara provided some of this information, but other information involving trade secrets of component manufacturers could not be provided. Ferrara said the provided documentation was "never enough," leading him to believe that the Chinese government was actually seeking documents in order to copy Ferrara Fire's products. He testified Ferrara Fire agreed to accept the 90% payment for the trucks and continue working through Oubre and Fepro for the CCC certification. Ferrara also testified one of his employees was told by an official with the CCC organization that the certification would "never happen." Based on this, Ferrara Fire was no longer "actively pursuing" certification, which could change if another dealer assumed the obligation and had some assurances of obtaining it. Ferrara testified "again, it was [Oubre] and Fepro's responsibility to get the CCC [certification] as they stated they could."

When asked about the Fepro commission shown on the stripper sheet, Ferrara testified some of the amount was paid and the amount shown would be reduced due to equipment shortages. Ferrara stated Oubre worked as a consultant, presented invoices, and was paid for his time and expenses. Ferrara reiterated that any agreement Fepro made with Oubre to pay Oubre commissions was between those parties. Ferrara admitted if Ferrara Fire was paid the remaining 10% of the truck prices, Fepro would be owed the stripper sheet amounts subject to deductions for advances and amounts for shorted equipment.

In their motion for summary judgment, plaintiffs, jointly, specifically seek $650,402.00 from Ferrara Fire. They have not proven their entitlement to a summary judgment awarding that amount. Any amount that may be due remains in dispute. Additionally, plaintiffs have not presented sufficient corroboration of an oral contract obligating Ferrara Fire to pay the stripper sheet amounts to Red Star. Arguably, the evidence supports an agreement between Ferrara Fire and Fepro that includes commissions. However, the evidence also establishes disputed issues of fact as to the nature and terms of such agreement, particularly the actual amount agreed upon, the conditions of payment, and any deductions. Without making credibility determinations and weighing the evidence presented, it is impossible to determine the amount Ferrara owes either plaintiff; however, courts are prohibited from determining credibility and weighing evidence when deciding motions for summary judgment. See Property In., Ass'n of Louisiana v. Theriot , 09-1152 (La. 3/16/10), 31 So.3d 1012, 1014. Consequently, the summary judgment awarding $576,436.00 to plaintiffs must be reversed.

Similarly, summary judgment dismissing Ferrara Fire's reconventional demand is not appropriate because of genuine issues of material fact as to the parties' agreement regarding the CCC certification, translation of documents, and whether errors were made causing damages to Ferrara Fire. Resolution of these issues will necessarily require credibility determinations and weighing evidence, which, again, are precluded in deciding a motion for summary judgment. See Property Ins. Ass'n of Louisiana, 31 So.3d at 1014. Consequently, this portion of the summary judgment must also be reversed.

Considering this decision, we pretermit discussion of the claim that summary judgment is premature because Ferrara Fire has not yet deposed Tsai.

CONCLUSION

The April 5, 2017 summary judgment ordering Ferrara Fire to pay plaintiffs $576,436.00 and dismissing Ferrara Fire's reconventional demand is reversed. This matter is remanded for further proceedings. Costs of this appeal are assessed to Red Star Consultants, LLC, and Fepro Fire Protection Co., Ltd.

REVERSED.

      Through this appeal Ferrara Fire also seeks review of the trial court's ruling denying its exception of venue. However, such review may only be raised by application for supervisory writ. Lejeune v. Gerace, 15-1492, 2016 WL 2840605, p. 1 (La. App. 1 Cir. 4/27/16) ; see also Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36, 41. Accordingly, the issue of venue is not reviewable herein.


source: Caselaw Access Project

author: CHUTZ, J.

license: Public Domain

text:
    Nathaniel ANDERSON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    2017 CA 0987
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: FEBRUARY 07, 2018
    Nathaniel Anderson, Angola, Louisiana, Petitioner-Appellant, In Proper Person
    Terri Lynn Cannon, Legal Programs Department, Louisiana State Penitentiary, Angola, Louisiana, Counsel for Defendant-Appellee, Louisiana Department of Public Safety & Corrections
    BEFORE: WHIPPLE, C.J., McDONALD AND CHUTZ, JJ.
   CHUTZ, J.

Petitioner, Nathaniel Anderson, an inmate in the custody of the Department of Public Safety and Corrections (DPSC) at the Louisiana State Penitentiary at Angola, Louisiana appeals a district court judgment dismissing his petition for judicial review. For the following reasons, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Petitioner filed a request for administrative remedy (ARP) (No. LSP-2016-0067) complaining that funds totaling $560.00 were withheld from his inmate banking account by prison officials from 2005 to 2015 without his permission or legal authorization. The funds consisted of sales receipts from petitioner's concession booth at the Angola Rodeo. Petitioner requested the return of the funds to his account with interest.

Prison officials denied the ARP on the grounds that "all offenders [selling] hobbycraft [at the Rodeo] have a certain percentage taken out of what they sell[,]" either 20% or 22.39%, depending upon whether the sale was for cash or credit (first step response). For cash sales, the 20% consisted of 4% for state taxes, 5% for parish taxes, and 11% for a commission. If a sale was on credit, an additional 2.39% was withheld for credit card fees. The ARP response further indicated the commission was "for the maintenance of the grounds, buildings and parking area at the Rodeo grounds." Petitioner appealed the decision and was denied relief by the Secretary of DPSC (second step response). He then filed a petition for judicial review in the 19th Judicial District Court reiterating his claim that DPSC illegally deducted or withheld funds from his inmate banking account without authorization.

The matter was assigned to a commissioner , who screened the petition pursuant to La. R.S. 15:1178(B) to determine whether it stated a cognizable claim or cause of action. Concluding the petition raised "a claim subject to judicial appellate review," the commissioner ordered that service be made on DPSC pursuant to La. R.S. 15:1178(C).

DPSC filed an answer generally denying petitioner's claims, which made no reference to any legal authority or regulation supporting the amounts withheld by DPSC. Subsequently, the commissioner issued a report based "on the record alone." Despite earlier finding the petition stated a claim subject to judicial review, the commissioner recommended DPSC's decision be affirmed on the ground that petitioner failed to state a cognizable claim for relief because he failed to set forth a "substantial right violation." Alternatively, the commissioner recommended affirming DPSC's decision because it was neither arbitrary nor manifestly erroneous and was in accord with promulgated departmental regulations. The district court signed a judgment on April 19, 2017, dismissing the petition for judicial review, without prejudice, adopting the commissioner's report as its reasons.

Petitioner filed a motion to set aside the judgment of dismissal. He alleged a due process violation occurred because he was not allowed ten days to traverse thecommissioner's report prior to rendition of the judgment of dismissal. See La. R.S. 13:713(C)(3) (providing a party may file a traversal within ten days after transmittal of the commissioner's recommendations). At the same time, petitioner also filed a traversal of the commissioner's report.

In response, the commissioner issued a supplemental report recommending the April 19 judgment be set aside since petitioner did not receive a copy of the commissioner's report and recommendations until after the judgment of dismissal was rendered. The commissioner also recommended that the district court enter a new judgment after consideration of the original recommendations and petitioner's traversal. In accordance with these recommendations, the district court signed an order on May 23, 2017, setting aside the April 19 judgment of dismissal and rendered a new judgment on May 24, 2017, again dismissing the petition for judicial review, without prejudice. Petitioner now appeals, raising three assignments of error.

DISCUSSION

In his first and second assignments of error, petitioner argues he had "a protected interest" in his inmate banking account that could not be infringed upon without due process. Petitioner contends the withholding of funds from his banking account violated La. R.S. 15:874, which regulates inmate compensation accounts. He also contends DPSC failed to comply with LAC 22:325(F)(3)(a)(vii), which requires inmates be provided with written answers explaining the information gathered or the reasons for the decision rendered in an ARP. Petitioner maintains that, despite the request in his ARP for the basis of DPSC's authority, DPSC failed to explain the statutory or legal basis for its conversion of a portion of his concession sales receipts from the Angola Rodeo.

Petitioner contends all taxes, fees, and commissions due on inmate concession sales should be paid from the Angola Rodeo Fund rather than by inmates. He bases this argument on the following language from Fulford v. Green , 474 So.2d 972, 974 (La. App. 1st Cir. 1985), in which this court discussed the Angola Rodeo Fund:

The gross proceeds of the Rodeo are placed in the Rodeo Fund. After expenses are paid, the Committee designates what amount shall remain in the Rodeo Fund as seed money for the next Rodeo. The balance of the Rodeo Fund is deposited in the [Inmate] Welfare Fund. [Emphasis added.]

Lastly, petitioner asserts the district court dismissed his petition under the erroneous conclusion it involved a suspension of visitation privileges, which does not affect a substantial right, rather than involving a protected property interest, which does affect a substantial right. He argues he is entitled to have the district court issue a judgment fairly addressing the issues raised in his petition. DPSC did not file a brief in this matter either in the district court or this court.

An examination of the record reveals the commissioner stated incorrectly in both his original and supplemental reports that petitioner sought the "reversal of [DPSC's] decision to suspend his visiting privileges." In fact, petitioner raised no issue regarding his visitation privileges in the instant matter. The commissioner did state at a different point in the original report that petitioner "originally complained to the prison administration that the taxes on his concessions were too high" and sought the return of the "overcharged" amount with interest. However, this statement also failed to delineate the actual issue petitioner raised in his ARP and petition for judicial review. Rather than complaining the amounts withheld were too high, petitioner asserted DPSC lacked authority to withhold any amounts whatsoever from his inmate banking account.

The discrepancy between the issue petitioner raised and the commissioner's erroneous characterization of that issue, both in the original and supplemental reports, raises questions concerning whether those reports properly addressed the issue raised by petitioner. Nevertheless, because the record does not support the district court's judgment in any event, as explained below, it is unnecessary for this court to make a determination in this regard.

Under La. R.S. 15:1177(A)(9), DPSC's decision on an ARP may be reversed or modified by the district court "only if substantial rights of the appellant have been prejudiced" because of the administrative decision. In this case, after considering petitioner's traversal, the district court adopted the commissioner's recommendation to dismiss petitioner's petition for judicial review for purportedly failing to state a cause of action or cognizable claim for relief because it did not set forth "a substantial right violation." We disagree.

The conclusion that the petition did not set forth a substantial right violation was incorrect regardless of whether the district court reached its conclusion based on the erroneous belief petitioner's claims merely involved visitation rights or because the court concluded petitioner's claim of an unauthorized withholding of a portion of his concession sales receipts did not affect a substantial right. Prisoners have a property interest in funds in their inmate banking accounts that is entitled to due process protection. Rosin v. Thaler , 417 Fed.Appx. 432, 434 (5th Cir. 2011) (per curiam ) (unpublished); Hutchinson v. Belt , 957 F.Supp. 97, 100 (W.D. La. 1996) ; see also Morris v. Livingston , 739 F.3d 740, 750 (5th Cir. 2014), cert. denied, --- U.S. ----, 134 S.Ct. 2734, 189 L.Ed.2d 772 (2014). The jurisprudence clearly establishes a substantial right is analogous to a due process right, in that it is limited to one in which the petitioner has a "liberty interest," i.e. , a right to or a right to be free from. Wallace v. Louisiana Department of Public Safety & Corrections , 17-0287, p. 5 (La. App. 1st Cir. 9/28/17), 232 So.2d 663, 666, 2017 WL 4316315. Thus, petitioner's claims regarding the alleged withholding of funds from his inmate banking account without legal authorization clearly involved a substantial right. The district court erred in concluding otherwise. Petitioner stated a cognizable claim for relief in his petition for judicial review.

Additionally, the appellate record provides insufficient support for the district court's alternate conclusion that the denial of petitioner's ARP was neither arbitrary nor manifestly erroneous, but "in accord with the promulgated regulations of the [DPSC]." At both steps of the ARP proceedings, DPSC merely outlined its practice of withholding certain percentages of inmate concession sales for taxes, credit card fees, and commissions for maintenance of the rodeo grounds. Despite the requirements of LAC 22:325(F)(3)(a)(vii), DPSC provided no explanation of its authority for this practice.

It is more than probable authority exists for DPSC to withhold taxes and credit card fees from an inmate's sale receipts. There also may be contractual and/or legal authority for DPSC to withhold a commission from the sale receipts for maintenance of the rodeo grounds. However, without reaching any conclusions on these issues, we note at no point in the administrative proceedings, in the proceedings before the district court, or on appeal has DPSC set forth any statute, rule, promulgated policy, or regulation authorizing its practice of withholding these amounts, particularly commissions, from an inmate's sale receipts. Moreover, the administrative record submitted in the district court by DPSC contains a copy of an email from one DPSC employee to another inquiring whether there was any policy supporting the specified deductions from inmate sales receipts. The response indicated there were "no posted policies or directives on file." Further, neither of the commissioner's reports cited to any specific regulation or policy, promulgated or otherwise, authorizing DPSC's actions, despite the statement in the original report that the denial of petitioner's ARP was "in accord with the promulgated regulations of the [DPSC]." This court has no ready means of ascertaining applicable departmental regulations and no such authority has been brought to this court's attention.

Having concluded the district court erred in finding the petition for judicial review failed to state a substantial rights violation and in view of the indication in the administrative record that there may be "no posted policies or directives on file" regarding the deductions made by DPSC, the judgment of dismissal must be reversed. This matter is remanded to the district court for consideration of the merits of petitioner's claims and the basis of DPSC's authority, if any, to withhold the funds at issue.

CONCLUSION

For the reasons assigned, the May 24, 2017 judgment of the district court dismissing the petition for judicial review filed by appellant, Nathaniel Anderson, is reversed, and this matter is remanded to the district court with instructions for the court to consider the merits of the claims raised therein. All costs of this appeal, in the amount of $610.00, are to paid by appellee, the Department of Public Safety and Corrections.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      The office of the Commissioner of the Nineteenth Judicial District Court was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners.

      When an inmate files a petition for judicial review, La. R.S. 15:1178(B) provides the petition should be screened as follows:
      The court, as soon as practicable after receiving the petition, shall review the petition to determine if the petition states a cognizable claim or if the petition, on its face, is frivolous or malicious, or fails to state a cause of action, or seeks monetary damages from a defendant who is immune from liability for monetary damages. [Emphasis added.]

      Louisiana Revised Statutes 15:1178(C) provides "[i]f the court determines that the petition states a cognizable claim, the court shall return the petition to the clerk of court for service of process." (Emphasis added.)

      In his motion for appeal, which was filed on June 5, 2017, petitioner referred to the "final judgment dismissing this Petition for Judicial Review in the above captioned case on April 19, 2017 ." As noted above, the district court set aside the judgment rendered on April 19, 2017, and signed a new judgment on May 24, 2017, dismissing the petition for judicial review. It is well-settled that appeals are favored in the law. An appeal should be maintained unless the ground for dismissal is free from doubt. Castillo v. Russell , 05-2110 (La. 2/10/06), 920 So.2d 863. In this case, it is clear from the motion for appeal and the appellate brief that petitioner, who is representing himself in this matter, intended to appeal from the adverse judgment dismissing his petition for judicial review, irrespective of the date stated. Accordingly, we will treat this appeal as being taken from the judgment of dismissal rendered on May 24, 2017. See Chaney v. Department of Public Safety & Corrections (Office of Motor Vehicles) , 09-1543 (La. App. 1st Cir. 3/26/10), 36 So.3d 328, 330 n.1.

      In his traversal to the commissioner's report, petitioner indicated he signed a "Hobbyshop Agreement Form" in order to obtain the right to sell concessions at the rodeo, but contends it did not put inmates on notice that sales were subject to such taxation.

      In view of this conclusion, we pretermit as moot petitioner's third assignment of error wherein he complains he was denied a ten-day period to traverse the commissioner's reports.


text:
    APACHE CORPORATION v. TALEN'S MARINE & FUEL, LLC, Martin Energy Services LLC and Martin Midstream Partners L.P
    2017 CA 0714
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: FEBRUARY 07, 2018
    Peter B. Tompkins, Donald R. Wing, New Orleans, Louisiana, Counsel for Plaintiff-Appellee Apache Corporation
    Glenn Louis Langley, Julianna Petchak, Parks Parker W. Maxwell, Shreveport, Louisiana, Counsel for Defendants-Appellants Talen's Marine & Fuel, LLC and Martin Energy Services, LLC
    BEFORE: WHIPPLE, C.J., McDONALD AND CHUTZ, JJ.
   CHUTZ, J.

Defendants-appellants, Talen's Marine & Fuel, LLC (Talen) and Martin Energy Services, LLC (MES), appeal the trial court's grant of summary judgment in favor of plaintiff-appellee, Apache Corporation (Apache), awarding a sum of money for duplicate payments Apache paid to defendants in conjunction with a fuel services contract. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 9, 2016, Apache filed a suit to recover duplicate payments it had tendered to Talen pursuant to a Master Service Contract by which Talen had provided fuel to Apache at Talen's dock in Port Fourchon, Louisiana, for vessels performing work on behalf of Apache. According to the allegations of the petition, between January 22, 2010 and March 31, 2012, Talen invoiced Apache twice for amounts of fuel purchases. Each purchase, invoice number, and the dates of the invoice and Apache's tender of payment were set forth in the petition. Since the second invoice Talen sent for an individual purchase contained a letter after the original invoice number, Apache averred that its accounting software did not detect the duplication.

When defendants did not file an answer to Apache's lawsuit, Apache sought and was granted a preliminary default on April 18, 2016. Thereafter, on April 29, 2016, defendants filed an answer, affirmative defenses, and exceptions.

Apache filed a supplemental and amended petition on July 15, 2016, reiterating its claims insofar as defendants' liability for duplicate payments made to Talen and added additional claims against MES. Apache averred that MES invoiced Apache twice for the same specified amounts of seven separate fuel purchases or services, again adding a letter after the numerical portion of the original invoice thereby avoiding detection as a duplicate by Apache's software. Apache also alleged that on ten occasions, due to an incorrect invoice number in its records, Apache mistakenly tendered a second payment to MES for fuel, bulk oil, and other services, which MES "quietly received" without bringing the duplicate payment to Apache's attention. All totaled, Apache alleged that defendants received $105,229.24 in payments that Apache did not owe and for which defendants were bound to repay to Apache.

On September 14, 2016, Apache propounded requests for admissions asking defendants to admit or deny their total indebtedness of $105,229.24 as well as an invoice-by-invoice request of each sum that Apache alleged was due to it as a result of the duplicate payments. In total, 25 requests for admission were propounded. On October 17, 2016, Apache sent a letter to defendants, confirming a two-week extension of time that it had given to defendants to respond to the requests for admission. When the deadline passed, on November 3, 2016, Apache emailed defendants, noting that the October 28, 2016 deadline had passed and requesting that defendants "confirm the responses are on their way."

Having received no reply to its November 3, 2016 email inquiry, Apache filed a motion for summary judgment on November 14, 2016, claiming entitlement to a judgment of $105,229.24 as well as court costs and legal interest. The gist of Apache's rationale was that since defendants had failed to respond to its requests for admissions, the requests were statutorily deemed admitted. Given the admissions, Apache contended that it had established that defendants were liable to restore the overpayments to it.

A hearing on Apache's motion for summary judgment was set for January 6, 2017, but on December 21, 2016, defendants filed an unopposed motion to continue the hearing that the trial court granted.

On January 23, 2017, defendants filed an opposition to Apache's motion for summary judgment in which they maintained that the parties had been actively working to resolve the matter extrajudicially. Defendants also indicated that they had contemporaneously served responses to Apache's requests for admissions. A copy of the responses was subsequently filed into the record on February 3, 2017.

Additionally, defendants attached to its opposition the affidavit of Rick Slone, an MES assistant controller, wherein he admitted MES had "received at least some amount of overpayment from Apache." He also denied the existence of the overpayments as alleged and described in the March 9, 2016 petition, stating, "In particular, it is unknown and in dispute how all overpayments came to be, the method of overpayment, whether any of the alleged overpayments have been rejected [and] sent back to Apache, whether any of the alleged overpayments have been satisfied, and perhaps most importantly, what the total amount of overpayments are." Slone explained that "the particulars of the payment history between the parties are difficult to extract from the financial records."

A hearing was held on February 3, 2017, after which the trial court signed a judgment, granting Apache's motion for summary judgment. The judgment awarded to Apache the amount of $105,229.24, court costs, and legal interest. Defendants appeal.

DISCUSSION

Defendants assert the trial court erred in granting Apache's motion for summary judgment given that outstanding issues of material fact existed, particularly the total amount they owe to Apache for overpayments. They claim that the trial court's implicit conclusion-that the requests for admission were statutorily deemed admitted-was erroneous.

On appeal, appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court's consideration of whether summary judgment is appropriate. Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1005-06. A motion for summary judgment shall be granted only if the pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions admitted for purposes of the motion for summary judgment, show 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(A)(3) & (4). The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1).

In support of its motion for summary judgment Apache relied on the failure of defendants to timely respond to the requests for admissions. Therefore, the initial issue before us is whether the requests for admission were statutorily deemed admitted.

A party may serve upon any other party a written request for the admission of the truth of any relevant matters of fact. La. C.C.P. art. 1466. Generally, the matter is deemed admitted if the party to whom the request is directed does not respond within 30 days after service of the request. La. C.C.P. art. 1467A. Any matter deemed admitted pursuant to La. C.C.P. art. 1467 is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. La. C.C.P. art. 1468. The court may permit withdrawal of an admission when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal of the admission will prejudice him in maintaining his action or defense on the merits. La. C.C.P. art. 1468 ; Hall v. Our Lady of the Lake R.M.C. , 2006-1425 (La. App. 1st Cir. 6/20/07), 968 So.2d 179, 183. It is within the trial court's discretion to determine whether to allow the withdrawal of the admission. See Prestage v. Clark , 97-0524 (La. App. 1st Cir. 12/28/98), 723 So.2d 1086, 1091, writ denied sub norm., Prestige v. Clark , 99-0234 (La. 3/26/99), 739 So.2d 800.

At the hearing on Apache's motion for summary judgment, the following exchange occurred during defendants' argument:

[By defendants' counsel:]
It's my understanding that a motion can be made to withdraw the deemed admissions by filing the actual responses into the record. It's unusual to do. Usually you just ... send them to counsel, which was done in this case. And I believe [Apache] acknowledged that in [its] reply memorandum that the replies were late.
We would ask to be allowed to orally withdraw the admissions by virtue of filing into the record a duplicate copy of exactly what we served on [Apache] on January 23rd.
[By the court:]
Granted.

Although Apache suggests that in granting the motion, the trial court simply intended to allow defendants to file their responses to the requests for admission into the record, we find it unnecessary to second guess the trial court's intent insofar as the scope of its grant of defendants' motion. Since the ruling pertained to discovery matters, the trial court's grant of the oral motion to withdraw the admissions was interlocutory in nature. See Sanders v. J. Ray McDermott, Inc. , 2003-0064 (La. App. 1st Cir. 11/7/03), 867 So.2d 771, 776 n.3. As such, it could be modified by the trial court at any time prior to rendition of a final judgment on the merits. See La. C.C.P. arts. 1841 and 1915B(2); LeBlanc v. Aysenne , 2005-0297 (La. 1/19/06), 921 So.2d 85, 87 n.2. Thus, to the extent the trial court granted the motion to withdraw the admissions, it was at liberty to implicitly reverse its earlier ruling when it rendered summary judgment in favor of Apache, which is what the trial court apparently did.

Without denying that the merits of Apache's motion for summary judgment were not subserved by their late oral motion to withdraw the statutorily deemed admissions, defendants urge that in serving their responses to Apache eleven days before the hearing, Apache was not prejudiced. They contend that in their answers to the petition and the amended and supplemented petition, they denied each allegation that set forth an amount that Apache averred defendants owed for duplicate payments. Since Apache's requests for admissions asked defendants to admit or deny the truth of the same facts that Apache had set forth in the allegations of the petition, defendants reason that Apache was not surprised or unable to prepare for the hearing on its motion for summary judgment. Thus, they claim that the trial court erred by implicitly disallowing them to withdraw the deemed admissions.

In pursuing its motion for summary judgment, Apache relied solely on the deemed admissions to establish its prima facie case of entitlement to judgment. Eleven days before the hearing, Apache received defendants' responses. In response to the request for an admission that defendants owed the total amount of $105,229.24, defendants admitted "to the best of [their] knowledge, at least some amount of overpayment was received by [them] from Apache." The remainder of the request for admission was denied for lack of information sufficient to justify a belief therein. As to the articulated invoiced amounts of duplicate payments set forth over 25 requests for admission, defendants' response to each was that the amount could neither be admitted nor denied and, in an abundance of caution, the response to the request for admission was denied for lack of information sufficient to justify a belief therein. Of the responses, it was only when they were asked to admit that defendants had made no payments to Apache that defendants unequivocally denied the request "as written."

While it is true that Apache was made aware by the answer to the petition and the supplemented and amended petition that defendants denied the substance of the requests for admissions, when 30 days passed without responses to the requests for admissions and, again, when the two-week extension passed without the responses, Apache clearly relied on defendants' failure to respond to the requests for admission and their statutory admission to move for summary judgment. Defendants' responses provided absolutely no information to Apache as to what, if anything, defendants had done to ascertain the amount of money it admitted owing Apache for the duplicate payments. Moreover, defendants did not explain why they failed to either supply their barebones responses to Apache timely or file their motion for withdrawal of admissions before orally moving for that relief during the summary judgment hearing.

Given the dilatory manner in which defendants responded to Apache's claims for recovery of overpayments from inception; that they did not respond to the requests for admissions until four months after they were propounded and eleven days before the hearing; that they failed to explain why they did not provide their barebones responses earlier; and that they waited until the summary judgment hearing to orally move to withdraw the statutorily deemed admissions, we cannot say the trial court abused its discretion by apparently disallowing defendant's withdrawal of admissions subsequent initially orally granting such at the hearing. The record clearly supports the conclusions that, under La. C.C.P. art. 1468, presentation of the summary judgment would not have been subserved; and that Apache would have been prejudiced in maintaining its motion for summary judgment had the trial court granted defendants' oral motion to withdraw the admissions. See Guillory v. Christus Health Central Louisiana , 2016-841 (La. App. 3d Cir. 5/10/17), 219 So.3d 1115, 1118-19, writ denied, 2017-0953 (La. 10/9/17), 227 So.3d 836 (no abuse of discretion in disallowing withdrawal of admissions where defendant had several years to investigate and plaintiff would have been prejudiced by withdrawal).

In light of the admissions, Apache established that defendants were liable to it for $105,229.24. See La. C.C. art. 2299 (a person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it); see also Bossier Parish Sch. Bd. v. Pioneer Credit Recovery, Inc. , 49,525 (La. App. 2d Cir. 1/14/15), 161 So.3d 1007, 1009 (collection agency was required to reimburse former employer of student loan borrower for its overpayment).

In addition to Slone's affidavit, which merely acknowledged the existence of overpayments without identifying any specific amount owed, defendants also offered correspondence from defendants' attorney to Apache stating that defendants were attempting to extrajudicially resolve the matter and admitted that they owed Apache "at least some amount of overpayment." This showing was insufficient to counter the statutorily deemed admission that defendants were liable to Apache for $105,229.24 in overpayments. Thus, defendants failed to produce factual support sufficient to establish the existence of a genuine issue of material fact. See La. C.C.P. art. 966A(3) & D(1). Accordingly, on de novo review, we conclude that the trial court correctly granted summary judgment, awarding to Apache the amount of $105,229.24, court costs, and legal interest against defendants.

DECREE

For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed against defendants-appellants, Talen's Marine & Fuel, LLC and Martin Energy Services, LLC.

AFFIRMED.

      Apache alleged, upon information and belief, that MES had acquired all interest in Talen.

      Although the original petition named Martin Midstream Partners, LP as a defendant, the supplemental and amended petition subsequently deleted allegations of liability against it. The supplemented and amended petition also added allegations that MES was formerly known as L & L Oil and Gas LLC and also formerly known as Midstream Fuel Service LLC. While Apache specifically identified which MES entity that invoiced Apache, since in this appeal MES has not challenged its liability for these entities, we refer to each as MES.

      Slone suggested that MES's difficulty in ascertaining the payment history was due to its acquisition of the former entities by merger.

      Particularly problematic was MES's failure to admit or deny the truth of any of the requests for admissions Nos. 16-21, all of which addressed invoices that MES was alleged to have directly sent to Apache. Specifically, MES failed to offer an explanation of why it was unable to extract information from its own financial records which were unlike the other requests for admission which required examination of the financial records of MES's predecessors in interest. We note that Apache has not raised the issue of the sufficiency of defendants' answers. See La. C.C.P. art. 1467A (answering parties may not give lack of information or knowledge as a reason for failure to admit or deny unless they state that they have made reasonable inquiry and that the information known or readily obtainable by them is insufficient to enable them to admit or deny).


author: PENZATO, J.

text:
    Kevin QUATREVINGT v. STATE of Louisiana, THROUGH the Honorable Jeff LANDRY, Attorney General
    2017 CA 0884
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 8, 2018
    Kevin M. Quatrevingt, Lacombe, Louisiana, Plaintiff/Appellant, In Proper Person
    Adrienne E. Aucoin, Baton Rouge, Louisiana, Attorneys for Intervenor/Appellee State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information
    Jeff Landry, Attorney General, Emma J. DeVillier, Erica M. Schutz, Assistant Attorneys General, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, State of Louisiana
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

Appellant, Kevin Quatrevingt, appeals a judgment of the trial court sustaining the Appellee/Intervenor's, State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, and Office of State Police (DPSC), peremptory exception raising the objection of peremption and dismissing his action with prejudice. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This matter arises out of an incident wherein Appellant pled guilty on January 24, 2006, in Military Court to one count of conduct prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces under Article 134 of the Uniform Code of Military Justice (UCMJ). The conduct for which Appellant pled guilty arose from possession of child pornography, resulting in his conviction and incarceration for approximately nine months in Texas. He was released on October 21, 2006. Upon his release from incarceration for his military conviction, Appellant was given notice by the federal government of his obligation to register as a sex offender in any state in which he would reside. On October 21, 2006, Appellant returned to Louisiana and was notified by the State that he was required to register as a Tier I sex offender.

Although Appellant claims he complied with the registration system until April 2010, he was arrested in the Parish of St. Tammany on May 7, 2007, for failing to register as a sex offender between November 8, 2006, and May 3, 2007, in violation of La. R.S. 15:542. On November 3, 2008, Appellant pled guilty to the offense in the matter entitled "State of Louisiana v. Kevin Michael Quatrevingt," Docket No. 438897, Div. "E" in the 22nd Judicial District Court for St. Tammany Parish, and was sentenced to serve two years at hard labor.

On April 22, 2010, DPSC, through Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information (Bureau), provided written notice to Appellant that the Bureau had determined that his military conviction was comparable to and would equate to a conviction or adjudication of Possession, Production and/or Distribution of Child Pornography pursuant to La. R.S. 14:81.1. The Bureau explained that pursuant to La. R.S. 15:544 and La. 15:542.1 Appellant was determined to be a Tier II offender which required him to register in Louisiana for a period of twenty-five years from the date of his initial registration and perform in-person registration renewals every six months. The notice set forth the manner in which Appellant could appeal the Bureau's determination by submitting a written request for an administrative hearing pursuant to La. R.S. 49:950 et seq. within one year from the Bureau posting its determination on the State Sex Offender and Child Predator Registry (Registry). The Bureau, which was mandated to maintain the Registry pursuant to La. R.S. 15:578(A)(7), posted its determination as to Appellant on April 22, 2010. Appellant did not submit a request for an administrative appeal.

On June 14, 2010, Appellant was arrested for a second offense of failing to register as a sex offender between May 17, 2010, and June 14, 2010, in the Parish of St. Tammany for violating La. R.S. 15:542 and La. R.S. 15:542.1.4. On October 3, 2013, Appellant filed a motion to quash the prosecution against him in the matter entitled "State of Louisiana v. Kevin Michael Quatrevingt," Docket No. 493,820, Div. "F" in the 22nd Judicial District Court for St. Tammany Parish (22nd JDC criminal case). The trial court conducted a hearing on the motion to quash on February 6, 2014, and granted the motion ruling that the military conviction of Appellant was not comparable to a sex offense in Louisiana. In the trial court's oral ruling it stated, "In examining actually what [Appellant] pled guilty to, [Appellant] pled guilty to it under the general article, not to a specific crime which would annunciate a sex offense."

Following the granting of the motion to quash the prosecution stemming from his June 14, 2010 arrest, Appellant attempted to have his name removed from the Registry and the sex offender label removed from his driver's license. The Bureau refused to remove his name, and Appellant filed in the 22nd JDC criminal case a motion for clarification and request for order for removal from Registry. On July 17, 2014, the trial court determined that it had no jurisdiction to have Appellant's name removed from the Registry and denied relief therein.

On September 16, 2015, Appellant, seeking to have his name removed from the Registry, filed a petition and incorporated memorandum for writ of mandamus and declaratory judgment in the matter entitled "Kevin Quatrevingt v. State of Louisiana," Docket No. 2015-13724, Div. "I" in the 22nd Judicial District Court for St. Tammany Parish (22nd JDC civil case). The State filed several exceptions in the 22nd JDC civil case, and the trial court sustained the exceptions of improper subject matter jurisdiction and improper venue, stating that any concerns regarding the Registry were to be brought in the 19th Judicial District Court. Appellant filed a writ application, which this court denied as to the exception of venue and granted as to the exception of subject matter jurisdiction. The supreme court subsequently denied Appellant's writ.

On January 27, 2017, Appellant filed the subject of the present matter, an "Emergency Petition for Extraordinary Relief in the Nature of a Writ of Mandamus, Temporary Restraining Order, Stay Order, and Preliminary Injunction," in Docket No. 654,843, Div. "23" in the 19th Judicial District Court, Parish of East Baton Rouge. Appellant sought an injunction and requested that a writ of mandamus be issued, directed to the Attorney General, to cease infringing upon his constitutional and codal rights, to enjoin the Attorney General from ignoring the ruling made in the 22nd JDC criminal case, to cease any and all present or future attempt to require him to register as a sex offender, and to cease any and all present or future attempt to arrest him for failing to register as a sex offender or any other sex offender related arrest. The Bureau was not named a party by Appellant, but filed a petition to intervene, which was granted by the trial court.

The State, through the Office of Attorney General, filed "State's Dilatory Exceptions of Nonconformity with Petition Requirements of La. C.C.P. art. 891 ; Unauthorized Use of Summary Proceedings for a Petition for Permanent Injunction; and Improper Cumulation of Summary and Ordinary Proceedings; and Peremptory Exceptions of Peremption; Nonjoinder of an Essential Party Pursuant to La. C.C.P. art. 641 ; and No Cause of Action." The State also filed an "Opposition to Preliminary Injunction and Writ of Mandamus." The Bureau maintained that at the first hearing on February 14, 2017, it adopted the exceptions filed by the Attorney General's Office, and its post-hearing memorandum was filed on behalf of the Bureau, a division of DPSC.

At the April 10, 2017 hearing, the trial court granted the peremptory exception raising the objection of peremption and dismissed Appellant's petition with prejudice. The Appellant filed a motion to reconsider with the trial court on April 12, 2017, which the trial court denied. The trial court signed a judgment in accordance with its oral ruling on May 2, 2017. It is from this judgment that Appellant appeals.

ASSIGNMENT OF ERRORS

Appellant claims that the trial court committed the following errors: (1) failing to treat this matter as a writ of mandamus pursuant to La. R.S. 15:544.1 and instead treating it as an appeal of either DPSC's 2010 determination or an appeal by the DPSC of the 2014 ruling of the 22nd JDC criminal case; (2) granting the peremptory exception raising the objection of peremption; (3) failing to apply the doctrine of res judicata; and (4) failing to issue a writ of mandamus to order DPSC to remove him from the Registry.

STANDARD OF REVIEW

A judgment granting a peremptory exception is generally reviewed de novo, because the exception raises a legal question. Metairie III v. Poche' Const., Inc., 2010-0353 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449, writ denied , 2010-2436 (La. 9/16/11), 69 So.3d 1138. However, when exceptions of prescription or peremption have evidence introduced at a hearing, the trial court's finding of fact on the issue is subject to the manifest error standard of review. Lomont v. Bennett , 2014-2483 (La. 6/30/15), 172 So.3d 620, 627, cert. denied , --- U.S. ----, 136 S.Ct. 1167, 194 L.Ed.2d 178 (2016) ; Southern Ins. Co. v. Metal Depot , 2010-1899 (La. App. 1 Cir. 6/10/11), 70 So.3d 922, 925, writ denied , 2011-1763 (La. 10/14/11), 74 So.3d 215. Thus, if the trial court's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Lomont , 172 So.3d at 627 ; Stobart v. State through Dept. of Transp. and Dev. , 617 So.2d 880, 882-83 (La. 1993).

LAW AND DISCUSSION

Peremption is a period of time fixed by law for the existence of a right. The right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. When the peremptive period has run, the cause of action itself is extinguished unless timely exercised. State Through Div. of Admin. v. McInnis Bros. Const. , 97-0742 (La. 10/21/97), 701 So.2d 937, 939. Peremption may not be renounced, interrupted, or suspended. La. C.C. art. 3461.

Peremption is considered a peremptory exception. La. C.C.P. art. 927(A)(2). Public policy requires that rights to which peremption periods attach are to be extinguished after passage of a specified period. Robinson v. Wayne and Beverly Papania and Pyrenees Investments, LLC , 2015-1354 (La. App. 1 Cir. 10/31/16), 207 So.3d 566, 580. Additionally, a peremptive statute totally destroys or extinguishes the previously existing right with the result that, upon expiration of the prescribed period, a cause of action or substantive right no longer exists to be enforced. See Borel v. Young , 2007-0419 (La. 11/27/07), 989 So.2d 42, 49 ; Pounds v. Schori , 377 So.2d 1195, 1198 (La. 1979), superseded by statute on other grounds , La. Acts 2005, No. 192, § 1, as recognized in, Pociask v. Moseley , 2013-0262 (La. 6/28/13), 122 So.3d 533, 539. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Carter v. Haygood , 2004-0646 (La. 1/19/05), 892 So.2d 1261, 1267. Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension. Straub v. Richardson , 2011-1689 (La. App. 1 Cir. 5/2/12), 92 So.3d 548, 552, writ denied , 2012-1212 (La. 9/21/12), 98 So.3d 341, cert. denied, 569 U.S. 918, 133 S.Ct. 1805, 185 L.Ed.2d 811 (2013). As such, the rules governing the burden of proof as to prescription apply to peremption. Id.

Attached to Appellant's petition are several exhibits, including: (1) the April 22, 2010 letter informing Appellant of his need to register as a Tier II offender and the procedure for an appeal of this classification; (2) a September 13, 2010 bill of information from the 22nd JDC for the Parish of St. Tammany, charging Appellant with failure to register as a sex offender from May 17, 2010, through June 14, 2010; (3) a motion to quash dated October 3, 2013, filed by Appellant in the 22nd JDC criminal case; (4) the minutes of the trial court dated February 6, 2014, in the 22nd JDC criminal case; and (5) a partial transcript of the proceedings in the 22nd JDC criminal case on February 6, 2014, which contain the trial court's oral ruling.

In support of its exception of preemption, DPSC introduced the affidavit of Emily Bishop, a criminal record analyst with the Bureau. Ms. Bishop stated that the Bureau's determination that Appellant was to register and notify as a sex offender for twenty-five years was posted on the Registry on April 22, 2010. She also stated that the records of the Bureau reflected that Appellant did not submit a request for administrative appeal. DPSC also introduced documents attached to a previous writ application filed by Appellant.

As part of its oral reasons for judgment, the trial court thoroughly discussed the chronology of the case making the following observations and factual findings. The trial court determined that on January 24, 2006, Appellant pled guilty to one count of conduct prejudicial to the good order under Article 134 UCMJ for wrongfully and knowingly possessing visual depictions of minors engaging in sexually explicit conduct in Military Docket No. 0504531517. He was sentenced to confinement and notified of his obligation to register as a sex offender upon release. On October 21, 2006, Appellant established his residence in Louisiana. The Bureau notified him of his obligation to register as a Tier I sex offender. He failed to register and pled guilty on November 3, 2008, in Docket No. 438,897 in the 22nd Judicial District Court, Parish of St. Tammany, for failing to register as a sex offender for the time period of November 8, 2006, through May 5, 2007, pursuant to La. R.S. 15:542 and was sentenced to two years imprisonment. On April 22, 2010, the Bureau sent notice to Appellant that under La. R.S. 15:542.1.3(B) his military conviction was comparable to La. R.S. 14:81.1, pornography involving juveniles, that he was required to register for twenty-five years with semi-annual reviews, and that he had one year to appeal this determination pursuant to La. R.S. 49:964 in the 19th Judicial District Court. Appellant acknowledged receipt of this notification, but did not appeal this determination. He was charged again with failure to register as a sex offender from May 17, 2010, to June 14, 2010, in the 22nd JDC criminal case. Approximately three years later on October 3, 2013, Appellant filed a motion to quash in that matter arguing that he had no duty to register. On February 6, 2014, the trial court in the 22nd JDC criminal case granted the motion to quash. The trial court in that case stated that Appellant pled under the general article 134, not to a specific crime which would enunciate a sex offense, and dismissed the criminal charges. Subsequently, Appellant filed in the 22nd JDC criminal case a motion for clarification and removal from the Registry. On July 17, 2014, the trial court determined that it had no subject matter jurisdiction to determine that Appellant had no duty to register or remove Appellant from the Registry. On January 27, 2017, Appellant filed the instant action for mandamus and injunctive relief in the 19th JDC, seeking to be removed from the Registry and claiming he had no duty to register as a sex offender.

After reviewing the entirety of the record, we find no manifest error in the factual findings of the trial court. Therefore, we must decide if the trial court was legally correct in ruling that the Bureau is not bound by the 22nd JDC criminal case ruling and whether the Bureau must remove Appellant from the Registry.

Granting of Exception Raising the Objection of Peremption

Louisiana's sex offender registration and notification provisions (commonly referred to as "Louisiana's Megan's Law") were originally enacted in 1992 and are found in La. R.S. 15:540, et seq. See 1992 La. Acts, No. 388, § 1. At that time, La. R.S. 15:542(A) provided "[a]ny adult residing in this state who has pled guilty or has been convicted of any sex offense shall register with the sheriff of the parish of the person's residence." Moreover, "sex offense" for the purpose of registration and notification was defined in La. R.S. 15:542(E) as "a violation of any provision of Subpart C of Part II, Subpart B of Part IV, or Subpart A(1) or A(4) of Part V, of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950." At that time, La. R.S. 14:81.1 (pornography involving juveniles) constituted a "sex offense" as defined by La. R.S. 15:542(E) as it was included in Subpart A(1) of Part V, of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950.

When Appellant was convicted in 2006, La. R.S. 15:542(A)(1) provided that "[a]ny adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of any sex offense ... shall register with the sheriff of the parish of the person's residence." At the time of Appellant's conviction, "sex offense" for the purposes of registration and notification included a conviction for a violation of La. R.S. 14:81.1 (pornography involving juveniles).

The sex offender registration and notification requirements "are mandatory and shall not be waived or suspended by any court." La. R.S. 15:542(F)(1). Any person who is convicted or adjudicated of an offense under the laws of another state, or military, territorial, foreign, tribal, or federal law for which La. R.S. 15:542 requires registration is compelled to comply with the those requirements. La. R.S. 15:542.1.3(A). Pursuant to La. R.S. 15:542.1.3(B)(2), the Bureau is mandated with determining the appropriate "time period of registration under the provisions of [La.] R.S. 15:544 and the frequency of in-person periodic renewals under the provisions of [La.] R.S. 15:542.1." The determination made by the Bureau "shall be based on a comparison of the elements of the offense of conviction or adjudication with the elements of the most comparable Louisiana offense. The bureau shall post this official notification on the state sex offender and child predator registry." La. R.S. 1542.1.3(B)(2). Therefore, the Bureau is statutorily obligated to review the elements of an offender's non-Louisiana conviction and determine the most comparable Louisiana offense. If the most comparable Louisiana offense requires registration and notification as a sex offender in Louisiana, the out-of-state offender is required to register and notify in Louisiana.

Once the determination by the Bureau is made, the offender may contest that determination pursuant to La. R.S. 15:542.1.3(B)(4), which provides:

Any offender convicted or adjudicated under the laws of another state, or military, territorial, foreign, tribal, or federal law who establishes a residence in this state and is required to register and notify pursuant to the provisions of this Chapter may appeal the
[B]ureau's determination of the applicable time period of registration and frequency of in-person periodic renewals through an administrative hearing as provided in R.S. 49:950 et seq. The offender shall have one year from the date that the [B]ureau posted its determination on the [R]egistry to appeal. The duty to register and notify according to the determination of the [B]ureau made pursuant to the provisions of this Subsection shall be binding and shall not be suspended or stayed pending appeal of the classification of the offender.

A sex offender with a non-Louisiana conviction has one year from the date the Bureau posts its determination on the Registry to appeal with the Division of Administrative Law. The Louisiana Administrative Procedure Act sets forth the procedure for an offender to follow to appeal the Bureau's determination. Louisiana Revised Statutes 49:964(A)(1) provides:

Except as provided in R.S. 15:1171 through 1177, a person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.

Louisiana Revised Statutes 49:964(B) provides that an aggrieved party may file a petition for judicial review in the district court of the parish in which the agency is located, in this matter in the 19th Judicial District Court of East Baton Rouge.

The evidence before the trial court was that the Appellant did not file an appeal of the Bureau's determination within one year even though he was notified of his right to do so. Therefore, the Appellant never sought judicial review pursuant to La. R.S. 49:964. Ms. Bishop's affidavit clearly sets forth that the Bureau's determination that Appellant was to register and notify as a sex offender for twenty-five years was posted on the Registry on April 22, 2010. The affidavit further established that Appellant did not submit a request for administrative appeal as required by La. R.S. 156:542.1.3(B)(4).

The trial court properly applied the applicable rules of peremption in determining that Appellant's time period in which to appeal the Bureau's determination pursuant to La. R.S. 15:542.1.3 expired and his right to challenge the Bureau's determination extinguished. "With peremptive statutes, after the limit of time expires, the cause of action no longer exists; it is lost." Jackson v. Myer , 2010-2108 (La. App. 1 Cir. 11/19/10), 52 So.3d 271, 273. Public policy requires that rights to which peremptive periods attach are extinguished after passage of a specific period of time, and accordingly, nothing may interfere with the running of a peremptive period. The peremptive period may not be interrupted or suspended or renounced, and exceptions such as contra non valentem are not applicable. Borel , 989 So.2d at 49.

The evidence introduced in the record is that Appellant did not administratively appeal the Bureau's determination within the one year peremptive period provided by La. R.S. 15:542.1.3(B)(4). The right to challenge the classification determination was lost and his right was extinguished. Therefore, the trial court's granting of the peremptory exception raising the objection of peremption filed by DPSC was correct.

Original Jurisdiction of Trial Court

Appellant also assigned as error that the trial court failed to treat this matter as a writ of mandamus pursuant to La. R.S. 15:544.1 and instead treated it as an appeal of either DPSC's 2010 determination that his military conviction was equivalent to a Tier II sex offender in Louisiana or an appeal by the DPSC of the 2014 ruling of the 22nd JDC criminal case.

The review provisions of La. R.S. 15:542.1.3(B)(4) are authorized by La. Const. art. V, § 16 (B), which states that "[a] district court shall have appellate jurisdiction as provided by law." Judicial review of the decision of an administrative agency is an exercise of a court's appellate jurisdiction pursuant to La. Const. art. V, § 16 (B). On the other hand, district courts are granted original jurisdiction in all civil matters by La. Const. art. V, § 16 (A). This grant of original jurisdiction refers to judicial adjudications in the first instance and "designates the adjudicative tribunal in which the initial adjudication is made;" it does not refer to judicial review of decisions of administrative agencies. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd. , 2001-0185 (La. 10/16/01), 797 So.2d 656, 660, quoting In re American Waste & Pollution Control , 588 So.2d 367, 372 (La. 1991). Therefore, for the purpose of judicial review of administrative actions, district courts are courts of limited jurisdiction and only have appellate jurisdiction to review administrative decisions as provided by the legislature or constitution. Id ., citing Loop, Inc. v. Collector of Revenue , 523 So.2d 201, 203 (La. 1987). Additionally, the existence of a specific statutory procedure generally implies a legislative intent that the special statutory procedure be the exclusive means of obtaining judicial review in the situations to which it applies. Id.

The trial court in the present case was not exercising its appellate jurisdiction. Examining the petition, we note that Appellant does not request the trial court to overturn the determination of the Bureau. The trial court was not judicially reviewing the decision of an administrative agency. Appellant's petition seeks to enforce an earlier ruling obtained in the 22nd JDC criminal case. The transcript of the trial court's hearing in this case reflects that evidence was admitted into the record. A court may not receive evidence when sitting as an appellate court. Metro Riverboat Assocs. , 797 So.2d at 661. The trial court was acting as a court of original jurisdiction in receiving evidence.

Appellant argues that even if he may have "ceded his 'right' to appeal the length of time and frequency of in-person periodic renewals," a trial court (the 22nd JDC) could still determine whether his military conviction was equivalent to a sex offense. He further claims that La. R.S. 15:542.1.3 allows the Bureau to determine "the time period of registration under the provisions of R.S. 15:544 and the frequency of in-person periodic renewals under the provisions of R.S. 15:542." However, he claims that La. R.S. 15:544.1 authorizes his suit without any time constraints as to peremption and prescription.

Appellant's arguments as to La. R.S. 15:544.1 are inapposite. Louisiana Revised Statutes 15:544.1 is a venue provision when an injunction or declaratory relief is sought. At the time the petition in this matter was filed, La. R.S. 15:544.1 provided:

Any petition for injunctive relief or for declaratory judgment regarding the registration and notification requirements of this Chapter as they apply to a particular offender convicted of or adjudicated delinquent for a sex offense as defined in [La.] R.S. 15:541 or a criminal offense against a victim who is a minor as defined in [La.] R.S. 15:541, regardless of the date of conviction, which are based on theories of relief or grounds not specifically provided for in the provisions of this Chapter, shall be filed through ordinary civil proceedings by the offender, the state, the Department of Public Safety and Corrections, office of state police, or the office of the attorney general, in the district court for the parish where the state capitol is situated.

Louisiana Revised Statutes 15:544.1 provides for the procedure and venue for petitions for removal from the Registry when the cause of action for removal is not based upon a cause of action specifically provided for elsewhere in the registrations and notification statutes. For instance La. R.S. 15:544(E)(1) permits the reduction of a fifteen year registration period to ten years if the sex offender maintains a clean record for ten years upon motion of the sex offender. Louisiana Revised Statutes 15:544(E)(2) permits the reduction of a lifetime registration period to twenty-five years if the sex offender maintains a clean record for twenty-five years upon motion of the sex offender.

Louisiana Revised Statutes 15:544.1 does not revive Appellant's extinguished cause of action to challenge to his obligation to register and notify that should have been timely brought pursuant to La. R.S. 15:542.1.3. The trial court in the present matter was exercising its original jurisdiction in granting the peremptory exception raising the objection of peremption and La. R.S. 15:544.1 did not forbid the trial court from doing so.

Res Judicata

Appellant claims the peremptory exception raising the objection of peremption should not have been granted because the ruling in the 22nd JDC criminal case is res judicata, and that the Bureau must comply with it by removing his name from the Registry. Appellant asserts that since the state did not appeal the motion to quash ruling in the 22nd JDC criminal case, it is bound by the ruling of that court that he was not required to register as a sex offender.

The doctrine of res judicata is set forth in La. R.S. 13:4231 and provides, in pertinent part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
* * *
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

The jurisprudence interpreting La. R.S. 13:4231 has established five elements that must be satisfied for a finding that a second suit is precluded by res judicata: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

Chevron U.S.A., Inc. v. State , 2007-2469 (La. 9/8/08), 993 So.2d 187, 194 ; Burguieres v. Pollingue , 2002-1385 (La. 2/25/03), 843 So.2d 1049, 1053. The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Matherne v. TWH Holdings, LLC , 2012-1878 (La. App. 1 Cir. 12/6/13), 136 So.3d 854, 861, writ denied , 2014-0854 (La. 6/20/14), 141 So.3d 810.

In Adams v. State, Dep't of Health & Human Res. , 458 So.2d 1295 (La. 1984), an owner and manufacturer of individual sewage treatment plants brought an action against the state challenging the sanitary code. Adams contended that because the criminal provisions of the sanitary code were declared unconstitutional by the district court in a prior criminal proceeding in which he was the defendant, the civil suit was res judicata. Under the statutory law, in order for an issue to be res judicata, the thing demanded must be the same, the cause of action must be the same, and the parties must be the same. Adams , 458 So.2d at 1300-01, citing R.G. Claitor's Realty v. Juban , 391 So.2d 394 (La. 1980) ; Welch v. Crown Zellerbach Corporation , 359 So.2d 154 (La. 1978). The supreme court in Adams noted that in the prior suit, the thing demanded was criminal sanctions. In the suit before the court, the state sought to enjoin Adams from selling sewage treatment systems without first obtaining a valid permit, which was a civil sanction. Since the thing demanded was not identical in both suits, the civil suit was not precluded by the doctrine of res judicata. Adams , 458 So.2d at 1301. Additionally, an acquittal on a criminal charge is not a bar to a civil action. Id. , citing City of New Orleans v. Lafon , 61 So.2d 270 (La. App. 1952) ; O.D. Jennings and Company v. Maestri , 97 F.2d 679 (5th Cir. 1938).

We also note that in Millsap v. Cain , 2009-0511 (La. App. 1 Cir. 10/23/09), 2009 WL 3452891, at *3 (unpublished), this court stated:

While the res judicata statute, [La.] R.S. 13:4231, does preclude subsequent litigation of causes of action arising out of the transaction or occurrence that was the subject matter of prior litigation and precludes relitigation of issues actually litigated and determined, these prohibitions apply only where the prior valid and final judgment was rendered between the same parties.See Foley v. Entergy Louisiana, Inc. , 2006-0983 (La. 11/29/06), 946 So.2d 144, 156 n.4, and Five N Company, L.L.C. v. Stewart , 2002-0181 (La. App. 1st Cir. 7/2/03), 850 So.2d 51, 61-62. (Emphasis in original).

We found that the plaintiff had failed to establish identity of the parties in his criminal prosecution, where the party opposing him was the District Attorney for East Baton Rouge Parish, and in the civil dispute the party opposing him was the DPSC, which involved the purely civil function of computing or calculating the time plaintiff served on his sentence. Therefore, the doctrine of res judicata did not preclude the DPSC from considering the time periods when plaintiff was out of custody in computing the time he has served toward his sentence.

In the present matter, the thing demanded in the 22nd JDC criminal case was a criminal sanction, while Appellant seeks a civil sanction against DPSC. As the things demanded are not identical in both suits, the civil suit is not precluded by the doctrine of res judicata. Additionally, the Appellant has failed to establish the identity of the parties, where the party opposing him in the 22nd JDC criminal case was the District Attorney for St.

Tammany Parish, and the opposing party in the instant civil case is DPSC. Therefore, the doctrine of res judicata does not apply to this matter.

Writ of Mandamus

Appellant also asserts that the trial court erred in not issuing a writ of mandamus to order DPSC to remove him from the Registry so that law enforcement agencies will not continue to arrest him. He argues that double jeopardy and collateral estoppel act to prevent DPSC from not complying with the ruling in the 22nd JDC criminal case.

The 22nd JDC criminal case was decided upon the evidence presented in that matter and concluded only the criminal case pending before the court. The sex offender registration and notification statutes are a civil regulatory scheme administered and maintained independent of any criminal case arising as a result of failing to comply with that scheme. See State ex rel. William Olivieri v. State of Louisiana , 2000-0172 (La. 2/21/01), 779 So.2d 735, 749. Thus, the defendant's argument as to the applicability of the doctrine of double jeopardy is misplaced in this court. See Holmes v. Louisiana State Bd. of Nursing , 2013-2154 (La. App. 1 Cir. 8/5/14), 156 So.3d 183, 189, writ denied , 2014-1886 (La. 11/14/14), 152 So.3d 885 ; see also Grantt Guillory Enterprises, Inc. v. Quebedeaux , 2012-931 (La. App. 3 Cir. 2/6/13), 110 So.3d 182, 186 (prohibition against double jeopardy does not apply to a suit which is a civil case and not a criminal prosecution). Further, two prosecutions for the same crime involving different offense dates do not invoke a double jeopardy violation. See State v. Lodge , 2015-0538 (La. App. 4 Cir. 5/25/16), 195 So.3d 567, 570, writ denied , 2016-1276 (La. 4/24/17), 221 So.3d 68 ; see also, State v. Ball , 2016-653 (La. App. 3 Cir. 12/7/16), 209 So.3d 793, 816, writ denied , 2017-0045 (La. 9/22/17), 227 So.3d 825.

Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." State v. Cotton , 2000-0850 (La. 1/29/01), 778 So.2d 569, 573, quoting Ashe v. Swenson , 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Louisiana Revised Statutes 13:4231 embraces the broad usage of the term "res judicata" to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel). Under claim preclusion, a res judicata judgment on the merits precludes the parties from re-litigating matters that were or could have been raised in that action. Under issue preclusion, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes re-litigation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense has two different aspects: a) foreclosure of litigating matters that have never been litigated but should have been advanced in the earlier suit; and b) foreclosure of re-litigating matters that have been previously litigated and decided. Donley v. Town of Amite City Mayor & Council , 2014-0169 (La. App. 1 Cir. 12/23/14), 2014 WL 7331949 (unpublished), writ denied , 2015-0351 (La. 4/24/15), 169 So.3d 363. As we discussed with regard to res judicata, the 22nd JDC criminal case and the civil matter before us do not involve the same parties or the same issue. Therefore, collateral estoppel does not bar any future registration requirements of Appellant.

CONCLUSION

For the above and foregoing reasons, the May 2, 2017 judgment maintaining the peremptory exception raising the objection of peremption and dismissing the suit with prejudice is affirmed. Costs of this appeal are assessed against appellant, Kevin Quartrevingt.

AFFIRMED.

      There was no notification in the record for any time in the year 2006. However, Appellant admitted he was notified.

      Pursuant to La. R.S. 15:544 and La. 15:542.1, Louisiana has a 3-tier classification system for sex offenders.

      At the time of the notification, the version of La. R.S. 15:544 in effect provided that Tier I offenses included any offenses other than those defined in La. R.S. 15:541 as "aggravated offenses" or "sexual offenses against a victim who is a minor" and required a fifteen year registration period and annual in-person registration renewals. Tier II offenses were those in which the victim was a minor and required a twenty-five year registration period and semi-annual in-person registration renewals. Tier III offenses included offenses defined in La. R.S. 15:541(1) as an "aggravated offense" and required a lifetime registration period and in-person registration renewals every three months. La. R.S. 15:544 as amended by 2008 La. Acts, No. 816, § 1; La. R.S. 542.1.1.

      Although in its oral reasons, the trial court refers to the date as February 7, 2014, the actual date of the motion to quash in the 22nd JDC criminal case was February 6, 2014.

      Megan Kanka was a seven-year-old New Jersey girl who was sexually assaulted and murdered in 1994 by a neighbor who, unknown to the victim's family, had prior convictions for sex offenses against children. The crime gave impetus to laws for mandatory registration of sex offenders and corresponding community notification. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Title 17, 108 Stat. 2038, as amended, 42 U.S.C. § 14071, which conditions certain federal law enforcement funding on the State' adoption of sex offender registration laws and sets minimum standards for state programs. By 1996, every state, the District of Columbia, and the federal government had enacted some variation of Megan's Law. See Smith v. Doe , 538 U.S. 84, 89-90, 123 S.Ct. 1140, 1145, 155 L.Ed.2d 164 (2003).

      The definition of "sex offender" was redesignated from La. R.S. 15:542(E) to La. R.S. 15:541(14.1) by 2001 La. Acts, No. 1206, § 1. At time of Appellant's conviction, La. R.S. 15:541(14.1) applied to a conviction of "any provision of Subpart C of Part II or Subpart A(1) of Part V of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950." 2004 La. Acts, No. 888, § 2. Louisiana Revised Statutes 14:81.1 (pornography involving juveniles) was still included as a "sex offense."

      The Bureau's 2010 determination was not altered by the amendment to La. R.S. 15:542.1.3(B) by 2012 La. Acts, No. 129, § 1, effective May 14, 2012, to reflect that if the registration and notification period required by the jurisdiction of conviction is a longer than would otherwise be required under Louisiana laws for a comparable Louisiana equivalent of the offense, the offender must register for the longer period of time. See La. R.S. 15:544(C) ; La. R.S. 15:542.1.3(B)(2)(c).

      Louisiana Revised Statues 15:544.1 was amended by 2017 La. Acts, No. 307, § 1 and currently provides:
      Any petition for injunctive relief or for declaratory judgment regarding the application or interpretation of the registration and notification requirements of this Chapter, other than the summary proceeding provided for in R.S. 15:542(F) and 544(E), shall be filed through ordinary civil proceedings in the district court for the parish where the state capitol is situated. Appeals from determinations made pursuant to R.S. 15:542.1.3 shall comply with the deadlines and other procedures as required by R.S. 15:542.1.3.

      Adams was decided pursuant to La. C.C. art. 2286, which as redesignated as La. R.S. 13:4231 by Acts 1984, No. 331, § 7, eff. Jan. 1, 1985.