source: Caselaw Access Project

author: JAMES F. McKAY III, CHIEF JUDGE BELSOME? J.,

license: Public Domain

text:
    STATE of Louisiana v. Michael BAUGH
    NO. 2016-K-1201
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 18, 2017

      LEON , A. CANNIZZARO, JR., DISTRICT ATTORNEY OF ORLEANS PARISH, SCOTT G. VINCENT, ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE OF LOUISIANA
    DÁVID M. ABDULLAH, PFIFFER ROSCA WOLF, ABDULLAH CARR & KANE APLC, 201 St. Charles Avenue, Suite 4610, New Orleans, Louisiana' 70Í70, COUNSEL FOR DEFENDANT/RESPONDENT
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Roland L. Belsome)
   JAMES F. McKAY III, CHIEF JUDGE

hOn October 14, 2015, the state filed a bill of information charging defendant with first offense possession of marijuana (R.S. 40:966(E)(1)) and battery of a police officer with injury (R.S. 14:34.2(B)(3)). Defendant appeared with counsel and pled not guilty. The defense filed several pretrial pleadings including motions to suppress- the statement and evidence and moved for a preliminary: examination. The trial court denied the motions to suppress and found probable cause to sustain the charges. The defense filed a motion to reopen the suppression and probable..cause determinations, which the court granted. After, rehearing the matter, the trial court granted the motion to.suppress and found insufficient probable, cause. The state’s writ application followed.

STATEMENT OF THE FACTS

At the January 18, 2015 hearing, Louisiana State Trooper Eric Thaxton testified that on September 18, 2015, at approximately 11:10 p.m., he and his partner, Officer Charles Robertson, responded to a call from NOPD dispatch concerning a suspicious vehicle near Elk Street. The dispatcher advised that loud music was emanating from the truck and that a male wearing a red hat was waving a handgun out of the vehicle. Upon their arrival at the scene, the officers observed |Pa Chevrolet truck with dark tinted windows parked with its engine running on Elk Street near Canal. The truck had no license plate and its front windshield was darldy tinted, preventing the officers from viewing its interi- or. Given that the truck matched.the description of the vehicle provided by the dispatcher and the officers’ observations of traffic/registration violations, Trooper Thaxton elected to conduct an investigatory stop.

Trooper Thaxton approached the vehicle and asked the driver, later identified as defendant, to exit. As defendant opened the vehicle’s door, the officers detected the odor of marijuana wafting from inside the truck. Defendant wore a red hat, matching the description of the individual provided by the NOPD dispatch. Defendant told the officers that he had just gotten off of work from the nearby Flax Luxe hair salon. In response to Trooper Thaxton’s explanation concerning the stop and claim that he smelled marijuana, defendant replied that the officers lacked probable cause to detain him and maintained the allegation about the smell of marijuana was false. When asked to produce his driver’s license, defendant requested permission to retrieve the item from the salon. Trooper Thaxton instructed defendant to'check his-wallet for the identification and when he did, Trooper Thaxton observed the license. When Trooper Thaxton confronted defendant about the license, defendant stepped back, turned around and attempted to flee on foot.

Officer Robertson grabbed defendant’s right wrist and defendant responded by punching the officer in the face and kicking him in the knee. Defendant ran across the median and, after he disobeyed Trooper Thaxton’s order to stop, Trooper Thax-ton detonated his Taser, striking defendant and causing him to fall to lathe ground. When defendant got up and started running towards the sidewalk, Trooper Thaxton “tased” him a second time. The second strike sufficiently subdued defendant and officers handcuffed him.

The officers then conducted an inventory search of the truck, during which Trooper Thaxton located a pill bottle containing marijuana inside the center console. Hollowed-out cigars were recovered from the driver’s side door compartment and a cup containing loose tobacco (presumably remoyed from the cigar casings) was found in the center console. The inspection sticker affixed to the windshield appeared fraudulent.

Defendant was placed under arrest for marijuana possession, battery of a police officer and resisting arrest. Traffic citations were issued for the fraudulent inspection sticker, illegal window/windshield tint and the operation of a vehicle without a visible license plate. Officer Robertson testified and corroborated the account provided by Trooper Thaxton concerning the encounter with defendant.

Pursuant to the defense motion which revealed that it did not possess a recording of the dispatch to cross-examine the officers at the initial hearing, the court recalled the matter. At the hearing conducted September 16, 2016, defense counsel confronted Trooper Thaxton with his initial police report narrative which provided:

On 9-18 2015 at approximately 2310 hours, Troopers Thaxton and Robertson responded to a call by NOPD dispatch for a suspicious black pick-up seen near Elk Place and Canal traveling river-bound and NOPD advised that the black truck was reported to be playing loud music while a black male wearing a red hat waving a handgun out of the vehicle. Dispatch advised there were four black males inside the vehicle according to complainant. There was no license plate or state information given by dispatch.

|4A separate section of the report which set out the initial complaint,, also provided, “There was no license plate or state license—state information given by dispatch.” In fact, the recording of the dispatch provided a partial license plate B690. Accordingly, the fact that defendant’s vehicle did not have any visible plates, would have excluded it from that which was described in the dispatch. In addition, the vehicle was parked not “traveling” as - set out in the dispatch and defendant was alone in the truck as opposed to being accompanied by three other individuals. Defendant also maintains that his truck was gray, not black. The report indicated that the officers made the stop within five minutes of receiving the dispatch.

On October 18, 2016, the parties declined the opportunity, to place additional argument on the record. The court found no probable cause and granted the motion to suppress.

DISCUSSION

When reviewing trial court decisions on motions to suppress, their determinations of fact are reviewed for abuse of their great discretion, and their legal decisions are reviewed de novo. State v. Candebat, 13-0780, pp. 6-7 (La.App. 4 Cir. 1/30/14), 133 So.3d 304, 306 (citing State v. Wells, 08-2262 (La. 7/6/10), 45 So.3d 577).

The 14th Amendment to the U.S. Constitution and La. Const. Art. 1, § 5 prohibit unreasonable searches and seizures. State v. Surtain, 09-1835, p. 6 (La. 3/16/10), 31 So.3d 1037, 1043. In order to enforce the mandates of the Fourth Amendment and La. Const. Art. 1, Sec. 5, and discourage police misconduct, derivative evidence obtained pursuant to an unconstitutional search or seizure is inadmissible. State v. Hamilton, 09-2205, p. 3 (La. 5/11/10), 36 So.3d 209, 211. Generally, a search and seizure conducted without a warrant issued on probable Rcause that a crime has been committed is per se unreasonable unless justified by one of the narrowly drawn exceptions to the warrant requirement. Id., 09-1835, p. 7, 31 So.3d at 1043.

One exception to the warrant requirement known as a “Terry stop” (because it was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) is codified in La. C.Cr.P. art. 215.1.

Pursuant to La. C.Cr.P. art. 215.1, “[a] law epforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and máy démand of him his name, address, and an explanation of his actions.” See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (Investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense). “Reasonable suspicion” to stop is something less than probable cause for arrest; a reviewing court must look to the facts and circumstances of each case to determine whether a detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights. State v. Williams, 2007-0700, p. 11 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101, 1111. In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy it entails and consider the totality of the circumstances in determining .whether reasonable; suspicion exists. Id. The detaining officers must have knowledge of specific articulable facts, which, if taken together with rational inferences from those facts, warrant the stop., Id. The officer’s past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable, and deference should be. given to the experience of the officers present at the time of the incident, Id., 2007-0700 atp. 12, 977 So.2d at 1111.

State v. Marzett, 09-1080, pp. 5-6 (La.App. 4 Cir. 6/9/10), 40 So.3d 1204, 1208.

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of legal violation, such as a traffic violation, occurred or is about to occur before stopping the vehicle. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to | fithe inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La. 3/13/98), 708 So.2d 1048. The determination of reasonable suspicion for an investigatory stop (or probable cause for arrest) does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of the challenged action. State v. Landry, 98-0188 (La. 1/20/99), 729 So.2d 1019. When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable, regardless of the officer’s intent. Whren v. United States, supra.

The Louisiana Supreme Court cited Whren in State v. Lopez, 00-0562 (La. 10/30/00), 772 So.2d 90. In Lopez, the Court, stated, “[wjithout regard to .the trooper’.s subjective intent, respondent’s speeding above the posted limit gave the officer an objective probable cause basis to pull over the vehicle for a traffic violation.” Id, at 92. Quoting Whren, the Court specifically found “[Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id.

Similarly, in State v. Kalie, 96-2650, p. 3 (La. 9/19/97), 699 So.2d 879, 881, the Louisiana Supreme Court stated:

That Officer Brashier was conducting a drug interdiction patrol when' he pulled over the Camry had no bearing on the legality of the initial stop for improper lane use. Whren, 517 U.S. at [806], 116 S.Ct. at 1774 (“the fact that the officer 'does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the- circumstances, viewed objectively, justify that action.”) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723-1724, 56 L,Ed.2d 168 (1978)),

In this case, the trial court tacitly concluded that Trooper Thaxton testified falsely when he described the circumstances precipitating the stop. However, notwithstanding the inaccurate recollection of the events preceding the encounter 17when he testified at the suppression hearing, the state presented uncontested evidence demonstrating that independent grounds existed for the stop. Specifically, regardless of whether Trooper Thaxton alerted to the vehicle based on the dispatch, given the absence of a visible license plate and the illegally tinted windshield, the officer could have (at a minimum) conducted an investigatory stop based on the traffic infraction. See Whren, supra. Notably, not only did Trooper Thaxton describe the independent grounds for the stop, but the officer also issued several citations based on the violations,

Upon making the stop, the suspicion almost certainly flowered into probable cause to arrest defendant when he smelled the strong odor of marijuana emanating from the vehicle. See State v. Sherman, 05-0779, pp. 17-18 (La. 4/4/06), 931 So.2d 286, 297 (“Where the police have probable cause to arrest, and conduct a search of that person incident to arrest, the fruits of that search may not be suppressed merely because the police did not intend to arrest the suspect for the offense for which probable cause existed.”). In this situation, the officer’s failure to accurately relate the contents of the dispatch call which precipitated, the stop did |snot render the police action illegal. Upon the acquisition of probable cause to arrest, the ensuing warrantless inventory search of the vehicle yielding the contraband was permissible although seizure of the marijuana found in the truck, which resulted only in a misdemeanor charge, does not appear the focal point of defendant’s motion to suppress.

CONCLUSION

For the foregoing reasons, we grant the state’s writ application and reverse the trial court’s ruling finding no probable cause and granting defendant’s motion' to suppress/

WRIT GRANTED

BELSOME, J., DISSENTS

BELSOME? J.,

DISSENTS

hi would deny the writ.

      . As discussed below, that assertion was undermined at the subsequent hearing.

      . Defendant does not seriously contest the existence of the traffic violations. Rather, he maintains the alleged offenses are mere after- • thought, and are not germane to the issue of whether or not the officers initial approach, encounter, and detention of defendant, was unconstitutional.

      . This Court has stated that probable cause to arrest exists:
      when the detaining officer has articulable knowledge of particular facts sufficient to reasonably suspect the detained person of criminal activity. Beck v. Ohio, 379 U.S, 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v, Buckley, 426 So.2d 103, 107 (La. 1983); see also State v. Parker, 06-0053, p. 2 (La. 6/16/06), 931 So.2d 353, 355 (probable cause to arrest exists when the facts and circumstances known to the officer, and of which he has reasonable trustworthy information, are sufficient to justify a man of ordinary caution in believing the person to be arrested has committed an offense).

        State v. Marley, 06-0317, p. 5 (La.App. 4 Cir. 11/8/06), 945 So.2d 808, 812. Moreover, the totality of the circumstances must be considered' to determine the existence of probable cause. Id.

      .Inventory searches constitute a well-defined exception to the warrant requirement established by the Fourth Amendment to the U.S. Constitution and Article' 1, Section 5 of the Louisiana Constitution of 1974. State v. Escoto, 09-2581 (La. 7/6/10), 41 So.3d 1160. In Louisiana, the reviewing court examines inventory searches under the totality of the cir- ’ cumstances to determine if a truly valid inventory search has taken place, Id., 09-2581, p. 5, 41 So.3d at 1163.


author: JAMES F. MCKAY III, CHIEF JUDGE LOVE, J.,

text:
    STATE of Louisiana v. Kayla BRIGNAC
    NO. 2016-K-1160
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 18, 2017

      LEON A.CANIZZARO, JR, DISTRICT ATTORNEY OF ORLEANS PARISH, DAVID S. PIPES, ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE OF LOUISIANA
    RYAN F. LAPORTE, Laporte Law Offices, LLC, 700 Camp Street, New Orleans, Louisiana 70130, COUNSEL FOR DEFENDANT/RESPONDENT
    • (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Roland L. Belsome)
   JAMES F. MCKAY III, CHIEF JUDGE

liThe State seeks a review of the trial court’s granting of the deféndant’s motion to suppress the evidence.

On May 6, 2016, the State filed a bill of information charging the defendant, Kayla M. Brignac, with posséssion of cocaine with intent to distribute; possession of oxycodone; possession of marijuana (third offense); and possession of a legend drug. On July 20, 2016, the defendant filed motions for discovery, suppression of evidence and for a preliminary hearing. The court conducted a hearing on the suppression motion on August 9, 2016, and at its conclusion denied the motion and found probable cause. On September. 9* 2016, the defense filed a motion for reconsideration on the-suppression issue;' the State filed an opposition on September 29, 2016; and after oral argument conducted the following day, the court granted the defense motion on October 6, 2016. The State noticed its intent to seek writs and the court set a return date of November 4, 2016 and granted its motion to stay the proceedings. The State timely filed the application on its due date. .

|2STATEMENT OF THE FACTS

Probation and Parole Officer Chris Turner testified' that he participated in a residence check of the defendant’s home on March 8, 2016, located at 524 ½ Bourbon Street. Officer Turner learned that the defendant may have been involved in illegal narcotics sales from another law enforcement agency. At approximatély 7 a.m., Officer Turner, accompanied by Agent Tiffany Eagles, arrived at- the residence where a man later identified ’as Jer-main Tobias answered the door. The officers relocated Jermain Tobias to the porch outside the residence and later learned that he was on parole in St. Charles Parish. After encountering another female (Kisha Camile) in the home, the officers found the defendant in the far left bedroom. In the bedroom, occupied by the defendant, the officers observed what appeared to be a burned marijuana cigarette in plain view. The officers then searched the "kitchen and discovered:

... a black digital, scale with some resi.due on it, We found a bag containing four tan pills, another, bag containing, I believe it was five white oval shaped pills, . just, another pill, another white round pill, just some other baggies with some—it looked like some white residue, white powder residue on it, as well as, a bag containing some multi-colored like straws;

The tan pills were identified as. Flexeril. Outside the residence on the porch, in a container, the officers recovered approximately -10 small, clear bags containing white powder and another bag containing off-brown powder. The officers from the U.S. Marshals, the ATF and the. State Police discovered the contraband found on the porch. The officers then administered Miranda warnings to all the suspects; none made statements but‘Kisha Camile who directed the officers to additional nar-. cotíes (a small bag of marijuana) located in her.bedroom. During a search l.qincident to arrest, officers recovered $1266.00 in various denominations from Jermain Tobias.

On cross,- Officer Turner again noted the presence of officers from other law enforcement agencies and acknowledged that he was not the agent regularly assigned to monitor, the defendant. Officer Turner also admitted that when he personally arrived at. the residence through the porch, he was not inspecting the area for plastic key containers (where the additional contraband was found). After he and Agent Eagles entered the residence and removed Jermain Tobias, Officers Bartel, Easley and- Dickens remained on the porch with him. Officer Turner identified Agent Bo Bartel of the U.S. Marshal’s Office as the officer who discovered the. contraband in the key container.

The defendant’s attorney conducted cross and elicited the admission that the report prepared by Officer Turner contained a clerical .error, indicating that defendant was the owner of the currency seized from Jermain Tobias. Office Turner clarified that Officer Bartel “was confident that they key holder found on the porch ... was not there prior to Mr. ■ Tobias’ presence.”

Agent Rebecca Soileau testified that she was the sole probation officer assigned to the defendant. She had previously conducted a residence verification to establish that the defendant lived at 524 ½ Bourbon Street.

At the conclusion of the hearing, the court denied the motion' to suppress, finding that the tip, coupled with the defendant’s status as a probationer, was sufficient to authorize the search of the residence. The defendant then filed a motion for reconsideration and the State filed an opposition to the motion. The trial court then reconsidered its earlier ruling denying the motion. Finding it “compelling” that Agent Soileau was the sole officer assigned to the defendant’s Incase and “that there were outside agencies who were there on an anonymous tip,” the court concluded that the State’s conduct “smack[ed] of subterfuge to the point where ,.. Probation and Parole was being utilized in a manner in which they were legally not able to do so.” The trial court then granted the defendant’s motion to suppress the evidence.

DISCUSSION

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Ordinarily, when evidence is seized- without a warrant, the burden is on the State to demonstrate that a search is justified by some exception to the warrant requirement. La. C.Cr.P. art. 703(D); State v. Bell, 2009-0574, p. 4 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 506 (citation omitted).

Individuals on probation possess a diminished expectation of privacy. State v. Malone, 403 So.2d 1234, 1240 (La. 1981); see also State v. Marino, 2000-1131, p. 4 (La.App. 4 Cir. 6/27/01), 804 So.2d 47, 52. “This reduced expectation of privacy is based oh a probationer’s conviction and agreement to allow a probation officer to investigate his activities in order to confirm that the ’probationer is in compliance.. with the provisions of his probation.” State v. Fields, 2012-0674, p. 9 (La.App. 4 Cir. 6/19/13), 120 So.3d 309; 317 (citing State v. Thomas, 96-2006, p. 2 (La.App. 4 Cir. 11/06/96), 683 So.2d 885, 886). That reduced expectation of privacy authorizes “reasonable warrantless searches of their persons and residences by their probation or parole officer, even though less than probable cause may be shown.” State v. Jones, 2012-0438, p. 8 (La.App. 4 Cir. 3/13/13), 119 So.3d 9, 15 (citing Malone, 403 So.2d at 1238).

| ¡/This Court has recognized that a probationer is not subject to the unrestrained power of the authorities, and “a search of the probationer may not be a subterfuge for a police investigation.” Fields, 2012-0674, p. 9, 120 So.3d at 317 (quoting Thomas, 96-2006, p. 2, 683-So.2d at 886). However, “a probation officer may conduct a warrantless search of a probationer’s property when ‘the officer believes such a search is necessary in the performance of his duties, and must be reasonable in light of the total atmosphere -in which it takes place.’ ” Id. “In order to determine reasonableness we must consider ‘(1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted.’ ” Id.

In the instant case, the officers possessed reasonable suspicion to conduct a search of the residence based on “information that Ms. Brignac may be involved in' the sales of illegal narcotics.” While the reliability of that information was not explored by either the defense or the State at the suppression hearing, such a tip likely provided’ the state "with the requisite level of cause to conduct a residence check, if not á full blown search of the home. State v. Drane, 36,230, pp. 7-8 (La.App. 2 Cir. 9/18/02), 828 So.2d 107, 112 (Warrant-less'search of parolee’s apartment was reasonable,’where search was done by probation and parole officers, search was performed after officers received credible tip that parolee.was involved in production of methamphetamine and after parolee tested positive for. methamphetamine use, and parolee refused to answer door until forced entry into apartment was threatened by officer). In addition, the initial scope and manner of the intrusion appears minimal insofar as officers immediately observed contraband in plain view of the defendant’s bedroom.

|f,As to the district court’s concern that the defendant’s probation officer played no role in- the search of the residence, that detail is of little importance as an appellate court’s review on the. legality of the search is “based on an assessment of the collective knowledge possessed by all of the police.involved in the investigation.” State v. Pratt, 2008-1819, p. 1 (La. 9/4/09), 16 So.3d 1163, 1164. In this case, the defendant’s status as a probationer did not operate a subterfuge to conduct a suspi-cionless search but rather .allowed officers to conduct the search.without a warrant and based on less than probable cause. See Malone, supra.

Finally as discussed above, a marijuana cigarette was readily identifiable in plain view by the officers when they entered defendant’s room. The observation provided officers with the requisite level of cause to conduct a more thorough search of the remainder of the residence. See e.g., State v. Dimes, 2016-0129, p. 15 (La.App. 4 Cir. 6/22/16), 195 So.3d 1263, 1272.

.Here, the officers acted legally when they conducted the .warrantless search. The court therefore erred when it reconsidered its earlier ruling denying relief and granted the motion to suppress as the search does not exceed that which is permissible under the Fourth Amendment: Accordingly, this, writ is granted.

WRIT GRANTED

LOVE, J., DISSENTS AND ASSIGNS REASONS

belsome, j., Concurs in the RESULT

LOVE, J.,

DISSENTS AND ASSIGNS REASONS.

LI respectfully dissent from the majority- '

While probationers do possess a decreased expectation of privacy, they are not “subject to the unrestrained power of the authorities.” State v. Fields, 12-0674, p. 9 (La. App. 4 Cir. 6/19/13, 9), 120 So.3d 309, 317. “[A] search of the probationer may not be a subterfuge for a police investigation.” Id. “[A] probation officer may conduct a warrantless search of a probationer’s property when ‘the officer believes such a search is necessary in the performance of his duties, and must be reasonable in light of the total atmosphere in which it takes place.’ ” Id., quoting State v. Thomas, 96-2006, p. 2 (La. App. 4 Cir. 11/06/96), 683 So.2d 885, 886. This reasonableness is determined by examining “(1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted.” Thomas, 96-2006, p. 2, 683 So.2d at 886.

In the present matter, a residency verification was already conducted on the defendant by the sole probation officer assigned to her. However, a tip was received from another law enforcement agency alleging that defendant was involved in illegal narcotics sales. Consequently, probation and parole officers, not regularly assigned to monitor the defendant, conducted another residence check |2of the defendant’s home. Once in defendant’s bedroom, officers observed a burned marijuana cigarette in plain view, prompting a search. The officers found contraband in the kitchen. The U.S. Marshals, the ATF and the State Police discovered contraband on the porch.

The majority relies upon State v. Drane, 36,230 (La. App. 2 Cir. 9/18/02), 828 So.2d 107, for the premise that “such a tip likely; provided the state with the requisite level of cause to conduct a residence check, if not a full blown search of the home.” However, the search in Drane was based upon a “credible” tip coupled with the parolee’s positive drug test. Drane, 36,230, p. 7, 828 So.2d at 112. The Drane court also notes that the search was only conducted after the positive drug test and only by probation and parole officers. Id.

The veracity of the other law enforcement agency’s anonymous tip was not established. Further, there was no other corroboration present in this matter. In fact, the officer assigned to monitor the defendant testified that she previously completed a residence check on the defendant. Additionally, numerous agencies, including the U.S. Marshals, the ATF, and the State Police, conducted the search. Under the facts and circumstances of this case, I do not find that the search was reasonable. As the trial court stated, “these officers were simply there in order to effect a warrant-less search on the behest or at the behest of outside agencies.” Likewise, the trial court found that “this was clearly not a residency check,” but was “a search, based on a tip.” Therefore, I would deny the writ.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Ryan AUCOIN v. DEPARTMENT OF POLICE
    NO. 2016-CA-0287
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 29, 2017

      Donovan Anthony Livaceari, LIVAC-CARI VILLARRUBIA LEMMON, LLC, 101 West Robert E. Lee Boulevard, Suite 402, New Orleans, - Louisiana 70124, COUNSEL FOR PLAINTIFF/APPELLANT
    Stephanie Dovalina, ASSISTANT CITY ATTORNEY, Isaka Rachell Williams, ASSISTANT CITY ATTORNEY, Cherrell R. Simms, SENIOR CHIEF DEPUTY CITY ATTORNEY, Rebecca' H. Dietz, CITY ATTORNEY, 1300 Perdido Street, Suite 5E03, New Orleans, Louisiana 70112, COUNSEL FOR DEFENDANT/APPEL-LEE
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Sandra Cabrina Jenkins)
   JAMES F. MCKAY III, CHIEF JUDGE

hln this civil service case, New Orleans Police Department (NOPD) Officer- Ryan Aucoin appeals the dismissal of his appeal by the Civil Service Commission of the City of New Orleans for the discipline imposed by the appointing authority (NOPD). We affirm.

FACTS AND PROCEDURAL HISTORY

On April 5, 2012, at 3:06 a.m., Officer Aucoin was arrested and charged ’ with driving while intoxicated and careless operation of a motor vehicle, while driving a NOPD marked vehicle on the Causeway Bridge in St. Tammany Parish. Officer Aucoin performed poorly on a field sobriety test and the arresting officer noted a strong odor of alcohol on his breath. Thereafter, Officer Aucoin entered and completed the St. Tammany Parish District Attorney’s Pre-Trial Diversion Program, thereby accepting responsibility for the state violations of driving while intoxicated (La. R.S. 14:98) and careless operation of a motor vehicle (La. R.S. 32:68).

laThe NOPD undertook an administrative investigation of Officer Aucoin for alleged violation of NOPD rules and regulations in connection with his aforementioned arrest. A pre-disciplinary hearing took place before Deputy Superintendent Kirk Bouyelas of the Investigative Services Bureau on October 15, 2013. Dept. Supt. Bouyelas recommended the following penalties for the following violations: 1) a 61 day suspension for violation of Department Rule 2, Moral Conduct; Paragraph 1: Adherence to Law relative to R.S. 14:98. Driving While Intoxicated; 2) a 3 day suspension for violation of Department Rule 4: Performance of Duty; Paragraph 2: Instructions from an Authoritative Source, to wit; C.A.O. Policy Memorandum # 89, Section XI Employee off-the-job Conduct; 3) a letter of reprimand for violations of Department Rule 2: Moral Conduct; Paragraph 1: Adherence to Law relative to • R.S. 32:58' Careless Operation of a Motor Vehicle; and 4) a letter of reprimand for violation of Department Rule 3: - Professional Conduct, Paragraph 1: Professionalism. Thereafter, Officer Aucoin received a disciplinary letter from Superintendent of Police Roñal Serpas sustaining the findings and recommended discipline.

On February 14, 2014, Officer Aucoin filed an appeal with' the Civil Service Commission. The NOPD filed a motion for summary dismissal on August 4, 2014, arguing that Officer Aucoin did not have a right to appeal pursuant to CS Rule II, Section 6.1 because he acknowledged that he violated the law by entering into the diversion program.

|sThe matter came before the Commission on the NOPD’s motion for summary dismissal at a November 17, 2014 hearing. Officer Aucoin failed to appear at this hearing. Following oral argument, the Commission dismissed the appeal based on the nature of the offense and the Supreme Court case of Regis v. NOPD, 2013-1124 (La. 6/28/13), 121 So.3d 665, which held that violation of a state statute ipso facto impairs the efficient operation of the department. Thereafter, Officer Aucoin filed an application for rehearing, which the Commission denied on March 19, 2015. Therefore, Officer Aucoin moved for an order of appeal,.which was entered on May 21, 2015.

DISCUSSION

On appeal, Officer Aucoin raises the following assignments of error: 1) the Civil Service Commission erred by denying his appeal without affording him a hearing contrary to the rules of the civil service; and 2) the Civil Service Commission erred by denying his appeal when the NOPD failed to introduce evidence of legal cause for the disciplinary action taken meeting its legally required burden of proof,

The standard of review for civil service cases' in the appellate courts is multifaceted. See Muhammad v. New Orleans Police Dep’t., 2000-1034, p. 4 (La. App. 4 Cir. 7/11/01), 791 So.2d 788, 790. When reviewing the Commission’s findings of fact, the appellate court must apply the clearly wrong or manifestly erroneous standard. However, when judging • the Commission’s exercise of its |4discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the reviewing court should not modify .the Commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion.. Id., 00-1034, pp. 4-5, 791 So.2d at 790-91 (citing Wilson v. New Orleans Aviation Bd., 96-1350, p. 2 (La. App. 4 Cir. 1/15/97), 687 So.2d 593, 595). Therefore, the appropriate standard of appellate review of actions by the Civil Service Commission is to determine whether the conclusion reached by the Commission is arbitrary or capricious. Id. (citing Palmer v. Dep’t. of Police, 97-1593 (La.App. 4 Cir. 1/28/98), 706 So.2d 658). As in other civil matters, deference should be given on appellate review to the factual conclusions of the Commission. Id. (citing Newman v. Dep’t. of Fire, 425 So.2d 753 (La. 1983)). It is only when this court finds that the Commission’s actions were arbitrary or capricious that it can- disturb the Commission’s judgment. Id.

In his first assignment of error, Officer Aucoin contends that the Commission erred by denying his appeal without affording him a hearing, which is contrary to civil service rules. This assignment of error lacks merit. Officer Aucoin had the opportunity to attend the November 17, 2014 hearing, but chose not to attend.

Civil Service Rule II, Section 6.5 states: “The Commission, on its own motion, may at any time summarily dispose of an appeal on any of the grounds listed in either Section 6.1 or 6.3. Failure to appear for hearing is one of the grounds for dismissal listed in Rule 6.3.

| sWe also note that Officer Aucoin cannot' make an argument that his due process rights were violated. “The central meaning of procedural due process is well settled. Persons whose rights may be affected are entitled to be heard; and in order that they may enjoy that right, they must first be notified.” Moore v. Ware, 01-3341, pp. 12-13 (La. 2/25/03), 839 So.2d 940, 949, quoting Wilson v. City of New Orleans, 479 So.2d 891, 894 (La. 1985). The Louisiana Supreme Court noted in Moore that the right to notice and opportunity must be extended at a meaningful time and a meaningful manner. 01-3341, p. 13, 839 So.2d at 949, citing Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct.1983, 32 L.Ed.2d 556 (1972); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). In the instant case, Officer Aucoin had notice of the November 17, 2014 hearing, but he chose not to attend and exercise his right to be heard.

In his second assignment of error, Officer Aucoin contends that the Civil Service Commission erred by denying his appeal when the NOPD failed to introduce evidence of legal cause for the disciplinary action taken meeting its legally required burden of proof. At the November 17, 2014 hearing, the NOPD introduced into evidence documentation that showed Officer Aucoin had been arrested on April 5, 2012 and had thereafter successfully completed the St. Tammany Parish District Attorney’s Diversion Program. As noted above, violation of a state statute, such as La. R.S. 14:98 or La. R.S. 32:58, ipso facto impairs the efficient operation of the department. See Regis, 2013-1124, pp. 2-3, 121 So.3d at 665-66. Therefore, there was a rational basis for the Commission’s | ^ruling that was neither arbitrary nor capricious. See Harris v. Dep’t. of Police, 2012-0701 (La.App. 4 Cir. 9/14/12), 125 So.3d 1124. Accordingly, Officer Aucoin’s second assignment of error also lacks merit.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the Civil Service Commission dismissing Officer Aucoin’s appeal, thereby leaving the discipline imposed by the appointing authority intact.

AFFIRMED

      . Although a jurisdictional issue has been noted in this case, the Commission determined that the motion for rehearing was timely filed. Therefore, we will pretermit the discussion of this issue.


author: Judge Terri F. Love

text:
    Wade WHITE v. COX OPERATING, LLC
    NO. 2016-CA-0901
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 5, 2017

      William L. Roberts,. Pro Hac Vice, FAEGRE BAKER DANIELS, LLP, 90 South Seventh Street, Minneapolis, MN 55402, AND Stephen S.,Kreller, Katie M. Cusimano, THE KRELLER .LAW FIRM, 757 St. Charles Avenue, Suite 301, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT, .. WADE WHITE '
    Robert C. Clotworthy, Christopher M. Hannan, Daniel J. Dysart, BAKER, DO-NELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, 201 St. Charles Avenue, Suite 3600, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPEL-LEE, COX OPERATING, LLC
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Sandra Cabrina Jenkins)
   Judge Terri F. Love

I,This appeal arises' from damages to plaintiffs oyster beds sustained- during the drilling of oil wells by defendant. Plaintiff filed suit against defendant to recoup for the damages to his oyster beds. Defendant filed an exception of res judicata, contending that the written releases barred plaintiffs suit. The trial court did not accept testimony or evidence; but granted the exception. We find that the record is incomplete for an appellate review, as the trial court erred by not holding a formal evidentiary hearing. Therefore, we reverse and remand the matter for said hearing. Accordingly, the judgment 'of the trial court is vacated and the- matter remanded.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Wade White, a lifetime oysterman, is the owner of multiple oyster leases. Cox Operating, LLC (“Cox”) entered into a “Receipt and Release” for $10.0,000 with Mr. White in 2000, when Cox began drilling wells near some of his oyster leases. Subsequently, Cox sought to drill more wells near Mr. White’s leases. In 2012, Cox negotiated another drilling release with Mr. White for $175,000.

Around April 1, 2012, Mr. White discovered Cox’s pilings driven into his oyster leases' and water traffic that differed from the agreed upon routes on ingress/egress. Mr. White then Contacted Cox, who allegedly admitted the error and ^promised payment for damages. Cox removed the pilings and then continued following the previous agreed upon ingress/egress routes. Cox later maintained; that the executed drilling, releases covered any damages caused by the pilings and extra water traffic.

Mr. White then filed a Petition for Damages against Cox due to the pilings. Cox' filed a reconventional demand for breach of contract of settlement/compromise, declaratory judgment, and attorney’s fees/ costs. Cox also filed peremptory exceptions of res judicata and no right of action and sought expedited consideration from the trial court. The trial court heard oral argument, but did not accept live testimony or evidence. After taking the matter under advisement, the trial court granted Cox’s exception of res judicata and denied the exception of no right of action. Mr. White’s devolutive appeal followed.

MOTION TO DISMISS

Cox filed a Motion to Dismiss Mr. White’s appeal, asserting that this Court lacks subject matter jurisdiction because the judgment was not final and appealable. Cox avers that La. C.C.P.. art. 1915(B) applies to the judgment because-its recon-ventional demand remains, which would require a designation by the trial court that the judgment is final and appealable. Cox’s contention lack merit.

“A judgment that determines the merits in whole or in part is a final judgment.” La. C.C.P. art. 1841. La. C.C.P. art. 1915(B)(1) provides:

When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim,. or intervention, the judgment shall not constitute a -final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

IsCox’s reliance on the above provision is misguided. The trial court’s judgment dismissed all of Mr. White’s claims; thereby creating a final judgment. La. C.C.P. art. 1915(A) states, in pertinent part:

A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all pf the relief prayed for, ■ or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
* * *
(4) Signs a judgment on either .the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.

La. C.C.P. art. 1038 provides that

The court may order the separate trial of the- principal -and incidental actions, either on exceptions or on the merits; and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other.
When the principal, and incidental actions are tried separately, the court may render and sign separate judgments thereon. When in the interests of justice, the court may withhold the signing of the judgment on the action first tried until the signing of the judgment on the other.

Cox cites Jackson v. Sumlin, 16-96, pp. 2-3 (La.App. 5 Cir. 7/7/16), 196 So.3d 902, 903-04, for the premise that a judgment that does not dispose of the reconventional demand is not final. While not binding precedent, Jackson is nonetheless distinguishable. The Jackson court stated that La. C.C.P. art. 1915(A)(4). did not apply because-the record reflected that the trial court tried both the main demand and the reconventional demand concurrently. 16-96, p. 3, 196 So.3d at 903, n.1. Conversely, in the present matter, the transcript reflects that the trial court did not consider any evidence, testimony, or oral argument related to Cox’s reconventional demand. In fact, Cox’s Motion to Dismiss noted .that the trial court held a hearing on its Motion for Summary Judgment regarding the re-conventional 14demand, but had yet to issue a ruling. As such, we find that the 'matters were tried separately' pursuant to La. C.C.P. art. 1038, which triggered the application of La. C.C.P. art. 1915(A)(4).

Further, La. C.C.P. art. 1915(A)(1) is .also applicable because, all of -Mr. White’s claims were dismissed by the trial court on the exception of -res judicata. “[I]f one party is completely dismissed from a suit, the judgment is final under Article 1915(A)(1), and there is no requirement to have it designated as final.” Jeansonne v. New York Life Ins. Co., 08-932, p. 9 (La. App. 3 Cir. 5/20/09), 11 So.3d 1160, 1168. As both La. C.C.P. art. 1915(A)(1) and (4) apply to the present matter, Cox’s Motion to Dismiss is denied.

STANDARD OF REVIEW

“In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly. wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.” Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. “Thus, a reviewing court may not merely decide if it would have found the facts of the case differently.” Id. This Court noted:

In order to reverse findings of the fact-finder, “an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong.”

Harold A. Asher, CPA, LLC v. Haik, 12-0771, p. 4 (La.App. 4 Cir. 4/10/13), 116 So.3d 720, 723-24, quoting S.J. v. Lafayette Parish Sch. Bd., 09-2195, p. 12 (La. 7/6/10), 41 So.3d 1119, 1127. “The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case | ^differently.” Coutee v. Glob. Marine Drilling Co., 05-0756, p. 5 (La. 2/22/06), 924 So.2d 112, 116. “Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. 05-0756, pp. 5-6, 924 So.2d at 116.

“The manifest error standard of review also applies to ‘mixed questions of law and fact.’ ” Serou v. Touro Infirmary, 12-0089, p. 18. (La.App. 4 Cir. 1/9/13), 105 So.3d 1068, 1083, quoting Brasseaux v. Town of Mamou, 99-1584, pp. 7-8 (La. 1/19/00), 752 So.2d 815, 820-21.

“Conversely, appellate courts review questions of law using the de. novo standard.” Haik, 12-0771, p. 5, 116 So.3d at 724.

RES JUDICATA

“An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant, whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him.” La. C.C.P. art. 921. “The function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. Res judicata can be raised as a peremptory exception. La. C.C.P. art. 927. “If the peremptory exception has been filed after the answer, but at or prior to the trial of the case, it shall be tried and disposed of either in advance of or on the trial of the case.” La. C.C.P. art. 929. “On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931.

“The party urging á peremptory exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence.” SCS Enterprises, Inc. v. St. Pierre, 15-116, p. 6 (La.App. 5 Cir. 9/23/15), 176 So.3d 663, 667. “Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2148, p. 6 (La. 5/21/08), 983 So.2d 84, 88. Further, “[documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” Id. “Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.” Id.

It is undisputed that neither party introduced evidence or testimony at the hearing on the exception of res judicata. As such, this Court does not have a complete record to review the trial court’s judgment. Accordingly, we vacate the trial court’s judgment and remand the matter for an evidentiary hearing. See Coston v. Seo, 12-0216 (La.App. 4 Cir. 8/15/12), 99 So.3d 83; Porter v. Louisiana Citizens Prop. Ins. Corp., 11-0101 (La.App. 4 Cir. 8/31/11), 72 So.3d 946; Triss v. Carey, 00-0608 (La.App. 4 Cir. 2/7/01), 781 So.2d 613; In re Succession of Carlton, 11-288 (La.App. 3 Cir. 10/5/11), 77 So.3d 989; Brielle’s Florist & Gifts, Inc. v. Trans Tech. Inc., 11-260 (La.App. 3 Cir. 10/5/11), 74 So.3d 833; SCS Enterprises, Inc., 15-116, 176 So.3d 663; Rudolph v. D.R.D. Towing Co., LLC, 10-629 (LaApp. 5 Cir. 1/11/11), 59 So.3d 1274.

DECREE

For the above-mentioned reasons, we find that the parties failed to introduce evidence at the hearing on the exception of res judicata. Therefore, we vacate the trial court’s judgment and remand the matter for further proceedings consistent with this opinion.

VACATED AND REMANDED

      . It is undisputed that Cox’s predecessor orlg-inally negotiated with Mr. White.


author: PERRET, Judge.

text:
    Jackie WHITE v. FUEL PLUS, LLC, et al.
    WCA 17-125
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      Karen Reiners Winfrey, 6031 Dawnridge Court, Baton Rouge, LA 70817, (225) 892-5653, COUNSEL FOR DEFENDANT/APPELLANT: Fuel' Plus Too, LLC, The Louisiana Restaurant Association
    Maria A, Losavio Losavio, Law Firm, LLC, 1821 MacArthur Drive, Alexandria, LA 71315-2420, (318) 767-9033, COUNSEL FOR PLAINTIFF/APPELLEE: Jackie White
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M, Keaty, and Candyce G, Perret, Judges.
   PERRET, Judge.

lain this workers’ compensation case, plaintiff/appellee, Jackie White, was injured when boiling water and toxic cleaning chemicals spilled on her feet. She was working for defendant employer, Fuel Plus Too, LLC (“Fuel Plus”). Thereafter, Ms. White’s treating physician requested authorization for a surgery involving a bilateral trans metatarsal amputation of her feet, with flaps, inpatient hospitalization, and treatment. The defendant insurer, the Louisiana Restaurant Association, hired Novare Utilization Review (“UR”), which recommended approval of the surgery and treatment, and the defendants initially approved the request; however, the adjuster rescinded the approval and denied the surgery two days before the scheduled date. The Workers’ Compensation Adrninistration’s Medical Director also denied the recommended medical treatment stating that the “procedure is not covered by' the guidelines.” Ms. White appealed this decision to the Workers’ Compensation Judge (“WCJ”), who, after a hearing, reversed the decision of the Medical Director and granted authorization for the surgery and post-operative care. The defendants brought this appeal. For the following reasons, 'we affirm the WCJ’s decision and amend the judgment to include an award of attorney’s fees in the amount of $5,000.00, and a penalty award in the amount of $2,000.00. We also award additional attorney’s fees of $3,000.00 to Ms. White for work on this appeal.

FACTS

On January 11, 2016, Ms. White was working for Fuel Plus when she spilled hot water and chemicals on her feet while cleaning out a cooking fryer that contained grease. Ms'. White alleged injuries to'her feet, and her claim was accepted as com-pensable by Fuel Plus and its workers’ compensation carrier, Louisiana Restaurant Association. Thereafter, Ms. White began receiving indemnity benefits and necessary medical treatment.

|sOn March 16, 2016, Dr. Darrell Henderson began treating Ms. White for the chemical and thermal burns on her feet. In April 2016, Dr. Henderson filed a form 1010 with the defendants requesting authorization for Ms. White to undergo a bilateral metatarsal amputation of her feet, with flaps, and inpatient hospital stay and treatment thereafter. On April 22, '2016, the defendants’ UR doctor (a licensed orthopedist) opined that the surgery and post-operative care being recommended by Dr. Henderson' was medically necessary and reasonable and approved the request. Specifically, the UR approval stated as follows:

In this case, the patient still had hy-perextension of the tbes at approximately 45 degrees to 50 degrees. The patient had extreme pain when trying to flex or extend the toes. Putting pressure on the metatarsals did riot cause much pain, but putting pressure on the top part of the feet caused pain. The provider has extensively explained the medical necessity and appropriateness of the requests. The provider has discussed the seriousness and the possible outcomes of the surgical plan with rehabilitation. The provider has documented extensively the plan, possible outcome, and course associated with this request. The request is supported by the guidelines. Thus, the request is medically necessary.

However, in May of 2016, the adjuster rescinded the approval and denied the surgery. .

Ms. White timely filed a form 1009 to request a medical review of the claim with the Office of Workers’ Compensation Administration (“OWCA”). On June 24, 2016, Dr. Jason Picard, the Associate Medical Director, denied the medical treatment due to the procedure’s not being covered by the guidelines. Ms. White timely filed a form 1008 Disputed Claim for Compensation, seeking to have the denial reviewed by the WCJ. Thereafter, on October 6, 2016, the WCJ overturned Dr. Picard’s ruling and ordered the defendants to authorize the surgery.

The defendants now appeal the WCJ’s judgment, arguing the following two assignments of error: (1) whether the trial judge erred in reviewing the appeal as a | ¿“variance” from the Louisiana medical reimbursement guidelines; and (2) whether the trial judge erred in failing to review the appeal as a request for medical benefits pursuant to the medical guidelines.

Ms. White answered the appeal, asserting as error the trial court’s failure to award penalties and fees. She argues that she is entitled to penalties and attorney’s fees for the defendants’ failure to authorize the surgery recommended by Dr. Henderson and also authorized by their UR doctor. Ms. White further argues that she is entitled to attorney’s fees as a result of the work necessitated by the defendants’ appeal.

STANDARD OF REVIEW

“Factual findings in workers’ compensation cases are subject to the manifest error/clearly wrong standard of review.” Turner v. Lexington House, 14-1264, p.4 (La.App. 3 Cir. 4/15/15), 176 So.3d 1071, 1076 writ denied, 15-952 (La. 8/28/15), 176 So.3d 405. Under this rule, the reviewing court does not decide whether the WCJ was right or wrong, but only whether its findings are reasonable. Buxton v. Iowa Police Dep’t., 09-0520 (La. 10/20/09), 23 So.3d 275. “However, where legal error interdicts the fact-finding process, the manifest error standard is no longer appropriate^] and the appellate court will conduct a de novo review.” Shailow v. Gulf Coast Social Servs., 15-91, p. 4 (La.App. 3 Cir. 6/10/15), 166 So.3d 1239, 1244, writs denied, 15-1336, 151355 (La. 10/9/15), 178 So.3d 1002 and 1003 (citing Guillory v. Wal-Mart Stores, Inc., 01-127 (La.App. 3 Cir. 10/3/01), 796 So.2d 772, writ denied, 01-2988 (La. 1/25/02), 807 So.2d 844).

DISCUSSION

The issue before this court is whether, the. WCJ correctly reversed the decision of the OWCA Medical Director and ordered defendants to authorize Ms. White’s request for surgery involving a bilateral trans metatarsal amputation of feet with flaps, and a ten day stay in the hospital for post-operative care with | (¡hyperbaric oxygen therapy. The Louisiana Supreme Court, in Church Mutual Insurance Co. v. Dardar, 13-2351, p. 5 (La. 5/7/14), 145 So.3d 271, 275-76, addressed the applicability of La. R.S. 23:1203.1, which provides for the adoption of a medical treatment schedule for use in making medical treatment decisions in workers’ compensation matters, and stated.as follows:

Enacted by the legislature in 2009, La. R.S. 23:1203.1 is the product of a combined endeavor by employers, insurers, labor, and medical providers to establish meaningful guidelines for the treatment of injured workers. 1 DENIS PAUL JUGE, LOUISIANA WORKERS’ COMPENSATION, § 13:6 (2d ed.2013). Dissatisfied with a process for obtaining needed medical treatment that was cumbersome, uncertain and often fraught with expense, employers and their insurers perceived a need for guidelines that would assure them -that the treatment recommended by a medical provider was generally recognized by the medical community as proper and necessary. Id. In a similar vein, labor and their medical providers were concerned- about the unreasonable delays regularly encountered in obtaining approval for treatment when disputes arose as to the necessity for the treatment and with having a procedure for obtaining approval for treatment that might vary from established guidelines. Id. Thus, La. R.S. 23:1203.1 was enacted with the express intent “that, with the establishment and enforcement of the medical treatment schedule, medical and surgical treatment, hospital care, and other health care provider services shall be delivered in an efficient and timely manner to injured employees.” La. R.S. 23:1203.1(L).
The court in Dardar further articulated:
With the express intent of delivering health care services to injured employees “in an efficient and timely manner,” La. R.S. 23:1203.1 adopts evidence-based medicine as the guidepost for assessing whether the medical care required .to be provided under La. R.S. 23:1203 is necessary. To that end, La. R.S. 23:1203.1 requires the promulgation of a medical treatment schedule, which consists of a list of preauthorized procedures, administratively developed and approved according to criteria set forth by the statute. These preauthorized procedures provide a benefit and advantage to injured workers and their treatment providers who are relieved of the burden of establishing the medical necessity of the | npreauthorized procedures and, at the same time, impose a clear-cut obligation on employers. By their terms, La. R.S. 23:1203.1 and the medical treatment schedule do not exclude any particular care. Instead, these provisions represent and reflect a rational policy choice by the legislature to confer authority on the Director of the OWC, with the assistance of the medical advisory council and the medical director, to determine in advance the medical - necessity for certain medical care, in particular circumstances, in order to avoid case-by-case disputes and variations and to streamline the process.

Id. at 284 (emphasis added) (footnotes omitteil).

At the hearing, the WCJ. reviewed the UR report and pertinent statutes in open court and,found that Ms. White provided clear and convincing evidence that she is entitled to the trans metatarsal amputations and that the defendants, and the OWCA Medical Director erred in denying the request.

On appeal, the defendants merely argue' that the WCJ erred in reviewing the requested medical treatment as one not covered by the guidelines and that the WCJ “assumed the request was for a variance and ignored the fact that the Form 1010 did not seek a variance from the guidelines.” The defendants further argue that the WCJ ignored the fact that the ruling by the OWCA- Medical Director made no reference to a request for a variance. Thus, the defendants allege that, because the appeal of the request was reviewed improperly by the WCJ, his decision, to overturn the OWCA Medical Director is also improper and that the case should be remanded to the WCJ for a proper review.

Conversely, Ms. White argues that the OWCA Medical Director’s basis of the denial of the surgery was in error because the Louisiana Medical Treatment Guidelines specifically contain- authorization for amputation of portions of the lower extremity in Chapter 23, Section 2313, which specifically authorizes amputation of “non-useful or non-viable portions of the extremity.” Thus, Ms. White argues that the amputation of the toes is a pre-authorized medical treatment.and that the defendants’ variance argument is a red herring because, there is no , ^variance required for the surgery. Further, Ms. White argues that even if the post-operative care, including the ten days of inpatient hospitalization and the hyperbaric oxygen .therapy to increase healing, is not covered under the Louisiana Medical Treatment Guidelines, the 1009 form promulgated by OWCA does not require her to cheek off whether it’s a variance or not.

After a review of the record and the pertinent' law, we find no merit in the defendants’ assignment of error that the WCJ improperly reviewed this appeal as a “variance” from the procedures allowed by the medical guidelines. Rather, we find that the WCJ correctly stated his findings that the amputation of the toes is a recoge nized evidence-based, pre-authorized medical treatment under the Louisiana Medical Treatment Guidelines and that although the ten days of inpatient hospital stay and hyperbaric therapy is not covered under the guidelines, it is covered-under other-recognized evidence-based • ■ treatment guidelines, such as the Official Disability Guidelines-Treatment in Workers’ Compensation (referred to as “ODG-TWC” or “ODG”), which were the basis of the. UR doctor’s determination that the inpatient stay and hyperbaric treatment was medically necessary. ■

More specifically, La. R.S, 23:1203.1 allows the use of guidelines accepted by other states as long as they meet the same specific criteria used in promulgating the Louisiana Medical Treatment Schedule (often referred to as Guidelines), Louisiana Revised Statutes-23:1203.1 (emphasis added), entitled “Definitions; .medical treatment schedule; medical advisory council,” provides in pertinent part:

C. The schedule shall be developed by the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients, integrating clinical ex-' pertise, which is the proficiency and judgment that clinicians acquire through clinical experience arid clinical practice, "with the best available external clinical evidence from systematic research.
|SD. The medical treatment schedule shall be' based on guidelines which shall meet all of the following criteria:
(1) Rely on specified, comprehensive, and ongoing systematic medical literature review.
(2) Contain published criteria for rating studies and for determining the overall strength of the medical evidence, including the size of the sample, whether the authors and researchers had any financial interest in the product or service being studied, the design of the study and identification of any bias, and the statistical significance of the study.
(3) Are current and the most recent version produced, which shall mean that documented evidence can, be produced or verified that the guideline was developed, reviewed, or revised within the previous five years.
(4) Are interdisciplinary and address the frequency, duration, intensity, and appropriateness of treatment procedures and modalities for all disciplines commonly performing treatment of employment-related injuries and diseases.
(5) Are, by statute or rule, adopted by any other state regarding medical treatment for workers’ compensation injuries, diseases, or conditions.

I. After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment due, pursuant to R.S. 23:1203 et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule. Medical care, services, and treatment that varies from the promulgated medical treatment schedule shall also be due by the employer when it- is demonstrated to the medical director of the office by a pre-. pondérame of the scientific medical evidence, that a variance from the medical treatment schedule is reasonably required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances.

J. (1) After a medical provider has submitted to the payor the request-for authorization and the information -required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of | ntheir action on the request within five business days -of receipt- of the request. If any dispute arises after January 1, 2011, as" to whether the recommended care, services, or treatment is in accordance with, the medical treatment schedule, or whether a variance from the medical treatment schednde is reasonably required as- contemplated 'in Subsection I of this Section, any aggrieved party shall file, within fifteen‘calendar days, an a/ppeal with the office of workers’ compensation administration medical director or associate medical director on a form promulgated by the director. The medical director, or associate medical director shall render a decision as soon as is practicable; but in [any] event, not more than thirty calendar days.from the date of filing.

‘ ' M. (1) With regard to all treatment not covered by the medical treatment schedule promulgated in accordance with this Section, all medical care, services, and treatment shall be in accordance with Subsection D of this Section.

In this case, the. UR-report. from the professional reviewing company, Novare Utilization Reviéw, ‘ found all of the requested procedures medically necessary. The medical schedule that it used to review the amputation surgery was the Louisiana Medical Treatment Schedule discussed above in La. R.S. 23:1203.1. That schedule is found at Louisiana Administrative Code, Title 40, Part I, Section 2313 (LAC 40.1.2313). The UR quoted the specific language-from the Code-to support its approval for the amputations. Thus, no variance was needed for, the surgery.

The UR report stated that the ten-day post-operative hospitalization was not addressed in Louisiana’s Medical Guidelines. Therefore, the reviewing company used length-of-stay guidelines-for amputations, burns, and skin grafts from the Official Disability, Guidelines, or ‘ ODG, quoting specific language and section numbers approving the requested hospitalization. As for the hyperbaric oxygen therapy, the UR again relied on the ODG, which stated that this therapy could improve the healing of wbunds. The UR noted' that Louisiana’s guidelines, at I mSection 2311, did not recommend the therapy for non-operative lower extremity fractures. However, there is no evidence that the therapy is'"not recommended for serious wounds such as acid-burned feet that require partial amputations. Therefore, the post-operative hospitalization and the oxygen treatments are supported by the ODG; and, have' not been shown to be disallowed by Louisiana’s Guidelines, indicating .that no variance is required for that care either. Research reveals that Texas, Hawaii, Illinois, Ohio, California, Arizona, New Mexico, Indiana, District.of Columbia, Oklahoma, and Tennessee have adopted. or rely upon the ODG in determining whether to approve medical treatment, though this list is not meant to be exhaustive. The most concise excerpt explaining the ODG states:

A. The Industrial Commission of Arizona (Commission) has adopted the Work Loss. Data Institute’s Official Disability Guidelines—Treatment in Workers Compensation (ODG) as the standard reference for evidence-based medicine used in treating injured workers within the context of Arizona’s workers’ compensation system. By adopting and referencing the most recent edition (at the time of treatment), and continuously updated Official Disability Guidelines, the Commission can ensure the latest available medical evidence is used in making medical treatment decisions for injured workers.

Ariz. Admin. Code R20-5-1301.

Our research indicates that the ODG satisfies the criteria of La. R.S. 23:1203.1(D) and (M)(l). There is nothing in those paragraphs indicating that a variance is required if Louisiana guidelines do not address the treatment, and the guidelines used meet the criteria of the statute. We find that the WCJ correctly | nreversed the Medical Director’s decision and ordered the defendants to authorize the medical treatment.

Ms. White argues in her answer to the appeal that an award for penalties and attorney’s fees is warranted because the defendants did not have sufficient medical information to reasonably controvert her request for the medical treatment and failed in their continuing duty to investigate the claim before denying it. We agree.

Louisiana Revised Statutes 23:1201 governs the award of penalties and attorneys fees in workers’ compensation cases. The failure to authorize necessary medical treatment is considered a failure to furnish medical benefits, as required by La. R.S. 23:1203, and will subject the employer to penalties and attorney’s fees pursuant to La. R.S. 23:1201(F). However, penalties and attorneys fees “shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201(F)(2).

Dr. Henderson’s medical records reflect consistent symptoms and reports of pain and toe disfigurement throughout- his treatment of Ms. White. Further, defendants .had in their possession, at the time they denied the surgery,, their own UR doctor’s report that recommended surgery and post-operative care as being medically necessary and reasonable. There is nothing in the record that reasonably controverted Ms. White’s request, yet the adjuster denied it nonetheless. Considering the evidence in the record, the medical opinion of Dr. Henderson, and defendants own UR doctor’s opinion dated April 22, 2016, finding that the amputation and inpatient hospital. stay with hyperbaric therapy was medically necessary, we find that Ms. White is entitled to an award for penalties and attorney’s fees for the defendants’ failure to authorize said surgery and post-surgery care. Accordingly, we amend the judgment, to include an award .for a |1gpenalty in the amount of $2,000.00, and an award of attorney’s fees in the amount of $5,000.00.

Ms. White also seeks additional attorney’s fees for this appeal. It is within the appellate court’s discretion to award or increase attorney’s fees to a workers’ compensation claimant for defending an unsuccessful appeal. Frith v. Riverwood, Inc., 04-1086 (La. 1/19/05), 892 So.2d 7. Accordingly, we find that an additional.award of $8,000.00 is appropriate to compensate Ms. White’s counsel for work performed in connection with this appeal.

DECREE

We amend the judgment to include a penalty award of $2,000.00, and an award for attorney’s fees in the amount of $5,000.00. Further, the judgment is amended to award Ms. White additional attorney’s fees of $3,000.00 for work done in the appellate court. The judgment, as amended, is affirmed. .

AMENDED, AND AS AMENDED, AFFIRMED.

      . Under La. R.S. 23:1203.1, the medical director is a physician who is licensed to practice medicine in the State of Louisiana and has been chosen by the director of the Office of Workers’ Compensation Administration for settling disputes.

      . For example, see, 28 Tex. Admin. Code § 137.100; 85A Okl.St.Ann. § 16; Term. Code Ann. § 56-6-705; Haw. Admin. Code § 12-15-32; Cal. Code Regs. tit. 8, § 9792.20; Ariz.Admin. Code R20-5-1301; N.M. Admin. Code 11.4.7; and 631 Ind. Admin. Code 1-1-32. See also, Rufina Delgado, Petitioner v. Sure Staff, Inc., Respondent, 11 IL.W.C. 38020 (Ill. Indus. Com’n 5-3-13), 2013 WL 3381143; State ex rel. Wilson v. Indus. Comm., 11AP-48, (Ohio Ct. App. 1/31/12), 2012 WL 266369; In the Matter of Latanya M. Walker, Claimant v. Hadley Mem'l Hosp. c/o Specialty Hosps. of Am., & Chartis Co., Employer/carrier, AHD 11-072, (D.C. Dept. Emp. Srvs. 3/2/12), 2012 WL 1320204.