author: Judge Rosemary Ledet

text:
    ROADRUNNER TRANSPORTATION SYSTEMS v. Anita BROWN d/b/a Browns Transport and Ooida Risk Retention Group, Inc.
    NO. 2017-CA-0040
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 2017

      Bradley J. Luminais, Jr., Jade C. McKeough, WAGAR RICHARD KUTCHER TYGIER & LUMINAIS, LLP, 3850 North Causeway Boulevard, Two Lakeway Center, Suite 900, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Christopher M. G’sell, Alan J. Yacoubi-an, JOHNSON, YACOUBIAN & PAYSSE, 701 Poydras Street, Suite 4700, New. Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   Judge Rosemary Ledet

| ¶ This is an insurance coverage dispute arising out of a claim under a Motor Truck Cargo Liability Policy. From the trial court’s judgment granting the motion for-summary judgment filed by the defendant-insurer, OOIDA Risk Retention Group, Inc. (“OOIDA”), the plaintiff, Roadrunner Transportation Systems (“Roadrunner”), appeals. The defendant-insured, Anita Brown, d/b/a Browns Transport (“Ms. Brown”), is not a party to this appeal. Finding merit to Roadrunner’s argument that.it was premature for the trial court to grant summary judgment given the lack of adequate discovery, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Roadrunner contracted with a third party, Sage V. Foods (“Sage”), to arrange for the transportation of á shipment of frozen rice from Little Rock, Arkansas to Ontario, California. Róadrunnér, in turn, contracted with- Ms.' Brown to transport the frozen rice. The transportation schedule called for the shipment to be picked up on May 18, 2015, from Sage in Little Rock, Arkansas, and for it to be ^delivered by May 21, 2015, to a warehouse in Ontario, California. Pursuant to this contract, Ms. Brown transported the frozen rice product in a truck owned, operated, and maintained by her. Upon arrival at the warehouse in California, the frozen rice shipment was tested and found to be spoiled. Sage rejected’ áñd destroyed the spoiled rice on May 27, 2015. Sage demanded reimbursement from Roadrunner for the loss of the frozen rice shipment, totaling $42,303.54, which Roadrunner paid.

Contending that the loss of the shipment was the result of Ms. Brown’s failure to keep the rice properly cooled while being transported, Roadrunner commenced this suit on January 26, 2016, against Ms. Brown and her insurer, OOIDA. In its petition, Roadrunner averred that Ms. Brown’s negligence, which caused the loss of the frozen rice shipment, consisted of the following non-exclusive particulars: failing to properly use, operate, and maintain the truck or trailer; failing to sufficiently cool the product; and failing to follow standard industry practices regarding transport of frozen goods.

On March 31, 2016, OOIDA answered the petition solely on its own behalf. In its answer, OOIDA acknowledged that it issued a policy of insurance to Ms. Brown; however, it denied coverage of Roadrunner’s claim. On June 15,2016, OOIDA filed a motion for summary judgment, seeking a determination that there was no coverage for Roadrunner’s claim under the policy it issued to Ms. Brown. |aThe only evidence OOIDA offered in support of its summary judgment motion was Roadrunner’s petition and OOIDA’s policy. In its memorandum in support of its motion, OOIDA cited the following provisions of the Motor Truck Cargo Liability Policy it issued to Ms. Brown:

INSURING AGREEMENT
In consideration of the premium paid hereon. ... Underwriters hereby agree to indemnify the Insured for all risks of physical loss or damage from an external cause to lawful cargo in and/or on a covered truck while in their care, custody or control in the ordinary course of transit, including loading and unloading by the Insured, during the period of insurance specified in this Policy, while such covered [trucks] are within the contiguous states of the United States of America, the District of Columbia, Alaska (subject to condition 2) and Canada.
THIS INSURANCE BEING SUBJECT TO ALL THE PROVISIONS, DEFINITIONS, EXCLUSIONS, TERMS AND CONDITIONS CONTAINED IN THE FOLLOWING WORDING.
* * *
EXCLUSIONS
This insurance does not cover:
5. Loss or damage caused by spoilage, contamination, deterioration, freezing, rusting, electrical and/or mechanical failure, and/or damage to refrigerated and/or temperature controlled cargo
UNLESS CAUSED BY OR RESULTING FROM:
(a) fire, lightning, or explosion;
(b) accidental collision of the covered truck with any other vehicle or object;
(c) overturning of the covered truck;
* * *
|4(h) theft;
(i) stranding, collision, burning, grounding or sinking of ferry while the covered truck is on board.
11. Loss or damage caused by or resulting from mildew, decay, mold, insects, vermin, insufficiency of insulation or packing, improper securement, wear, tear, gradual deterioration, or natural loss in weight or volume.
CONDITIONS
24. REFRIGERATION BREAKDOWN
Where applicable this policy shall cover the Insured’s legal liability for loss of or damage to refrigerated and or temperature controlled cargo but only when such loss and or damage is conclusively proven to have been caused by mechanical failure of or breakdown of automatic temperature control unit.

OOIDA contended that there is no coverage arising out of the above Insuring Agreement because the loss Roadrunner is claiming did not result from an external cause. In support, OOIDA cited its enumeration of the following Undisputed Material Facts:

• The tractor-trailer in question transporting the frozen food product was not involved in an accident while in transit.
• The refrigeration unit of the trailer in question transporting the frozen food product did not experience any mechanical breakdown or failure while in transit.
• There was no external cause associated with any loss or damage to lawful cargo in and/or on a covered truck.

In addition, OOIDA contended that coverage for any such loss is specifically excluded under the policy Exclusions Numbers 5 and 11, quoted] K above. As to Exclusion Number 5, OOIDA further contended that the alleged spoilage claimed by Roadrunner did not result from the exclusive list of exceptions to that exclusion.

Opposing the motion, Roadrunner made the following three arguments: (i) it had not been allowed adequate discovery; (ii) the defendant-insured, Ms. Brown, had not been served with either the petition or the summary judgment motion; and (iii) OOI-DA failed to present any evidence to prevail on its summary judgment motion.

At the September 30, 2016 hearing on the summary judgment motion, the trial court initially expressed concern whether adequate discovery had been allowed, stating that “it seems to me it was a very short period of time.” Responding to this characterization of the procedural posture of the case, OOIDA pointed out to the trial court the various dates when pleadings were filed—the petition, on January 26, 2016; the answer, on March 31, 2016; and the summary judgment motion, on June 15, 2016. OOIDA further pointed out that the September 30, 2016 hearing date was scheduled three months after OOIDA’s summary judgment motion was filed, six months after OOIDA’s answer and affirmative defenses setting forth the policy defenses was filed, and eight months after Roadrunner’s suit was filed. Given this timeline, OOIDA argued, and the trial court was'persuaded, that Roadrunner had already been given an opportunity to conduct adequate discovery. The trial court also rejected Roadrunner’s contention that OOIDA failed to present any evidence to evidence to meet its burden of proof as mover, The trial court reasoned that “[t]he policy is evidence enough.”

From the trial court’s October 14, 2016 judgment granting OOIDA’s motion for summary judgment, Roadrunner filed the instant appeal.

| ^SUMMARY JUDGMENT OVERVIEW

An appellate court reviews a trial court’s ruling granting a motion for summary judgment de novo, applying the same standard used by the trial court. Louisiana High School Athletics Ass’n, Inc. v. State, 12-1471, p. 18 (La. 1/29/13), 107 So.3d 583, 598 (citing Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910). In so doing, an appellate court, like a trial court, must determine “whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638; see also La. C.C.P. art. 967 C. The standard for obtaining a summary judgment is set forth in La. C.C.P. art. 966 A(3), which provides that “[a]fter an opportunity for adequate discovery, a motion for- summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact ahd that the mover is entitled to judgment as a matter of law.” '

“[I]n reviewing summary judgments, we remain mindful of which party bears the burden of proof.” Orleans Parish School Bd. v. Lexington Ins. Co., 12-0095, p. 6 (La.App. 4 Cir. 8/28/13), 123 So.3d 787, 790. The burden of proof on a 17motion for summary judgment is governed by La. C.C.P. art. 966 D(1), which provides for a shifting burden of proof.

Despite the legislative mandate that the summary judgment procedure is favored, the jurisprudence has recognized that “any doubt as to a dispute regarding a material issue of fact müst be resolved against granting the motion and in favor of a trial on the merits.” Bridgewater v. New Orleans Reg’l Transit Auth., 15-0922, pp. 5-6 (La.App. 4 Cir. 3/9/16), 190 So.3d 408, 412, writs denied, 16-0632 (La. 5/20/16), 191 So.3d 1071). The determination of whether a fact is material turns on the applicable substantive law. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751.

DISCUSSION

The dispositive issue in this case is whether there is a genuine issue of material fact that OOIDA’s policy provides coverage for Roadrunner’s loss. The | ^applicable substantive law imposes on Roadrunner—standing in the insured’s (Ms. Brown’s) shoes—the burden of proving that the incident falls within the terms of the policy; whereas, the law imposes on OOIDA—as the insurer—the burden of proving the applicability of a policy exclusion. See Rosen v. United Services Auto. Ass’n, 12-0284, p. 4 (La.App. 4 Cir. 11/14/12), 104 So.3d 633, 637. The law also imposes on an insurer the burden of providing some factual basis not only that an exclusion to the policy applies, but also that an exception to the exclusion is not present. Veuleman v. Mustang Homes, LLC, 13-190 (La. 4/5/13), 110 So.3d 572.

“Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment.” Bernard v. Ellis, 11-2377, p. 9 (La. 7/2/12), 111 So.3d 995, 1002 (citing Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945). Applying this principle, this court held in Orleans Parish School Bd. v. Lexington Ins. Co., 12-1686, p. 30 (La.App. 4 Cir. 6/5/13), 118 So.3d 1203, 1223, that “[w]hen the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent (La. C.C. art. 2046); and additional discovery cannot change the result.” Id.

•This is not a case in which an insurer is seeking summary judgment based on undisputed facts and simply seeking an interpretation of its policy based on those | ¡¡facts. Indeed, at the hearing on the motion, OOIDA acknowledged that “[t]his motion seeks to adjudicate the fact that plaintiffs have no evidence to prove that the trailer was involved in an accident or a collision or any other type of external cause which would have disabled the refrigeration unit.” The existence of an external cause is a factual issue.

Before the trial court, OOIDA relied on its statement of Undisputed Material Facts, quoted earlier, as establishing that none of the events triggering coverage, including an external cause for the loss, occurred. As Roadrunner points out, the sole basis for OOIDA’s statement , of Undisputed Material Facts was the aver-ments of Roadrunner’s petition and the terms of OOIDA’s policy. In its initial petition, Roadrunner did not unambiguously aver that the spoilage resulted from an excluded cause: Rather, it averred that the negligence claims it was asserting against Ms. Brown were non-exclusive, creating the possibility of coverage based on further discovery. Contrary to OOIDA’s sug-gestión, and the trial court’s |lflapparent conclusion, the issue of an external cause for the loss is a disputed issue of material fact, which precludes the granting of summary judgment.

Regardless, we End merit to Roadrunner’s contention that summary judgment was prematurely granted given that it has not been given the opportunity to conduct adequate discovery to present its claims. As noted earlier, the standard for obtaining a summary judgment is set forth in La. C.C.P. art. 966 A(3). The 2015 Comments to La. C.C.P. art. 966 provide that subpar-agraph A(3) does not change the law and that this subparagraph “makes clear that a motion for summary judgment should be heard and granted only after there has been an opportunity for adequate discovery.” 2015 Comments to La. C.C.P. art. 966. Continuing, the |¶12015 Comments state that “[a] continuance should be granted to a party who has not had adequate time to conduct discovery relating to the issues in the motion.” Id.

When discovery is alleged to be incomplete, a trial court has the discretion either to hear the summary judgment motion or to grant a continuance to allow further discovery. Simoneaux v. E.I. du Pont de Nemours and Co., 483 So.2d 908, 912 (La. 1986); Eason v. Finch, 32,157, p. 7 (La.App. 2 Cir. 8/18/99), 738 So.2d 1205, 1210. In this procedural context, a trial court’s choice to hear a motion for summary judgment or to grant a continuance is reviewed under an abuse of discretion standard. Rivarde v. City of New Orleans, 15-0655, p. 5 (La.App. 4 Cir. 3/9/16), 190 So.3d 400, 403, writ denied, 16-0670 (La. 5/27/16), 192 So.3d 744.

Construing Article 966, this court has held that “[although the language of article 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case.” Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Grp.), Ltd., 03-1600, pp. 3-4 (La.App. 4 Cir. 3/3/04), 868 So.2d 967, 969. Similarly, the Louisiana Supreme Court, construing that Article 966, has held that “[ujnless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact.” Simoneaux, 483 So.2d at 913.

Addressing an adequate discovery claim, the jurisprudence has identified the following four relevant factors for the court to consider:

|l2(i) whether the party was ready to go to trial,
(ii) whether the party indicated what additional discovery was needed,
(iii) whether the party took any steps to conduct additional discovery during the period between the filing of the motion and the hearing on it, and
(iv) whether the discovery issue was raised in the trial court before the entry of the summary judgment.

Bass Partnership v. Fortmayer, 04-1438, p. 10 (La.App. 4 Cir. 3/9/05), 899 So.2d 68, 75 (citing Greenhouse v. C.F. Kenner Associates Ltd. Partnership, 98-0496, p. 3 (La. App. 4 Cir. 11/10/98), 723 So.2d 1004, 1006). Applying those factors to the instant case supports our finding that adequate discovery has not been allowed here.

First, the readiness of the parties to go to trial is inapposite; this case has not been set for trial. Second, Roadrunner indicated that it needed to conduct additional discovery to determine what caused the loss of the shipment and to address OOI-DA’s coverage defenses. Third, the record reflects that Roadrunner took several steps to conduct discovery, including attempting to locate Ms. Brown, before the summary judgment hearing; those steps were as follows:

• On August 5, 2016, Roadrunner filed a Motion to Compel OOIDA to answer Roadrunner’s outstanding discovery requests. Its discovery requests, which were issued on May 26, 2016, Roadrunner sought information regarding OOIDA’s coverage defenses. Before Roadrunner’s motion to compel was heard, however, OOIDA answered the discovery responses, providing a copy of its policy. Moreover, in its responses, OOIDA stated that “discovery is ongoing.”
• Also on August 5, 2016, Roadrunner filed a Motion to Appoint Curator to represent Ms. Brown, who Roadrunner had been unsuccessful in serving with the petition and who was alleged to be an “absent defendant.” In its brief to this court, Roadrunner represents that “[ojnce that motion was granted, Roadrunner propounded written discovery on the insured, but as of this filing, the discovery was not answered.”
lis* On September 14, 2016, Roadrunner filed a Motion for Leave to File First Supplemental and Amended Petition for Damages. In its motion for leave to amend, Roadrunner alleged that it was seeking to clarify its averments regarding Ms. Brown’s failure to properly use, operate, and maintain the truck or trailer and to assert additional claims under res ipsa loquitur and La. C.G. Arts. 2317 and 2317.1.

Fourth, and finally, Roadrunner raised the issue of lack of adequate discovery before the trial court both in its memorandum in opposition to the motion and at the hearing on the motion. Indeed, the trial court at the hearing on the motion acknowledged its concern regarding whether adequate time for discovery had. been allowed; however, the trial court was persuaded by OOIDA’s argument regarding the timeline. Taken together, these four factors support Roadrunner’s position that the trial court abused its discretion in failing to allow adequate discovery before ruling on OOIDA’s summary judgment motion.

When addressing an adequate discovery claim, this court has recognized another factor that may be considered is whether discovery has been hindered by a circumstance beyond an opponent’s control. See Bourgeois v. Curry, 05-0211, p. 10 (La. App. 4 Cir. 12/14/05), 921 So.2d 1001, 1008 (holding that, in the appropriate factual context, a court can “be receptive, to an argument that discovery has been hindered by some circumstance beyond the [opponent’s] control.”). This court, however, cautioned that the need for additional time to conduct discovery based on such a hindering circumstance should be documented in the record; the need should be “expressed in a motion to continue, motion to compel, or other pleading.” Id. Such is the case here.

Roadrunner’s inability to locate Ms, Brown resulted in a circumstance beyond its control that hindered its attempts to discover information it needed to defend against OOIDA’s coverage defenses. Roadrunner emphasizes that Ms. [uBrown is the party best suited to respond to its discovery requests and that it has been unable to locate her; as Roadrunner points out in its appellant brief, “despite its many efforts, [it] has not had the chance to undertake discovery of the party in the best position to confirm the exact cause of the loss of the frozen rice product, OOI-DA’s insured, [Ms.] Brown.” Roadrunner’s inability to locate Ms. Brown is documented in a pleading in the record—its motion to appoint a curator to represent Ms. Brown as an absent defendant in this case.

In rejecting Roadrunner’s contention regarding inadequate discovery, the trial court, agreeing with OOIDA, relied solely on the timeline of the procedural events in this case. The atypical circumstances presented in the instant insurance coverage dispute—an unserved, absent defendant-insured—illustrate the need to consider other factors in conjunction with the time-line in determining the adequate discovery issue. See Rogers v. Hilltop Retirement & Rehabilitation Ctr., 13-867, pp. 4-5 (La. App. 3 Cir. 2/12/14), 153 So.3d 1053, 1058 (noting that “[t]he trial court may take into consideration such factors as diligence, good faith, reasonable grounds, fairness to both parties and the need for the orderly administration of justice” in addressing the adequate discovery issue).

Viewed in context, the timeline here— only eight months between the filing of the petition and the summary judgment motion hearing—was relatively short. Indeed, as noted earlier, the trial court described it as “a very short period of time.” Given the presence of a hindering circumstance coupled with the relatively short timeline, we find it was an abuse of discretion for the trial court to refuse to allow Roadrunner to conduct adequate discovery before deciding the summary judgment motion.

| ^DECREE

For the forgoing reasons, the judgment of the trial court granting the motion for summary judgment filed by OOIDA is reversed. This matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

      . As discussed elsewhere in this opinion, Ms. .Brown could not be served with .the petition. As a result, Roadrunner filed a Motion to Appoint a Curator to represent her in this suit as an "absent defendant.” Roadrunner’s motion was granted, and a curator was appointed on August 16, 2016. The record reflects that the curator did not answer the petition until November 16, 2016, which was after OOIDA's motion for summary judgment was granted.

      . La. C.C.P. art. 967 C provides as follows:
      If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

      . All references in this opinion-to La. C.C.P. art. 966 are to this article as amended by 2015 La. Acts No. 422, which became effective January 1, 2016. The amendment applies in this case since the motion for summary judgment was filed on June 15, 2016, and decided on October 14, 2016.

      . La. C.C.P. art. 966 D(l) provides as follows:
      The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the, adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is hot entitled to judgment as a matter of law.' ■
      The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case showing that there are no genuine issues of material fact. Rapp v. City of New Orleans, 95-1638, p. 4 (La.App. 4 Cir. 9/18/96), 681 So.2d 433, 437. The movant does not carry his initial burden when he simply "points out” by motion or brief that the plaintiff lacks factual support for any claim against him. See 1 Frank L. Maraist, LA. CIV. L. TREATISE, CIVIL PROCEDURE § 6:8 (2d ed. 2016) (citing Sheppard v. City of Baton Rouge, 02-2421 (La.App. 1 Cir. 9/17/04), 897 So.2d 25).

      ."[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La. App. 3rd Cir. 1991). A "genuine issue” is a "triable issue”—one as to which reasonable persons could disagree. In re Med. Review Panel of Williams v. EMSA Louisiana, Inc., 15-1178, pp. 7-8 (La.App. 4 Cir. 10/21/16), 203 So.3d 419, 425-26; In re Succession of Jones, 14-0642, p. 7 (La.App. 4 Cir. 11/12/14), 154 So.3d 624, 628.

      . The jurisprudence has held that “[s]ummary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied- to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded.” Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183 (citing Westerfield v. LaFleur, 493 So.2d 600, 605 (La. 1986)).

      . See also Hamilton v. Willis, 09-0370, p. 3 (La.App. 4 Cir. 11/4/09), 24 So.3d 946, 948 (rejecting argument that summary judgment was premature, noting that "[aldditional discovery cannot change the motorsports exclusion, which we find to be clear and unambiguous and not leading to absurd consequences”); River Bend Capital, LLC v. Lloyd’s of London, 10-1317, p. 5, 63 So.3d 1092, 1096 (holding that ''[f]urther. discovery ... is ‘ unnecessary where the language is clear and unambiguous as here”).

      .Moreover, Roadrunner filed a motion,-for leave to amend its petition to clarify that its allegations of negligence by adding the fol- , lowing two averments:
      • Failure to properly .operate ■ the truck/trailer, including but not limited to the allegation that Browns’ negligent failure to properly operate the truck/trailer caused an accident and/or collision which caused the loss of the frozen rice;
      • Failure to properly maintain the truck/trailer, including but not limited to the allegation that such failure to properly maintain the truck/trailer caused mechanical failure and or breakdown of the truck/trailer’s refrigeration systems.8
      At this procedural juncture, it would be inequitable to allow an insurer to rely on the averments of the initial petition in a suit by a third party claimant—as opposed to an insured—to grant summary judgment on the issue of coverage. As Roadrunner states in its appellee brief, “an injured party not privy to the terms of the policy in advance of litigation would be required to anticipate potential policy exclusions in preparing its initial pleadings to avoid summary judgment.”

      . According to OOIDA, the trial court, at the motion hearing, resolved the issue of whether there was an external cause in its favor. The colloquy between OOIDA's counsel and the trial court that OOIDA cites for this proposition was as follows:
      MR. G'SELL [OOIDA’s COUNSEL]:

      This motion seeks to adjudicate the fact that plaintiffs have no evidence to prove that the trailer was involved in an accident or a collision or any other type of external cause which would have disabled the refrigeration unit.
      THE COURT:
      And I think all of that’s true.

      . At the motion hearing, the trial court did not specifically address the other issue OOI-DA raises regarding the applicability of the exclusions and the exceptions thereto. On appeal, OOIDA contends that even assuming, arguendo, Roadrunner established that the policy covered the loss, the exclusions to the policy would apply here. OOIDA contends that "there is not a scintilla of evidence indicating let alone proving that the food spoilage alleged by Roadrunner was caused by [one of the exceptions to the Exclusion Number 5—] fire, lightning, explosion, accidental collision of the covered truck, overturning of the covered truck, etc.” OOIDA further contends that "opposing counsel has never seriously argued or even suggested that such an external cause of loss happened.” OOIDA thus contends that there is no basis in the evidence to conclude that an exception is applicable. In the Veule-man case, however, the Louisiana Supreme Court held that an insurer is required to provide some factual basis not only that an exclusion to the policy applies, but also that an exception to the exclusion was not present. Veuleinan, supra. OOIDA’s reliance on Roadrunner’s (opposing counsel's) failure to establish an exception to the exclusion was met thus is misplaced. Regardless, we find merit to Roadrunner's prematurity—lack of adequate discovery—argument and thus find it unnecessary to decide this issue.

      .The 2015 Comments cite Broussard v. Winters, 13-300 (La.App. 3 Cir. 10/9/13), 123 So.3d 902, which held that summary judgment was prematurely decided. In so holding, the court in Winters reasoned that "the trial court's failure to rule on Mr. Broussard’s motion to compel discovery, supports Mr. Brous-sard’s assertion that Farmers' motion for summary judgment was prematurely decided by the trial court because the discovery was incomplete and inadequate.” 13-300 at p. 5, 123 So.3d at 905-06.


source: Caselaw Access Project

author: KYZAR, Judge.

license: Public Domain

text:
    Pat COOPER v. LAFAYETTE PARISH SCHOOL BOARD
    16-169
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2017

      L. Lane Roy, Brown Sims, P.C., 600 Jefferson Street, Suite 800, Lafayette, LA 70501, (337) 484-1240, COUNSEL FOR PLAINTIFF/APPELLANT: Dr. Pat Cooper
    Shelton Dennis Blunt, Paul LeBlanc, Jack B. Stanley, Phelps Dunbar LLP, P. O. Box 4412, Baton Rouge, LA 70821-4412, (225) 346-0285, COUNSEL FOR DEFENDANT/APPELLEE: Lafayette Parish School Board
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John E. Conery, and Van H. Kyzar, Judges.
   ON REHEARING

KYZAR, Judge.

|,This matter is before- us on rehearing from our previous decision. Cooper v. Lafayette Parish School Board, 16-169 (La. App. 3 Cir. 11/23/16), 207 So.3d 1158. We now affirm the judgment of the lower court in part, reverse in part, render, and remand the matter for proceedings consistent herewith.

DISCUSSION OF THE RECORD

Dr. Pat Cooper was hired by the Lafayette Parish School Board (Board) to a three-year term as superintendent of the Lafayette Parish School System (School System), pursuant to a January 1, 2012 written contract. Dr. Cooper, who has a Ph.D. in Education and previous experience as a superintendent in both Louisiana and Mississippi, was hired based on a fíve-to-four vote of the Board and experienced difficulties with the Board from the outset. In addition to the already strained relations between them, the Louisiana Legislature passed 2012 La. Acts No. 1 (hereinafter Act 1), which totally changed the relationship between school boards and superintendents of schools in the state. By the middle of 2014, the Board, who had engaged outside counsel, authorized an investigation into actions taken by Dr. Cooper, which resulted in formal disciplinary charges being levied against him. The charges were as follows:

Charge No. 1: Unworthiness, Inefficiency, Breach of Contract, Failure to Comply with Board Policy and State Law relative to Cooper’s “refusal to comply with or enforce the Board’s directive to terminate the employment of Special Assistant to the Superintendent Thad Welch[.]”
Charge No. 2: Unworthiness, Inefficiency, Breach of Contract, Failure to Comply with Board Policy and State Law relative to Cooper’s “failure to abide by and enforce the Board’s amendment of the approved budget to remove the line item authorizing the 12payment of a salary for the special assistant to the su-perintendente.]”
Charge No. 3: Unworthiness, Inefficiency, Breach of Contract, Failure to Comply with Board Policy and State Law relative to Cooper “directing that public (School Board) funds be used to pay an attorney that he hired, where the purpose of such representation was to advise Dr. Cooper regarding a dispute with, and a possible action against, the School Board.”
Charge No. 4: Unworthiness, Inefficiency, Breach of Contract, Failure to Comply with Board Policy and State Law relative to Cooper’s action “in connection with the payment of select principals in an amount in excess of the Salary Schedule established by the School Board.”
Charge No. 5: Unworthiness relative to Cooper receiving a negative evaluation for his job performance for the 2013-2014 school year by a majority vote of the Board.

Following hearings on November 5 and 6, 2014, the Board held that its counsel had proven by a preponderance of the evidence that Dr. Cooper was guilty of the facts alleged in the first four charges. It further held that the facts of each proven charge constituted unworthiness, inefficiency, breach of contract, and failure to comply with Board policy and state law by Dr. Cooper. Thus, the Board voted seven to two to terminate Dr. Cooper’s employment effective immediately on November 6, 2014.

Dr, Cooper immediately sought review of the Board’s decision from the Fifteenth Judicial District Court in Lafayette Parish, at the conclusion of which, the district court, rejected three of the four charges relied upon by the Board to terminate Dr. Cooper’s employment, but upheld the Board’s decision as to Charge Number Four. Following the denial of motions for new trial, Dr. Cooper appealed |sthe district court’s judgment affirming his termination to this court. The Board answered Dr. Cooper’s appeal, seeking reversal of the district court’s rejection of the three remaining grounds for termination lévied against Dr/Cooper. As indicated previously, this court originally affirmed the district court’s- judgment. We, thereafter, granted this rehearing.

ASSIGNMENT OF ERROR

We set out the assignments of error in our original opinion as follows:

In his one assignment of error, Dr. Cooper asserts that the [district] court “misapplied the law” in sustaining the School Board’s decision on the single count. The School Board answered the appeal asserting that the evidence supported a finding that' the- remaining three charges not relied "on by the district court had sufficient merit to support Dr. Cooper’s dismissal. Additionally, the Board sought an award of “legal costs” against Dr. Cooper.

Id. at 1159.

Based on our finding that rehearing-is warranted in this matter, we reconsider these assignments of error.

OPINION

As noted in our prior opinion, the facts which gave rise to this litigation are not disputed. Thus, the question before this court is whether Dr. Cooper acted within his authority, as -. superintendent of the School System, when he performed the actions which gave rise to the Board’s charges against him. The resolution of this question involves an examination of the substantial effect the enactment of Act 1 had . in transferring the: plenary powers held by elected school boards to appointed superintendents. Dr. Cooper took office as superintendent before the July 1, 2012 Ineffective date of the legislative act and was fired over two years after the legislation was implemented.

Act 1 significantly changed the practical and legal relationship between school boards and their superintendents. Before its effective date on July 1, 2012, La.R.S. 17:81(A) granted broad powers to school boards, including the power to hire teachers and school personnel “by the month or by the year, and to fix their salaries.” As amended and reenacted by Act 1, La.R.S. 17:81(A) now provides as follows:

(1) Each local public school board "shall serve in a policymaking capacity that is in the best interests of all students enrolled in schools under the board’s jurisdiction. When establishing board policies, each board shall prioritize student achievement, financial efficiency, and workforce development on a local, regional, and statewide basis. When choosing a local superintendent of schools, each board shall select a leader who shall prioritize student achievement and act -in the best interests of all students enrolled in schools under the board’s jurisdiction.
(2) Each local public school board shall determine the number of schools to be opened, the location of school houses, and the number of teachers and other school personnel to be employed. The local school superintendent shall have authority to employ teachers by the month or by the year, and to fix their salaries; provided that there shall be no discrimination as to sex in the fixing thereof and provided further, that it is not the- purpose of this Section to require or direct the reduction of any salary, or salary schedule, presently in force. The local school superintendent shall see that the provisions of the state school law are complied with.
(3) Each local public school board shall delegate authority for the -hiring and placement of all school personnel, including those for which state certification is required to the local school superintendent. It shall be the responsibility of the superintendent to ensure that all persons have proper certification, as applicable, and are qualified for the position.
(4)- Each local public school board shall adopt policies for and establish procedures which require .a local school superintendent to:
(a) Delegate to the principal all decisions regarding the hiring or placement of any teacher or other personnel at the school in which the principal is employed, subject to the approval of the local school superintendent.
■|s(b) Consult with teachers prior to making any decisions regarding the hiring or placement of a principal at the school in which such teachers are employed. Any recommendations made by teachers shall not be binding upon the superintendent but shall be considered by the. superintendent when making employment decisions.
(5)Any policies and procedures adopted by a local public school board pursuant to the provisions of this Subsection shall be in accordance with all laws, all state rules, regulations, and policies relative to certification of teachers and other personnel, and any court order or restrictions relative to desegregation. , ,
. (6) The 'Superintendent and the school principal shall make all employment-related, decisions based upon performance, effectiveness, and qualifications as applicable to each specific position. Effectiveness, as determined pursuant to R.S. 17:3881 through 3905, shall be used as the primary criterion for making personnel decisions; however, in no case shall seniority or tenure be used as the primary criterion when making decisions regarding the hiring, assignment, or dismissal of teachers and other school employees.

Louisiana Revised Statutes 17:81(U) remained unchanged by Act 1, and provides as follows: “Notwithstanding the provisions of this Section, a city, parish, and other local public school -board shall, retain all authority given by law to such boards to prescribe the duties and fix the salaries of and hold tenure hearings for all employees of such boards, as applicable,” Further, La.R.S. 17:418(A)(1), which was enacted as part of Act 1, provides:

The governing authority of each local public elementary and secondary.school, the state special schools, and the' schools and programs administered through the special school district shall establish salary schedules by which to determine the salaries to be paid to teachers-and all other school' employees. The salaries as provided therein shall be considered as full compensation for all. work required and performed within each employee’s prescribed scope of duties and responsibilities.

In our original opinion, we outlined the proper procedures relative to the hiring and firing of school superintendents in Louisiana. We further held that the proper judicial review applicable to matters involving superintendents was the same as that applied under the Teacher Tenure Law as set forth in Wise v. Bossier 6Parish School Board, 02-1525 (La. 6/27/03), 851 So.2d 1090. Although a deferential standard of appellate review is applied to the factual conclusions of an administrative tribunal such as the Board, the same is not true for issues of law. “On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record.” State, Through La. Riverboat Gaming Comm’n v. La. State Police Riverboat Gaming Enforcement Div., 95-2355, p. 5 (La.App. 1 Cir. 8/21/96), 694 So.2d 316, 319. “Appellate review of a question of law involves a determination of whether the lower court’s interpretive decision is legally correct.” Johnson v. La. Tax Comm’n, 01-964 (La. App. 4 Cir. 1/16/02), 807 So.2d 329, 331, writ denied, 02-445 (La. 3/8/02), 811 So.2d 887. Thus:

On review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. See La.Const. art. 5, § 5(C); Donnell v. Gray, 215 La. 497, 41 So.2d 66, 67 (1949).

Eicher v. La. State Police, Riverboat Gaming Enforcement Div., 97-121, n.5 (La. App. 1 Cir. 2/20/98), 710 So.2d 799, 807, writ denied, 98-780 (La. 5/8/98), 719 So.2d 51.

Analysis of Charge Upheld by the District Court

It is clear from the record that this matter centers around the effect of Act 1 and disagreement between Dr. Cooper and the Board over the impact it had on the distribution of powers between a school board and the superintendent of a school district. At the time this dispute began, the Board had voted to hire Dr. Cooper by the narrowest of margins. After the enactment of Act 1, there was much discussion by the Board regarding Act l’s effect because its constitutionality was being litigated in the courts. However, during the course of the events leading up to the Board’s termination of Dr. Cooper, the supreme court upheld the constitutionality 7of Act 1 in Louisiana Federation of Teachers v. State, 14-691 (La. 10/15/14), 171 So.3d 835. The supreme court specifically rejected the plaintiffs’ one-object constitutional challenge to La.R.S. 17:81(A)(2) and (3), pertaining to the delegation of administrative power to local superintendents. Therein, the court stated the following:

In addition, plaintiffs argue that La. R.S. 17:81(A)(2) and (3) which delegate the administrative authority to local superintendents, “constitutes a significant transfer of power and authority,” and is therefore either a separate object or not necessary to carry out the object of improving elementary and secondary education through tenure reform and performance standards based on effectiveness. Plaintiffs argue these provisions are not necessary because the school boards could have retained their administrative authority and utilized effectiveness in making employment decisions. Again, the legislature felt that superintendents were in a better position to make employment decisions based on effectiveness; thus, the transfer of this administrative authority was necessary to accomplish this.

Id. at 849 (emphasis added).

The charge found to have merit by the district court, which we originally affirmed, asserted “Unworthiness, Inefficiency, Breach of Contract) Failure to Comply with Board Policy and State Law” on Cooper’s part, and listed the specific reasons for those assertions as follows:

Dr. Cooper violated [School] Board policy and state law in connection with the payment of select principals in an amount in excess of the Salary Schedule established by the School Board. In 2006 the [School] Board adopted an indexing plan for the salaries of principals and assistant principals. This plan was subsequently incorporated into the various salary schedules approved and adopted by the [School] Board, including the salary schedule for the year 2013-14 (the “Salary Schedule”). Under this indexing plan (as incorporated in the Salary Schedule and the approved budget), elementary school principals are to be paid a salary equivalent to 203 days of work at the “daily rate of pay;” middle school principals are to be paid a salary equivalent to 213 days of work at the “daily rate of pay;” and high school principals are to be paid a salary equivalent to 224 days of work at the “daily rate of pay.” However, Dr. Cooper, without prior School Board approval, agreed to pay five principals at the rate of 244 days of work. At its November 20, 2013 meeting the [School] Board refuse[d] to approve the administrative contracts of any employee being paid for 244 days of work, and any others in 18excess of policy and pay grade limits. To date,.the additional payments received by these principals has not been authorized, approved, or ratified by the School Board. ■

Dr. Cooper’s termination was the direct result of his. actions in hiring five principals for underperforming schools with full School, Board approval for the 2012-2013 and 2013-2014 school years. However, the Board did not authorize Dr. Cooper’s decision to pay these five principals by the .year, by increasing their authorized days of annual employment from either 203 or 224 days to 244 days as per the salary schedule set by the Board. The 2011-2012 salary schedule of the Board, which actually was enacted prior to the effective date of Act 1, provided as follows:

COMPUTING SCHOOL-BASED ADMINISTRATIVE SALARIES USING INDEXING
1. Using the index chart, locate the pay-grade classification in which you fall. For example, a high school principal would be pay-grade 10 with an index of 1.488.
2. Add your administrative experience factor to your index. (.005 for each year as an administrator) .
3. Multiply your combined index (index + administrative experience factor) by your annual salary as shown on the Teacher’s Salary Schedule. This is your 12 month salary.
• If you are a 10 month employee, multiply by .8333 (10/12—203 Days)
• If you are a 10.5 month employee, multiply by .875 (10.5/12—213 Days)
• If you are an 11 month employee, multiply by .91667 (11/12—224 Days)

Example

Middle School Assistant Principal: Master’s 4-30; 17 years total experience; 6 years expedience as an administrator. This is a 10 19month employee. The pay grade classification is 6. The index is 1.384 and the Admin. Index is .03. This person has 23 years experience with a Masters +30. The salary for that teacher is $48,259.

$48,259 X 1.414 (1.384 + .03) =$68,238 (the 12 months salary)

$68,238 X .8333 = $56,863 = 10 month administrator’s salary

The Board’s salary schedule contemplated paying principals a daily rate based on the number of days worked in a given school year' and with a maximum number of days approved for each principal level, The salary schedule set the maximum days for high school principals at 224 days per year based on an eleven-month schedule; the maximum days for middle school principals at 213 days per year based on a 10.5-month schedule; and the maximum days for elementary school principals at 203 days per year based on a ten-month schedule. -

Dr. Cooper, in hiring these five principals, added twenty days to the maximum days for high school principals and forty days to the maximum for elementary school principals, based on a twelve-month or yearly schedule, without first obtaining Board approval. After the Board became aware that the salary schedule, as to the length of employment, had not been followed, it refused to retroactively approve the yearly contracts of these principals. As a result, the Board levied charges against Dr. Cooper and, ultimately, voted to terminate his employment.

In our original opinion, we held that the salary schedule prohibited Dr. Cooper from paying these principals’ salaries based on 244 days; thus, we affirmed the district court’s judgment, which upheld the Board’s.termination of his | ^employment. In doing so, we now find that we incorrectly applied the law enacted by Act 1, as did the lower court and the Board. As set forth above, it is for this court to review matters of interpretation of law, and we do so as a de novo review. This entire matter turns on the legal interpretation and application of the provisions of Act 1, rather than on factual findings, which we acknowledge the administrative body has wide discretion in determining.

We now hold that by • its plain, clear, and unambiguous language, La.R.S, 81(A)(2) and (3) provide express legal authority for a superintendent to hire school personnel by the year. While both La.R.S. 17:81(U) and 17:418(A)(1) provide that school boards continue to have the authority to set salary schedules, such schedules cannot interfere with the express authorization of a superintendent to hire a teacher, or in this case á principal, by “the year.”

In this instance, Dr. Cooper exercised the authority granted to him by La. R.S. 17:81(A)(2) and (3) by hiring these five principals by “the year.” In doing so, he utilized the 2011-2012 salary schedule provided by the Board to calculate .their daily rate of pay based on 244 days. The salary schedule sets forth that the salaries, which are computed based on a 244 day year, are determined by multiplying the annual salary by either .8333 for 203 days or .91667 for 224 days, depending on the number of days to be worked. Although the 2013-2014 salary schedule indicates that a high school principal works an eleven-month schedule |1Tand an elementary school principal works a ten-month schedule, the 2011-2012 salary schedule was not that specific, as shown by the Index Chart above. Moreover, the minutes of the Board’s December 4, 2013 meeting establish that the Board voted to postpone ratification of its 2013-2014 salary schedule “until staff corrects issues that exist.”

We further note that neither the 2011-2012 nor the 2013-2014 salary schedule contains language mandating that principals cannot be paid more nor less than the 203 or 224 days prescribed for elementary and high school principals. There is no “shall” language in the salary schedule. In fact, the Board had previously demonstrated this itself by its payment of teachers on a yearly or 244-day basis in á certain charter school in Lafayette Parish. Teachers at this charter school, which “catered to extremely at-risk students,” were paid based on a 244-day or yearly basis using the salary schedule. Aillet v. Lafayette Parish Sch. Bd., 14-585, p. 1 (La.App. 3 Cir. 12/10/14), 154 So.3d 768, 770, writ denied, 15-409 (La. 5/1/15), 169 So.3d 376. In Aillet, a separate panel of this court held in favor of teachers from the charter school, who were reassigned t.o regular schools in the school system and whose salaries were reduced based on a reduction in days worked from 244 to, 182 days. In that matter, we held that the school board had to maintain the teachers’ 244 day per year schedule based on the provisions of La.R.S. 17:418(C)(1).

h ¡¿Failing schools require more attention and more work days for their principals or school personnel, as recognized by the Board in Aillet. Here, Dr. Cooper applied the same salary schedule provisions and the same logic in his hiring of the five principals, yet the Board refused to recognize his authority to do the same when their roles were reversed by Act 1. Thus, we find that the Board was incorrect in their interpretation of Act 1, as was the district court in its review of that decision.

Even if the salary schedule did attempt to limit the authority of the superintendent to hire principals on a twelve-month or annual basis, the schedule itself would be in direct contravention of the provisions of Act 1, which gives the superintendent the authority to hire employees by the year, as opposed to by the month, such as ten or eleven months. While the prior version of La.R.S. 17:81 gave school boards that authority, it no longer exists under the current version of La.R.S. 17:81, and the Board, in this case, cannot interfere with the authority of the superintendent to hire teachers or principals by the year. Indeed, the legislature made it clear that after July 1,2012, local school boards are to establish board policies, while superintendents are to administer the operation of the schools and make all school personnel decisions, as set forth in La.R.S. 17:81(A).

In this instance, we find that Dr. Cooper acted within the authority granted to him by La.R.S. 17:81(A) in hiring the five principals and determining them salaries based on the Board’s salary schedule as 244-day or twelve-month employees. Thus, we find that the Board, by misapplying the law, acted arbitrarily and capriciously in terminating Dr. Cooper’s employment based on Charge Number Four. Accordingly, we reverse the judgment of the lower court and render judgment in Dr. Cooper’s favor on this charge.

The Charges Rejected by the District Court

liijln its answer to Dr. Cooper’s appeal, the Board asks this court to review the district court’s rejection of the remaining three charges it found viable following its hearing. We do so now, as upholding the correctness of any of the other grounds would be sufficient to uphold the Board’s termination of Dr. Cooper. Wise, 851 So.2d 1090.

Charge Number One

Charge Number One stated that Dr. Cooper refused to terminate Thad Welch, a Special Assistant to the Superintendent, on February 6, 2013, after the Board voted to reconsider his appointment. Welch was originally appointed to his position by the Board on March 27, 2012, and had served in that position for nearly a year. He was hired as a supervisor over facilities, maintenance, grounds, and transportation and was responsible for overseeing maintenance issues for all schools in the School System.

The district court ruled on the record in favor of Dr. Cooper, finding that Act 1 applied and that Dr. Cooper “was following the law[,]” when he refused to accede to the Board’s instructions to fire Welch. Further, the district court, when asked by the Board’s counsel if any “deference” was being given “to the finding of the school board on that charge,” replied, “Yes, there is. That’s my ruling. It was an error. They did not follow the law on that.” There was much discussion between the district court and counsel for both parties regarding Welch’s employment status pursuant to the terms of La.R.S. 17:81. The district court noted that the parties stipulated to the fact that Welch was a system-level employee of the Board. Based on this stipulation, the Board argued that Welch’s employment was governed by La.R.S. 17:84, which provided:

The parish school boards may appoint such assistant superintendents, supervisors, stenographers, bookkeepers as may be needed, and such attendance officers, medical directors, and other | uappointees as may be necessary for the proper and efficient conduct of the schools; they may also fix their salaries and prescribe their duties.
Any parish or school board with a population of two hundred thousand or more may appoint a deputy parish superintendent of schools for such a period, and having such qualifications as may be fixed by the school board. The school board may also fix the salary and prescribe the duties to be performed by the deputy parish superintendent. The deputy parish superintendent of schools shall not be required to be a qualified elector or a resident of the parish which he is to serve as deputy.
The deputy parish superintendent shall serve at the pleasure of the school board, and shall be removable by a majority vote of the membership of the parish school board at any regular meeting or at any special meeting after due notice.

Both parties agreed that Welch was not a deputy superintendent. The Board argued that Welch was either an assistant superintendent or an appointee as contemplated by the language of La.R.S. 17:84, while Dr. Cooper argued that he qualified as a school personnel pursuant to La.R.S. 17:81(A)(3), as amended and reenacted by Act 1, which provided:

Each local public school board shall delegate authority for the hiring and placement of all school personnel, including those for which state certification is required to the local school superintendent. It shall be the responsibility of the superintendent to ensure that all persons have proper certification, as applicable, and are qualified for the position.

Although Board policy made a distinction between school employees and administrative employees in its salary schedule, the district court asked counsel for the Board to define the term “school personnel” as used in La.R.S. 17:81(A)(3). Although counsel initially claimed that there were “multiple areas of law where school personnel are defined,” he later admitted that he was “not familiar with any definition of school personnel.” Counsel further stated:

The bottom line is the categorization of employees, system level, central office, supervisory, those positions; are up1 to the board to hire and terminate. Those school level employees, teachers at a school, they are designated, they have that authority now rests [sic] with the superintendent, but even below that, the superintendent has even | ^delegated that authority down even further to the principal level to pick the .teachers at their school.

In rejecting counsel’s argument and finding that La.R.S. 17:84 was not applicable to Welch’s employment, the district court responded:

Yes, so' basically what you are saying is, if the principals can’t run their schools, the superintendent gets to hire and fire teachers, but the superintendent-can’t hire and fire all the people that are on his staff. That’s what you’re telling me. The school board is going to go turn around and hiring and firing people on the superintendent’s staff—
—and the superintendent turns around and goes behind the principals and hires and fires the teachers; right? Well, I’m going to go ahead and make my ruling right .now. Thad Welch was a school personnel as according to Act 1. So, there you have it. So that Charge 1, that is not, it’s basically overruled by this Court. The breach of contract as to the firing of Thad Welch.

As reflected in our analysis.concerning the authorization given to superintendents in the hiring of school personnel under Act 1, the district court was correct in its judgment overturning the Board’s decision to terminate Dr. Cooper on the basis .of Charge Number - One. Accordingly, the judgment of the district court is affirmed with regard to this charge.

Charge Number Two

Charge Number Two stated that Dr. Cooper refused to terminate Welch after the Board removed the line item from the Board’s budget, which authorized payment of his salary. The-Board had previously approved the 2012-2013 budget containing a line item authorizing the new position held by Welch. On March 20, 2013, after Dr. Cooper failed to enforce the Board’s directive to terminate Welch’s employment, the Board voted to eliminate that line item from the approved budget. This action by the Board would have resulted in his de-facto termination.

■Despite the Board’s actions, Dr. Cooper refused to terminate Welch and continued to pay his salary through the reallocation of monies budgeted for the | ^Maintenance Department. At the hearing before the district court, counsel for the Board argued that Dr, Cooper “took money from some place else and paid the gentleman. That was inappropriate. For that reason, he was terminated as having violated Board Policy DCI and State law.”

The district court ruled in favor of Dr. Cooper on Charge Number Two and stated on the record, “And the Board erred in that decision in terminating him and finding that he had violated the contract and this policy by moving that budget item, that Dr. Cooper had violated this policy and the contract.” As we have held with regard, to Charge Number One, Cooper did not violate the law as provided in Act 1 by employing Welch or the. five principals for that matter. The Welch issue was, according to Dr. Cooper, an excuse, albeit a flimsy one, to terminate his employment based on the philosophical difference he had with the Board regarding the interpretation of Act 1. The Board’s alleged motive for terminating Welch was his lack of a high school diploma, which was a prerequisite in the job description for his position. The record showed, however, that when all of the applicants were interviewed and “scored,” Welch outscored the others despite the eight-percent advantage afforded them by- his failure of that prerequisite. Moreover, Dr. Cooper testified that he-found approximately thirty-seven instances where the Board, in the past, had hired applicants that failed to satisfy all of a position’s requirements. Accordingly, the judgment of the district court is affirmed with regard to Charge Number Two. ,

Charge Number Three

Charge Number Three, which was thoroughly discussed by the district court and counsel over the two-day hearing, involved the hiring of personal counsel by Dr. Cooper and the payment of his legal fees by the Board. Dr. Cooper hired counsel to represent him, after learning that the Board was considering entering a | ^letter of reprimand into-his personnel file in response to his decision to retain Welch in the face of the Board’s instructions otherwise. Charge Number Three stated that counsel was hired by Dr. Cooper “to advise [him] regarding a dispute with, and a possible action against, the School Board[,]” and that the legal services provided “included preparing for and attending Parish School Board meetings and consideration of á legal action challenging the School Board’s reprimand of Dr. Cooper over the Welch situation.” The bill was later paid by the Board’s financial department at Dr. Cooper’s direction, but without Board approval.

The focus of the argument on Charge Number Three was the authority granted to Dr. Cooper to hire counsel under the terms of his employment contract in Section 9, entitled “PROFESSIONAL LIABILITY,” which provided:

A. BOARD agrees that it shall defend, hold harmless and indemnify SUPERINTENDENT from any and all demands, claims, suits, actions and legal proceedings brought against SUPERINTENDENT in his individual capacity, or in his official capacity as agent and, employee of the BOARD, provided the incident arose while the SUPERINTENDENT was acting within the scope of his employment and excluding criminal litigation and as such liability1 coverage is within the authority of the school, BOARD [sic] to provide under state law. In no case will individual BOARD members be considered personally liable for indemnifying - SUPERINTENDENT against such demands, claims, suits, actions and legal proceedings.
B. If, in the good faith opinion of SUPERINTENDENT, conflict exists as regards the defense to such a claim between the legal position of SUPERINTENDENT and the legal position of District, the SUPERINTENDENT may engage counsel in which event BOARD shall indemnify the SUPERINTENDENT for the costs of legal defense as permitted by state law.
C; BOARD shall not, however, be required to pay any costs of any legal proceedings in the event BOARD and SUPERINTENDENT have adverse interests in such litigátion, except as stated above.

The Board argued that Section 9 was an indemnity provision .and that it , only applied to disputes filed by third parties against Dr. Cooper and the Board, rather than disputes actually between Dr. Cooper and the Board.

hsThe district court ruled during the hearing in -favor of Dr. Cooper on Charge Number Three. On the first day of the hearing, it issued a preliminary ruling, holding that the terms of the contract, .specifically Section (B), controlled. It further stated several times, in response to argument by the Board’s counsel, that Section 9 dealt with professional liability and made no mention of either third parties or indemnification. In interpreting the contract, the district court correctly stated:

And so, if someone from the School Board and not Mr. Cooper drafted the contract, and Paragraph 9 (b) is as clear as what it is, the (c) somewhat conflicts with (b), but any ambiguity would be resolved in favor—or against the drafter, which would be in favor of Mr. Coo.per, so therefore the legal fees would have to be paid by the Board.

When asked by the Board’s counsel if it intended to “review the testimony and the opinions of the various lawyers that [were] contained in the transcript,” relative to this issue, the district court replied, “I don’t decide cases by a majority vote of what lawyers think on the issue. I look at what the standard of the law is, and the contract is very clear. I madé my statements about contract law, so that’s my ruling.” The district court concluded, “Alright so the Board was incorrect in their interpretation of that law.”

Counsel for the Board then alerted the district court to the fact that there was no evidence in the record as to who drafted the contract. As this was not addressed by the Board, Dr. Cooper was allowed to testify bn this issue. When asked by the district court if any changes had' been made to parts (A), (B), and (C) of Section 9, he responded, “No sir.” The district court further asked, “That was drafted by the School Board, presented to you, and you signed it; as per that section of the contract, you made no changes or recommendations?” To which Dr. Cooper | ^responded, “No changes.” The district court then stated, “So, he was not the drafter, and so my ruling is the same.”

Counsel for the Board requested and was granted the opportunity to rebut Dr. Cooper’s testimony, but failed to do so. Again, the district court held that the Board improperly terminated Dr. Cooper based on his action in submitting the bill for his legal services to the Board. Based on the terms of the-contract and the evidence, the district court ruled that the contract was drafted by the Board and, thus, was to be construed against the Board.

Questions of contractual interpretation are questions of law, which are subject to a de novo' standard of review. Mitchell v. Patterson Ins. Co., 00-612 (La.App. 3 Cir. 12/6/00), 774 So.2d 366. Contracts have the force of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. La.Civ.Code arts. 1983 & 2045. If the words of the contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. La.Civ.Code art. 2046, “Each provision in a contract must be interpreted in light of the’other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art. 2050. Whether or not a contract is ambiguous is a question of law. La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La. 1/14/94), 630 So.2d 759.

Whitbeck v. Champagne, 14-245, pp. 10-11 (La.App. 3 Cir. 10/1/14), 149 So.3d 372, 380.

We find that the district court correctly interpreted the provisions of the contract and applied the proper legal standard; accordingly, the district court’s judgment regarding Charge Number Three is affirmed.

Based on our reversal of the district court’s judgment relative to Charge Number Four and our affirmation of its judgment on the remaining charges, we remand the matter to the district court for a determination of the damages owed to Dr. Cooper based on the Board’s breach of his employment contract, which specified that his employment was to terminate on December 31, 2015.

DISPOSITION

|2nFor the foregoing reasons, we reverse the judgment of the district court affirming the Lafayette Parish School Board’s decision to terminate Dr. Pat Cooper, as the Lafayette Parish School District Superintendent of Schools, based on Charge Number Four and render judgment in favor of Dr. Pat Cooper on that charge; we further affirm the district court’s judgment reversing the Lafayette Parish School Board’s decision to terminate Dr. Cooper based on Charge Number One, Charge Number Two, and Charge Number Three; and we remand this matter to the district court for consideration of the damages due to Dr. Cooper as a result of the Lafayette Parish School Board’s actions. All costs of this matter are assessed to the Lafayette Parish School Board in the amount of $11,909.89, pursuant to La.R.S. 13:5112(A).

AFFIRMED IN PART; REVERSED IN PART; RENDERED; AND, REMANDED.

      . 2012 La. Acts No. 1 became effective on July 1, 2012.

      . Charge Number Five, relative to Cooper receiving a negative evaluation, failed to receive a two-thirds majority of the vote as required by Section 15(D) of Cooper’s employment contract; thus, it was not an issue before either the district court or this court.

      . This matter was originally heard by a panel consisting of Judge Peters, Judge Genovese, and Judge Conery. Subsequent to the November 23, 2016 opinion in this matter, Judge Thibodeaux was appointed to replace Judge Genovese, who, was elected- to the Louisiana Supreme Court. Cooper’s application for rehearing was granted on December 29, 2016, with Judge Peters voting to deny the application. Thereafter, Judge Peters, pursuant to La.Const. art. 5, § 23(B), retired from the bench on December 31, 2016, and Judge Ky-zar, who was elected to fill his seat, replaced Judge Peters on the panel.

      . The principals were hired for the following schools: Carenero High School, J.W. Faulk Elementary School, Ridge Elementary School, Carenero Heights Elementary School, and Alice Boucher Elementary School.

      .

      . La.R.S. 17:418(C)(1) provides:
      The amount of the annual salary paid to a teacher or other school employee in any school year shall not be reduced below the amount of such salary paid during the previous school year, nor shall the amount of the annual salary paid to such school personnel be reduced at any time during an academic year.


author: PER CURIAM.

text:
    In re AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.704 AND 3.986.
    No. SC09-1186.
    Supreme Court of Florida.
    Sept. 10, 2009.
    Fleur J. Lobree, Chair, Florida Rules of Criminal Procedure Committee, Office of the State Attorney, Eleventh Judicial Circuit, Miami, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Criminal Procedure Rules Committee (Committee) filed an out-of-cycle report proposing amendments to Florida Rules of Criminal Procedure 3.704, The Criminal Punishment Code; and 3.986, Forms Related to Judgment and Sentence, to conform the rules to 2009 legislation. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).

As discussed below, we adopt the Committee’s proposed amendments to rules 3.704 and 3.986, which are based upon legislation that went into effect on July 1, 2009.

The Committee proposes amending rule 3.704 to add two additional provisions under subdivision (d), General Rules and Definitions, derived from chapter 2009-63, section 1, Laws of Florida. There, the Legislature amended section 775.082 to add subsection (10), affecting sentence computation:

(10) If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third-degree felony but not a forcible felony as defined in s. 776.08, and excluding any third-degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

The adoption of new subdivision (d)(29) in rule 3.704 gives effect to that change. Under chapter 2009-63, section 2, Laws of Florida, the Legislature created a prison diversion program established under section 921.00241, Florida Statute. Rule 3.704(d)(28) as amended gives effect to that change. Former subdivision (d)(28) is renumbered. The Criminal Punishment Code Scoresheet recently was revised to reflect these statutory changes as well. See In re Amendments to Florida Rule of Criminal Procedure 3.992(A)—Criminal Punishment Code Scoresheet, 19 So.3d 274 (Fla.2009).

The Committee further proposes amending rule 3.986 to reflect recent legislative changes that affect a number of forms under the rule. In chapter 2009-190, section 2, Laws of Florida, the Legislature amended section 943.325 pertaining to the collection of DNA samples from qualified offenders. The amendment to rule 3.986(b), Form of Judgment, reflects that change, in particular changing reference to specific offenses to the general “qualified offender” and changing “blood specimen” to “DNA samples.” The amendment to subdivision (c) provides for costs to be assessed to the offender. Subdivisions (d) and (e) are amended to reflect the Legislature’s amendments to section 948.014, requiring submission of DNA samples from offenders placed on probation or community control, respectively.

Accordingly, we hereby amend the Florida Rules of Criminal Procedure as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon issuance of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

Rule 3.704. THE CRIMINAL PUNISHMENT CODE

(a)-(c) [No change]

(d) General Rules and Definitions

(1) — (27) [No change]

(28) If the lowest permissible sentence under the criminal punishment code is a state prison sanction but the total sentencing points do not exceed 48 points (or 54 points if six of those points are for a violation of probation, community control, or other community supervision that does not involve a new crime), the court may sentence the defendant to probation, community control, or community supervision with mandatory participation in a prison diversion program, as provided for in s. 921.00241, Florida Statutes, if the defendant meets the requirements for that program as set forth in section 921.00241.

(29) If the total sentence points equal 22 or less, the court must sentence the offender to a nonstate prison sanction unless it makes written findings that a nonstate prison sanction could present a danger to the public.

(2§)(30) Sentences imposed after revocation of probation or community control must be imposed according to the sentencing law applicable at the time of the commission of the original offense.

Committee Note

[No change]

Rule. 3.986. FORMS RELATED TO JUDGMENT AND SENTENCE

(a) [No change]

(b) Form for Judgment.

_ Probation Violator

_ Community Control Violator

_ Retrial

_ Resentence

In the Circuit Court,

_Judicial Circuit, in and

for

_County, Florida

Division_

Case Number_

State of Florida

v.

Defendant

JUDGMENT

The defendant,_, being personally before this court represented by _, the attorney of record, and the state represented by _, and having

___ been tried and found guilty by jury/by court of the following crime(s)
_ entered a plea of guilty to the following crime(s)
_ entered a plea of nolo contendere to the following crime(s)
_ and no cause being shown why the defendant should not be adjudicated guilty, IT IS ORDERED THAT the defendant is hereby ADJUDICATED GUILTY of the above crime(s).
_ and having been-eonvicted or-found guilty of, or having entered a-plea-of nolo contendere or-gailty, regardless of adjudication, to attempts - or offenses relating to-sexual battery (eh. 794), lewd and lascivious conduch-(ch. 800), or-murder (s.782.04), aggravated battery-(s.784.045),-carjacking (s.812.183-) — or home- invasion robbery (s.812.1-85), or any other offense specified in section 943.325being a qualified offender pursuant to s. 943.325, the defendant shall be required to submit blood specimensDNA samples as required by law.
— and good cause being shown; IT IS ORDERED THAT ADJUDICATION OF GUILT BE WITHHELD.

DONE AND ORDERED in open court in _ County, Florida, on .(date).

Judge

State of Florida

v.

Defendant

Case Number_

FINGERPRINTS OF DEFENDANT

K. Thumb R. Index R. Middle R. Ring R. Little L. Thumb L. Index L. Middle L. Ring L. Little Fingerprints taken by: _ (Name) (Title)

I HEREBY CERTIFY that the above and foregoing fingerprints on this judgment are the fingerprints of the defendant, _, and that they were placed thereon by the defendant in my presence in open court this date.

Judge

(c) Form for Charges, Costs, and Fees.

In the Circuit Court,

_Judicial Circuit, in and for

_County, Florida

Division_

Case Number_

State of Florida

v.

Defendant

The defendant is hereby ordered to pay the following sums if checked:

CHARGES/COSTS/FEES

_ $50.00 pursuant to section 960.20, Florida Statutes (Crimes Compensation Trust Fund).
_ $3.00 as a court cost pursuant to section 943.25(3), Florida Statutes (Criminal Justice Trust Fund).
_ $2.00 as a court cost pursuant to section 943.25(13), Florida Statutes (Criminal Justice Education by Municipalities and Counties).
_ A ñne in the sum of $__ pursuant to section 775.0835, Florida Statutes. (This provision refers to the optional fine for the Crimes Compensation Trust Fund and is not applicable unless checked and completed. Fines imposed as part of a sentence to section 775.083, Florida Statutes, are to be recorded on the sentence page(s).)
_ $20.00 pursuant to section 939.015, Florida Statutes (Handicapped and Elderly Security Assistance Trust Fund).
_ A 10% surcharge in the sum of $— pursuant to section 775.0836, Florida Statutes (Handicapped and Elderly Security Assistance Trust Fund).
_ A sum of $_ pursuant to section 27.3455, Florida Statutes (Local Government Criminal Justice Trust Fund).
._ A sum of $_ pursuant to section 939.01, Florida Statutes (Prosecution/Investigative Costs).
__ A sum of $_ pursuant to section 27.56, Florida Statutes (Public Defender Fees).
_ Restitution in accordance with attached order.
_ $201 pursuant to section 938.08, Florida Statutes (Funding Programs in Domestic Violence).
_ A sum of $_for the cost of collecting the DNA sample required by s. 943.325, Florida Statutes.
_ Other

DONE AND ORDERED in open court in _ County, Florida, on .... (date).

Judge

(d) [No change]

(e) Form for Order of Probation

In the_Court

of_County, Florida

Case Number_

State of Florida

v.

Defendant

ORDER OF PROBATION

This cause coming on this day to be heard before me, and you, the defendant, _, being now present before me, and you having

(check one)
_ entered a plea of guilty to
_ entered a plea of nolo contendere to
_ been found guilty by jury verdict of
_ been found guilty by the court trying the case without a jury of the offense(s) of_

SECTION 1: Judgment Of Guilt

_ The Court hereby adjudges you to be guilty of the above offense(s).

Now, therefore, it is ordered and adjudged that the imposition of sentence is hereby withheld and that you be placed on probation for a period of_under the supervision of the Department of Corrections, subject to Florida law.

SECTION 2: Order Withholding Adjudication

_ Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on probation for a period of _ under the supervision of the Department of Corrections, subject to Florida law.

SECTION 3: Probation During Portion Of Sentence

It is hereby ordered and adjudged that you be

_ committed to the Department of Corrections
_ confined in the County Jail

for a term of_with credit for_jail time. After you have served_of the term you shall be placed on probation for a period of_under the supervision of the Department of Corrections, subject to Florida law.

_ confined in the County Jail

for a term of_with credit for_jail time, as a special condition of probation.

It is further ordered that you shall comply with the following conditions of probation during the probationary period.

(1) Not later than the fifth day of each month, you will make a full and truthful report to your officer on the form provided for that purpose.
(2) You will pay the State of Florida the amount of $_ per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.
(3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer.
(4) You will not possess, carry, or own any firearm. You will not possess, carry, or own any weapons without first procuring the consent of your officer.
(5) You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your probation.
(6) You will not associate with any person engaged in any criminal activity-
(7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.
(8) You will work diligently at a lawful occupation, advise your employer of your probation status, and support any dependents to the best of your ability, as directed by your officer.
(9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in your home, at your employment site, or elsewhere, and you will comply with all instructions your officer may give you.
(10)You will pay restitution, costs, and/or fees in accordance with the attached orders.
(11) You will report in person within 72 hours of your release from confinement to the probation office in _County, Florida, unless otherwise instructed by your officer. (This condition applies only if section 3 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at_
(12) You shall submit to the drawing of blood or other biological specimens as required by s. 943.325, Florida Statutes.

SPECIAL CONDITIONS

_ You must undergo a (drug/alcohol) evaluation and, if treatment is deemed necessary, you must successfully complete the treatment.

_ You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer.

_ You must undergo a mental health evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.

_ You will not associate with_dur-ing the period of probation.

_ You will not associate with other criminal gang members or associates, except as authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity.

_ You will not contact_during the period of probation.

_ You will attend and successfully complete an approved batterers intervention program.

_ Other_

(Use the space below for additional conditions as necessary.)

You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your probation, or may extend the period of probation as authorized by law, or may discharge you from further supervision. If you violate any of the conditions of your probation, you may be arrested and the court may revoke your probation, adjudicate you guilty if adjudication of guilt was withheld, and impose any sentence that it might have imposed before placing you on probation or require you to serve the balance of the sentence.

It is further ordered that when you have been instructed as to the conditions of probation, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or section 2 is checked.)

It is further ordered that the clerk of this court file this order in the clerks office and provide certified copies of same to the officer for use in compliance with the requirements of law.

DONE AND ORDERED, on .(date).

Judge

I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to abide by them.

.(date).

Probationer

Instructed by_

Original: Clerk of the Court

Certified Copies: Probationer

Florida Department of Corrections, Probation and Parole Services

(f)Form for Community Control.

In the_Court

of_County, Florida

Case Number_

State of Florida

v.

Defendant

ORDER OF COMMUNITY CONTROL

This cause coming on this day to be heard before me, and you, the defendant, _, being now present before me, and you having

(check one)
_ entered a plea of guilty to
_ entered a plea of nolo contendere to
_ been found guilty by jury verdict of
_ been found guilty by the court trying the case without a jury of the offense(s) of_:_

SECTION 1: Judgment of Guilt

_ The court hereby adjudges you to be guilty of the above offense(s).

Now, therefore, it is ordered and adjudged that you be placed on community control for a period of _ under the supervision of the Department of Corrections, subject to Florida law.

SECTION 2: Order Withholding Adjudication

_ Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on Community Control for a period of_ under the supervision of the Department of Corrections, subject to Florida law.

SECTION 3: Community Control During Portion Of Sentence

It is hereby ordered and adjudged that you be

— committed to the Department of Corrections
_ confined in the County Jail

for a term of_with credit for_jail time. After you have served_of the term, you shall be placed on community control for a period of _ under the supervision of the Department of Corrections, subject to Florida law.

___ confined in the County Jail

for a term of_with credit for_jail time, as a special condition of community control.

It is further ordered that you shall comply with the following conditions of community control during the community control period.

(1) Not later than the fifth day of each month, you will make a full and truthful report to your officer on the form provided for that purpose.
(2) You will pay the State of Florida the amount of $_per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.
(3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer.
(4) You will not possess, carry, or own any firearm. You will not possess, carry, or own other weapons without first procuring the consent of your officer.
(5) You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your community control.
(6) You will not associate with any person engaged in any criminal activity-
(7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.
(8) You will work diligently at a lawful occupation, advise your employer of your community control status, and support any dependents to the best of your ability as directed by your officer.
(9) You will promptly and truthfully answer all inquiries directed to you by the court or your officer and allow your officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.
(10) You will report to your officer at least 4 times a week, or, if unemployed full time, daily.
(11) You will perform _ hours of public service work as directed by your officer.
(12) You will remain confined to your approved residence except for one half hour before and after your approved employment, public service work, or any other special activities approved by your officer.
(13) You will pay restitution, costs, and/or fees in accordance with the attached orders.
(14) You will report in person within 72 hours of your release from confinement to the probation office in_ County, Florida, unless otherwise instructed by your officer. (This condition applies only if section 3 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at_
(15)You shall submit to the drawing of blood or other biological specimens as required by s. 943.325, Florida Statutes.

SPECIAL CONDITIONS

_ You must undergo a (drug/alcohol) evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.

_ You must undergo a mental health evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.

_ You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer.

_ You will not associate with_dur-ing the period of community control.

_ You will not associate with other criminal gang members or associates, except as authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity.

_ You will not contact_during the period of community control.

_ You will maintain an hourly accounting of all your activities on a daily log which you will submit to your officer on request.

._. You will participate in self-improvement programs as determined by the court or your officer.

_ You will submit to electronic monitoring of your whereabouts as required by the Florida Department of Corrections.

_ You will attend and successfully complete an approved batterers intervention program.

_ Other_

(Use the space below for additional conditions as necessary.)

You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your community control, or may extend the period of community control as authorized by law, or may discharge you from further supervision or return you to a program of regular probation supervision. If you violate any of the conditions and sanctions of your community control, you may be arrested, and the court may adjudicate you guilty if adjudication of guilt was withheld, revoke your community control, and impose any sentence that it might have imposed before placing you on community control.

It is further ordered that when you have reported to your officer and have been instructed as to the conditions of community control, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or section 2 is checked.)

It is further ordered that the clerk of this court file this order in the clerks office, and forthwith provide certified copies of same to the officer for use in compliance with the requirements of law.

DONE AND ORDERED, on .... (date).

Judge

I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to abide by them.

.(date).

Community controller

Instructed by_

Original: Clerk of the Court

Certified Copies: Community Con-trolee

Florida Department of Corrections, Probation and Parole Services

      . The Committee’s proposal also included an amendment to rule 3.800, Correction, Reduction, and Modification of Sentences, based upon decisional law from this Court. By order dated July 23, 2009, we severed rule 3.800 to be considered separately in In re Amendments to Florida Rule of Criminal Procedure 3.800, No. SC09-1306.

      . An original and nine paper copies of all comments must be filed with the Court on or before November 9, 2009, with a certificate of service verifying that a copy has been served on the Committee Chair, Honorable Fleur J. Lobree, 1350 NW 12th Ave., Room S-539, Miami, FL 33136-2102, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until November 30, 2009, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order in In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).