author: JOHNSON, J. MURPHY, J.,

text:
    Mindy Simon LEPINE v. Troy Joseph LEPINE
    NO. 17-CA-45
    Court of Appeal of Louisiana, Fifth Circuit.
    June 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, MINDY SIMON LEPINE, Jennifer C. deBlanc, Windsor V. Richmond
    COUNSEL FOR DEFENDANT/APPELLANT, TROY JOSEPH LEPINE Lila M, Samuel
    Panel composed of Jude G. Gravois, Marc E. Johnson, and Robert M. Murphy
   JOHNSON, J.

11 This is a domestic case in which Defendant appeals various rulings of the trial, court involving temporary restraining orders, a motion to recuse, pauper status, and a judgment addressing several domestic issues including a protective order based on a finding that Defendant was stalking Plaintiff, the suspension of co-parenting guidelines, the denial of Defendant’s request to sell the family home, and the award of attorney fees to Plaintiff and assessment of costs against Defendant. For the following reasons, we affirm.

FACTS & PROCEDURAL HISTORY

The parties were married in September 2003 and had two children, D.L. and A.L., born 2005 and 2007 respectively. On September 22, 2015, Mindy Lepine filed for divorce from Troy Lepine under La. C.C. art. 102. In her petition, she requested the parties be awarded joint custody of the minor children with her being designated as the domiciliary parent, and that she be awarded child support, interim periodic spousal support, exclusive use of the family home, ■ and other incidental requests. On October 13, 2015, Mindy filed a supplemental petition for divorce requesting that Troy undergo anger management assessment and possible counseling so he could better parent the children.

On November 19, 2015, the parties appeared before Hearing Officer Paul Fias-conaro and entered into a consent agreement wherein they agreed to joint custody of the children with Mindy as the domiciliary parent, that Troy should have unsupervised physical custody every other weekend, that they both attend parenting classes, that Troy would pay interim child support in the amount of $517.00/month, and that Mindy would have interim use and occupancy of the family home as well as the 2011 Toyota Sequoia. The parties also agreed to comply with specified co-parenting guidelines. Mindy further agreed to forego her request for interim periodic spousal’ support. This consent agreement was ^subsequently signed by Domestic Commissioner Ruben Bailey and made a consent judgment of the court,

A little over one month later, on December 29, 2015, Mindy filed a Petition for Temporary Restraining Order, Preliminary and Permanent Injunction pursuant to La. C.C.P. art. 3601, et seq., based on an incident that occurred on December 26, 2015, when Troy allegedly came to her home uninvited and tried to enter through the garage door after calling and texting her in a derogatory manner beginning at 1:00 a.m. She stated that she called the police as a result of the incident-and attached a copy of the Jefferson Parish Sheriffs Office’s item/complaint number. Mindy further alleged that Troy previously made harassing phone calls to her on December 24th. Commissioner Bailey denied Mindy’s request for an ex parte temporary restraining order (TRO) and set the matter for a January 19,2016 hearing.

The January 19, 2016 hearing was subsequently continued to February 22, 2016 at Mindy’s counsel’s request. On that same date, Mindy filed a second request for an injunction. Commissioner Bailey denied an ex parte TRO and set the matter for February 22nd.

The parties appeared before Commissioner Bailey on February 22, 2016. After a hearing, Commissioner Bailey granted Mindy’s request for an injunction against Troy, specifically ordering him not to ha- ■ rass Mindy or the children. The injunction was effective until February 22, 2017.

• Thereafter, on April 29, 2016, Mindy filed a Petition for Protection from Abuse pursuant to La. R.S. 46:2131, et seq., alleging Troy was stalking her; She sought an ex parte TRO to prohibit Troy from harassing and stalking her.’ She also requested authority to move all of the property and equipment of the community business from the family home to a storage unit. On the same date, Mindy filed a [¡¡Rule to Show Cause why Troy should not be held in contempt of court for violating the February 22, 2016 injunction. Commissioner Bailey denied an ex parte TRO and set both matters for a hearing on May 19, 2016.

Subsequently, on May 9, 2016, Mindy filed an objection to Commissioner Bailey’s denial, of her request for a TRO and requested consideration of the issue by the district court judge. On that same date, Judge John Molaison signed an ex parte order granting a TRO against Troy prohibiting him from contacting Mindy through phone, text, or email, and from going near her or her home, except in regards to the children’s events and only with Mindy’s written permission. The order also required any communication regarding the children be directed to Mindy through Our Family Wizard. Finally, the order granted Mindy’s request to move the business equipment to a storage facility.

The next day, on May 10, 2016, counsel for Troy enrolled and filed an answer to the petition for divorce and reconventional demand for incidental matters. Judge Mo-laison recused himself from the case on May 11, 2016 because he was related to Troy’s newly enrolled counsel, and the case was re-allotted to Judge Danyelle Taylor. On May 12, 2016, Mindy sought another TRO on the basis of domestic abuse, which Judge Taylor granted through May 19, 2016, the scheduled date of a hearing before Commissioner Bailey regarding Mindy’s petition for protection from abuse and contempt rule. When the parties appeared before Commissioner Bailey on May 19th, the parties advised him that the issues were going to be heard by Judge Taylor on May 24, 2016. On that same date, Mindy filed a request for a TRO, essentially seeking to extend the earlier TRO through the May 24th hearing date, which was granted by Commissioner Bailey.

The parties appeared before Judge Taylor on May 24, 2016. At that time, all pending matters, including the petition for protection from abuse and rule for contempt, were continued by consent of the parties until June 24, 2016. |4Additionally, Judge Taylor extended the TRO against Troy through the next hearing date of June 24th.

On June 24, 2016, Judge Taylor held a hearing on Mindy’s petition for abuse, rule for contempt, and several other issues, including Troy’s petition to partition co-owned property and Mindy’s motion for costs. The matter did not fully conclude and the hearing was held open and continued to July 26, 2016, with the temporary injunction remaining in effect until then,

In the interim, on July 14, 2016, Mindy filed a second rule to show cause why Troy should not be held in contempt of court for violating the TRO that was in effect from June 24-July 26, 2016. On the same day, Mindy filed a supplemental and amending petition for protection from abuse alleging that Troy’s abusive behavior had escalated. Mindy requested that all visitation and phone calls between Troy and the children be suspended until the July 26th hearing. Judge Glen Ansardi, who was the duty judge, granted a TRO on July 15th, ordering Troy not to contact Mindy except regarding the children and community property and only through Our Family Wizard; however, the TRO did not address visitation or the nightly phone calls. Three days later, on July 18, 2016, Mindy filed another request for a TRO, which Judge Taylor granted specifically prohibiting Troy from any contact with Mindy and the children and suspending all visitation and phone calls between Troy and the children until the July 26th hearing.

On July 26, 2016, prior to the scheduled hearing, Troy filed a motion to recuse Judge Taylor on the basis of alleged impropriety in Judge Taylor’s TRO dated July 18, 2016. Specifically, Troy challenged Judge Taylor’s impartiality in suspending Troy’s visitation and phone calls with his children when the duty judge, Judge An-sardi, had not deemed it necessary three days earlier when he granted Mindy’s request for a TRO. Judge Taylor denied the motion on the basis it failed to state a ground for recusal or allege any facts supporting a ground for ^recusal, and that it was untimely. Thereafter, Judge Taylor proceeded with the scheduled hearing. Again, the matter did not conclude and the hearing was held open and continued to July 29, 2016. Judge Taylor ordered that the temporary injunction was to remain in effect until the new hearing date.

On July 29,2016, the hearing on Mindy’s petition for protection from abuse and other matters resumed. At the conclusion of the hearing, the trial court found that Troy was guilty of domestic abuse by stalking and granted a protective order for 12 months, suspended the co-parenting guidelines, ordered Troy to undergo anger management classes, a psychiatric evaluation and counseling, and found Troy in contempt of court for violation of the injunction against harassment. The trial court ordered Troy to pay $1,000 in attorney fees plus court costs in connection with the contempt of court finding related to harassment and $4,000 in attorney fees plus court costs in connection with. the protective order. It further denied Troy’s request to list the family home for sale. The trial court signed a written judgment to this effect on September 23, 2016. Troy timely filed a motion for devolutive appeal.

ISSUES

Troy raises numerous issues on appeal. He first challenges the ex parte TRO issued by Judge Molaison on May 9, 2016. Next, he argues Judge Taylor erred in the following regards: (1) “rubber stamping” Judge Molaison’s May 9, 2016 ex parte TRO and expanding it; (2) granting an ex parte TRO on July 18, 2016 when the duty judge had denied relief one business day earlier; (3) granting pauper status to Mindy; and (4) denying his motion to recuse. Finally, Troy challenges several parts of the September 23, 2016 judgment; specifically, (1) finding his actions constituted stalking for purposes of a protective order under the ^domestic abuse statutes; (2) suspension of the co-parenting guidelines; (3) the denial of his request to sell the family home; (4) awarding attorney fees to Mindy in the amount of $6,000; and (5) assessing all court costs against him.

DISCUSSION

Temporary Restraining Orders

On appeal, Troy challenges several TROs that were issued throughout this case. First, he argues Judge Molaison abused his discretion in granting the May 9, 2016 TRO because it was untimely and unsubstantiated, thereby violating his due process rights. Troy contends Judge Mo-laison did not have jurisdiction to issue the TRO because Mindy failed to timely object to Commissioner Bailey’s denial of the TRO. Specifically, Troy asserts that Mindy’s objection was filed ten days after Commissioner Bailey denied the TRO in violation of the three-day time period under La. R.S. 13:717(F)(4)(b). He further asserts Judge Molaison should have had a hearing to provide him the opportunity to appear and present his side of the story, especially in light of the fact Mindy’s request for a TRO was not substantiated with the proper affidavit.

Second, Troy challenges a TRO issued by Judge Taylor, on the basis she simply “rubber stamped” the TRO issued by Judge Molaison and expanded it by awarding sole custody of the' children to Mindy in violation of his constitutional rights. Although Troy does not specifically identify this TRO by date, it appears he is challenging the TRO signed by Judge Taylor on May 12, 2016.

Finally, Troy asserts Judge Taylor abused her discretion in granting a TRO on July 18, 2016, after another judge, denied the same-relief only one business day earlier.

We do not find any of these issues are properly before this Court on appeal. Under La. C.C.P. art. 3612, “[tjhere shall be no appeal from an order relating to a temporary restraining order.” We find this prohibition applies to all TROs, ^regardless of whether the TRO was granted under La. C.C.P. art. 3603 or the Domestic Abuse. Statute, La. R.S. 46:2135. In the event - a party is aggrieved by the granting of a TRO, that party may seek review by way of an- application for supervisory writs to the Court of Appeal, which we note that Troy did not do as to any of the TROs issued in this case. See Harper v. Harper, 00-1425 (La. App. 5 Cir. 1/30/01); 777 So.2d 1275, 1278, writ denied, 01-768 (La. 5/11/01); 792 So.2d 736. Based on the posture of this case,'all three of the challenged TROs have lapsed and have been rendered moot by the issuance of the September 23, 2016 judgment, which issued a protective order and modified visitation. See id.

Granting of Pauper Status

Troy - next argues that the trial court abused its discretion in granting pauper status to Mindy. He contends that Mindy’s assets and income exceeded the eligibility-of pauper status at the time it was granted.

The law provides a procedure for one who cannot afford to pay court costs to prosecute or defend litigation without having to pay court costs in advance or as they accrue. See La. C.C.P. art. 5181, et seq. Pauper status, or the ability to litigate without prior payment of costs is a privilege, not a right, and one seeking to take advantage 'of this privilege must clearly be entitled to it, must apply for permission to do so, and must submit specific documentation. Thibodeaux v. Rental Ins. Servs., 13-1947, *34 (La. App. 1 Cir. 4/24/15), 2015 WL 1882456, 2015 La. App. Unpub. LEXIS 170, writ denied, 15-1213 (La. 9/25/15); 178 So.3d 567. The grant of this privilege to litigate in forma pauperis is within the trial court’s discretion. Gebre v. City of New Orleans, 14-904 (La. App. 4 Cir. 10/7/15); 177 So.3d 723, 732. An adverse party may traverse a litigant’s status as a pauper by a rule to show cause, and the trial court shall rescind its order of pauper status if it finds tlae litigant is not entitled to exercise the privilege. La. C.C.P. art. 5184.

IsThe trial court granted Mindy pauper status on June 29, 2016. There is nothing in the record that shows Troy availed himself of the opportunity under La. C.C.P. art. 5184 to traverse Mindy’s ability, to litigate as a pauper. Rather, Troy seeks to challenge Mindy’s pauper status for the first time in this appeal.

As a general rule, appellate courts will not consider issues raised for the- first time on appeal, which are not pleaded in the court below and which the trial court has not addressed. First Bank & Trust v. Treme, 13-168 (La. App. 5 Cir. 10/30/13); 129 So.3d 605, 610. Because Troy did not present this issue to the trial court for review, he is precluded from having this Court consider the merits of this issue.

Denial of Motion to Recuse

Troy asserts that Judge Taylor abused her discretion when she failed to recuse herself when valid grounds for a recusal'were set forth in his motion to recuse.

Troy filed a motion to recuse Judge Taylor on July 26, 2016, the second day of trial, on the basis that “some impropriety seem[s] to exist, even if they [sic] do not actually exist.” He relied on the fact that Judge Taylor granted a TRO suspending Troy’s visitation and nightly phone calls with his 'Children on July 18, 2016, after Judge Ansardi denied the same relief on July 15, 2016 based on identical pleadings'. He further alleged that Judge Taylor and Mindy’s counsel were two presenters at a CLE on domestic abuse. Troy asserted that he “questioned] the issue of blind justice” in light of the fact Commissioner Bailey and Judge Ansardi previously denied ex parte TROs to remove custody of the children from their father. In requesting that Judge Taylor recuse herself, Troy Instated, “The current situation may be completely innocent; however, a review of the record is disturbing. No disrespect in any fashion is directed toward Judge Taylor who has tried to be helpful to all sides.” On the . same day, Judge Taylor denied the motion, stating that the motion failed to state a ground for recusal or allege any facts supporting a ground for recusal under La. C.C.P. art. 151. Judge Taylor further found the motion to be untimely under La. C.C.P. art. 154.

Louisiana Code of Civil Procedure Article 151(A)(4) states that a judge of any court shall be. recused when he “[is] biased, prejudiced, or interested in the cause or its outcome, or biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.” A judge is presumed to be impartial. Couvillion v. Couvillion, 00-143 (La. App, 5 Cir. 9/26/00); 769 So.2d 747, 753, writ denied, 00-3185 (La. 1/12/01); 781 So.2d 562. Article 151 requires actual bias or prejudice— “substantial appearance of the possibility of bias” or the “mere appearance of impropriety” is insufficient to remove a judge from presiding in a given action. S. Casing of La., Inc. v. Houma Avionics, Inc., 00-1930 (La. App. 1 Cir. 9/28/01); 809 So.2d 1040, 1050. Additionally, the bias or prejudice must be of a substantial nature and based on more than conclusory allegations. Lozier v. Estate of Elmer, 10-754 (La. App. 5 Cir. 2/15/11); 64 So.3d 237, 243, writ denied, 11-529 (La. 4/25/11); 62 So.3d 93.

If a valid ground for recusal- is set forth in the motion to recuse, the judge shall recuse, himself or refer the motion to another judge for a hearing. La. C.C.P. art. 154. However, when the motion to recuse fails to enunciate valid grounds for recusal, the trial judge may deny the motion without referring the matter to another judge. Lozier, supra. A trial court has discretion to determine if there is a valid ground for recusal set forth in the motion. Frierson v. Frierson, 14-64, *32 (La. App. 4 Cir. 7/2/14); , 2014 WL 3045068, 2014 La. App. Unpub. LEXIS 399, writ denied, 14-1628 (La. 8/22/14); 146 So.3d 540.

Upon review, we find Troy failed to allege a valid ground for recusal in his motion to recuse. Troy only alleged that “some impropriety seem[s] to exist.” He further acknowledged that the trial court’s rulings “may be completely innocent” and that Judge Taylor “has tried to be helpful to all sides.” Thus, the motion fails to allege actual bias, prejudice or impropriety. Further, the mere allegation that Judge Taylor, who had been presiding over the case for two months and who had already heard one day of testimony regarding a request for a protective order, granted a more restrictive TRO than a duty judge is insufficient to warrant a recusal in this matter. Complaints of adverse rulings alone are insufficient to establish bias to recuse a trial judge. Fñer-son, supra. Accordingly, we find no abuse of the trial court’s discretion in denying the motion to recuse on the basis it failed to set forth a valid ground for recusal.

Domestic Abuse Stalking

Troy challenges the trial court’s finding that he committed domestic abuse by stalking on the basis of insufficient proof. He contends the trial court based its determination on unauthenticated evidence, namely screenshots of text messages between the parties. He further maintains that all of the interaction between the parties was invited by Mindy and, thus, there was no evidence he stalked her.

The Domestic Abuse Assistance Law. La. R.S. 46:2131, et seq., provides protection in the form of TROs and protective orders for persons subject to domestic abuse. Coy v. Coy, 46,655 (La. App. 2 Cir. 7/13/11); 69 So.3d 1270, 1272. Domestic abuse is not limited to physical or sexual abuse, but includes any offense against the person, physical or non-physical, as defined in the Louisiana Criminal Code, except negligent injury and defamation, committed by one family | nmember, household member, or dating partner, against another. La. R.S. 46:2132(A)(3).

Under the Domestic Abuse Assistance law, the trial court may grant a protective order directing the defendant from “abusing, harassing, or interfering with” the petitioning party. La. R.S. 46:2135(A)(1); La. R.S. 46:2136(A)(1). To obtain a protective order under this law, the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(B); Ferrand v. Ferrand, 16-7, *84 (La. App. 5 Cir. 8/31/16), 221 So.3d 909, 2016 WL 9022452 [2016 La. App. LEXIS 1600], writ denied, 16-1903 (La. 12/16/16); 211 So.3d 1164. Proof by preponderance of the evidence is when the entirety of the evidence shows that the fact sought to be proved is more probable than not. Shaw v. Young, 15-974 (La. App. 4 Cir. 8/17/16); 199 So.3d 1180, 1183.

A trial court’s decision to issue or deny a protective order under this law is reversible only upon a showing of an abuse of discretion. Ferrand, supra at *85. The trial court’s finding of fact, including its assessment of the weight of the evidence and the credibility of witnesses, may not be set aside absent manifest error. Shaw, supra. To reverse a fact-finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Rabalais v. Nash, 06-999 (La. 3/9/07); 952 So.2d 653, 657. Where the fact-finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that it would have weighed the evidence differently and reached a different' result. Id.

After a three-day contradictory hearing, the trial court granted a protective order in favor of Mindy against Troy “prohibiting domestic abuse stalking.” In its ruling, the trial court found Troy committed domestic abuse by violating an offense against the person, specifically stalking under La. R.S. 14:40.2. Because stalking | iais an offense against the person in the Louisiana Criminal Code, it constitutes domestic abuse for purposes of the Domestic Abuse Assistance Law.

Stalking is defined in La. R.S. 14:40.2(A) as “the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress.” The term “harassing” is defined as “the repeated pattern of verbal communications or nonverbal behavior without invitation which includes but is not limited to making telephone calls, transmitting electronic mail, sending messages via a third party, or sending letters or pictures.” La, R.S. 14:40.2(0(1). A “pattern of conduct” is “a series of acts over a period of time, however short, evidencing an intent to inflict a continuity of emotional distress upon the person.” La. R.S. 14:40.2(0(2).

In ruling, the trial court stated, after listening to lengthy recorded conversations between the parties, that any reasonable person would be expected to experience emotional distress based on the tone and substance of the conversations. The trial court noted that Troy’s language during the recorded conversations was “vial,” “abusive,” and “threatening.” After considering all the evidence presented, the trial court concluded Troy’s conduct constituted harassment because it was “repeated and unending” and constituted stalking because it would cause any reasonable person to suffer emotional distress.

We need not decide whether a criminal conviction for stalking could be sustained under these facts; rather, we need only decide whether Mindy satisfied her burden of proving her allegations of domestic abuse by a preponderance of the evidence. Upon careful review of the entirety of the record, we find the evidence supports the trial court’s determination that Troy’s conduct, including repeated text messages sometimes exceeding one hundred in one day, phone calls that | lssometimes exceeded twenty-five in one day, and numerous Our Family Wizard messages that were unrelated to the children, as well as the content and tone of the recordings introduced into evidence, rose to the level of harassment that would cause a reasonable person alarm or emotional distress. Although Mindy responded to some of Troy’s texts, we cannot say tjie trial court was clearly wrong in its conclusion that the repeated texts and phone calls were uninvited. The record shows that Mindy repeatedly told Troy “this has to stop.” Accordingly, we cannot say the trial court’s finding that Troy committed domestic abuse by stalking was manifestly erroneous or clearly wrong.

Suspension of Co-Parenting Guidelines

■ In this assignment of error, Troy contends that the trial court abused its discretion when it suspended the co-parenting guidelines. The only argument he makes in support of his contention is that the July 18, 2016 ex parte TRO denied him access to his children and violated his due process rights. We have already found that any issue pertaining'to the propriety of a TRO cannot be considered on appeal. Nonetheless, we will review the propriety of the suspension of the co-parenting guidelines.

The record shows that the September 23, 2016 judgment suspended the co-parenting guidelines that the parties agreed to in a consent judgment signed by Commissioner Bailey on November 19, 2015. In addition to suspending the co-parenting guidelines, the trial court ordered. Troy to participate in anger management and undergo psychiatric evaluation and treatment. It further modified Troy’s visitation, providing for supervised visitation for 60 days followed by limited unsupervised visitation, and set the matter for December 5, 2016 to review the visitation.

| úChild custody matters are reviewed under the abuse of discretion standard. The determination of the trial judge in a child custody matter is entitled to great weight and his discretion will not be disturbed on appeal absent a clear showing of abuse. McFall v. McFall, 10-1041 (La. App. 5 Cir. 9/13/11); 75 So.3d 30, 39-40.

■ Every child custody case must be viewed based on its own particular facts and relationships involved, with the paramount goal of reaching a decision that is in the best interest of the child. Wilson v. Wilson, 15-74 (La. App. 5 Cir. 4/29/15); 170 So.3d 340, 344. The Louisiana Supreme Court has explained:

The trial judge sits as a sort of fiduciary on behalf of the child, and must pursue actively that course of conduct which will be of the greatest benefit to the child. It is the child’s emotional, physical, material and social well-being and health which are the judge’s very purpose in child custody cases. He must protect the child from the harsh realities of the parents’ often bitter, vengeful, and typically highly emotional conflict. The legislature has mandated that the judge shall look only to the child’s interests. ■ ■ . . .
In furtherance of this important goal, the court has been vested with broad and independent powers. It may, for example, order that an investigation be conducted into the home lives of the parties, the psychological health of the child, or into any other factor which the judge deems to be important in his determination of the child’s best interest. In this way, the court "can fulfill its obligations to the child.

C.M.J. v. L.M.C., 14-1119 (La. 10/15/14); 156 So.3d 16, 28-29, quoting Turner v. Turner, 455 So.2d 1374, 1378 (La. 1984).

Additionally, under the Domestic Abuse Assistance Law, La. R.S. 46:2131, et seq., the trial court has wide latitude in determining the relief granted to a domestic abuse petitioner to stop the abuse of a party. Rodriguez v. Claassen, 16-610 (La. App. 4 Cir. 12/21/16); 207 So.3d 490, 499. The purpose of the Domestic Abuse Assistance Law is to provide relief to victims of domestic violence by establishing a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection. La. R.S. 46:2131.

The co-parenting guidelines help to facilitate communication between" the parents regarding the children. Since the trial court determined that Troy |1Bcommitted domestic abuse, which we.affirmed supra, it suspended the co-parenting guidelines to help stop the abuse by limiting the contact between the parents. Upon review, we find no abuse of the trial court’s discretion in this regard. Said relief is within the trial court’s authority under La. R.S. 46:2131, et seq., and consistent with the best interest of the children to be protected from the parents’ highly emotional conflict that tends to arise from their interaction.

Denial of Request to Sell Family Home

Troy contends the trial court erred in refusing to allow him to list the family home for sale as part of the partition of community property. In support of his argument, he cites La. C.C. art. 807, which provides in pertinent part, “No one may be compelled to hold a thing in indivi-sión with another unless the contrary has been provided by law or juridical act.” [Emphasis added.]

Under the Domestic Abuse Assistance Law, the trial court is authorized to protect the petitioning party against further abuse by granting the petitioner possession of the residence to the exclusion of the defendant even where the residence is jointly owned by the petitioner and the defendant. La. R.S. 46:2135(A)(3) and La. R.S. 46:2136(A)(1).

Under the previous consent judgment, Mindy had been granted interim exclusive use of the family home. In his answer and reconventional demand, Troy requested that the family home be immediately listed for sale. The request was heard during the three-day hearing on Mindy’s petition for protective order and denied. Under the Domestic Abuse Assistance Law, the trial court had authority to keep Mindy in possession of the co-owned family home in connection with the protective order. Accordingly, we find no error in the trial court’s ruling denying Troy’s request to list the family home for sale at this time. [jgAttorney’s Fees and Costs

In his last assignment of error, Troy argues the trial court erred in awarding attorney fees to Mindy in the total amount of $5,000 and assessing all court costs against him. His 'sole argument is that Mindy’s pauper status led her to file excessive material into the record “at his expense.”

The trial court awarded $4,000 in attorney fees related to the petition for protective from abuse and $1,000 in attorney fees related to the contempt proceeding for violation of the injunction against harassment. The trial court also assessed all court costs related to the petition for protection from abuse and the rule for contempt against Troy.

Contrary to Troy’s argument, Mindy’s pauper status had no bearing on the party responsible for court costs in this case. Under La. R.S. 46:2134(F), a petitioner for protection from domestic abuse

shall not be required to prepay or be cast with court costs or costs of service or subpoena for the filing of the petition or the issuance of á temporary restraining order or protective order pursuant to this Part, and the clerk of court shall immediately file and process the petition and temporary restraining order issued pursuant to this Part, regardless of the ability of the petitioner to pay court costs. [Emphasis added.]

Additionally,. La. R.S. 46:2136.1(A) provides in pertinent part:

All court costs, attorney fees, costs of enforcement and modifications proceedings, costs of appeals, evaluation fees, and expert witness fees incurred in maintaining and defending any proceeding concerning domestic abuse assistance in accordance with the provisions of this Part shall be paid by the perpetrator of the domestic violence....

La. R.S. 46:2136.1 is very clear—all attorney fees and court costs incurred in maintaining and defending a proceeding concerning domestic abuse assistance are to be paid by the perpetrator, which in this case is Troy. Thus, the assessment |17of court costs related to the petition for protection from abuse was mandated by law.

Under Louisiana law, attorney fees are allowed only where authorized by special statute or by contract. Dazet Mortgage Solutions LLC v. Faia, 12-486 (La. App. 5 Cir. 4/10/13); 116 So.3d 711, 719, writ denied, 13-1046 (La. 6/21/13); 118 So.3d 1095. La. R.S. 46:2136.1 clearly allows for attorney fees. During the three-day hearing, Mindy testified that she had incurred $8,065 in attorney fees through the time of her testimony, and a detailed invoice showing the attorney fees was admitted into evidence. Under the clear wording of La. R.S. 46:2136.1, Mindy was entitled to the entirety of her attorney fees relating to the petition for protection from abuse; however, she was only awarded $4,000.

The trial court’s award of attorney fees should not be modified absent an abuse of discretion. D.M.S. v. I.D.S., 14-364, *41 (La. App. 4 Cir. 3/4/15); 225 So.3d 1127, 2015 WL 926777 [2015 La. App. LEXIS 436], writ denied, 15-897 (La. 6/19/15); 172 So.3d 654. Considering the three-day hearing and the amount of evidence presented, we find no abuse of the trial court’s discretion regarding the $4,000 award of attorney fees relating to the petition for protection from abuse.

Additionally, as to the $1,000 attorney fees awarded in connection to the contempt of court proceeding, we find no error. Under La. R.S. 13:4611(l)(g), “[t]he court may award attorney fees to the prevailing party in a contempt of court proceeding provided for in this Section.” Based on the record before us, we find no abuse of discretion in the award of $1,000 in attorney fees related to the contempt of court proceeding.

| ^DECREE

For the foregoing reasons, we find no error in the trial court’s denial of the motion to recuse, and affirm the judgment of the trial court granting a protective order on the basis of domestic abuse, suspending the co-parenting guidelines, denying Defendant’s request to sell the family home, awarding attorney fees in the amount of $5,000 to Plaintiff, and assessing court costs against Defendant.

AFFIRMED

hcGRAVOIS, J., CONCURS FOR THE REASONS STATED BY MURPHY, J.

MURPHY, J., CONCURS WITH REASONS

MURPHY, J.,

CONCURS WITH REASONS

Uni agree with the majority to affirm the trial court’s rulings at issue and write separately for the limited purpose of including the following concurrence:

As a best practice, in instances where the trial court is presented with a question of whether a valid ground for recusal has been set forth, it is advisable that any doubt should be resolved by referring the motion to another judge for a hearing, as provided in La. C.C.P. arts. 155 and 156. Thus, the trial court can take an affirmative step to avoid even the appearance of impropriety. Knight v. Magri, 15-63 (La. App. 5 Cir. 3/18/03) (unpublished writ disposition).

      . It is noted that Troy was present at this hearing but was not represented by counsel.

      . The judgment also imposed visitation restrictions regarding Troy and his children, which are not at issue in this appeal.

      . Troy initially filed a motion for suspensive appeal, which was denied on the basis that La. R.S. 46:2136(F)(1) only provides for a devolutive appeal.

      . Of note, under La. C.C.P. art, 3603.1(C)(1), a complainant seeking protection from domestic abuse or stalking "shall not be required to prepay or be cast with court costs or costs of service of subpoena for the issuance. . .of a temporary restraining order.. .or protective order,... and the clerk of court shall immediately file and process the order issued regardless of the ability of the plaintiff to pay court costs.”

      . We note that the underlying reason Troy seeks to challenge Mindy’s pauper status seems to be related to his assignment of error pertaining to the reasonableness of the court costs assessed against him, the merits of which we address infra.

      . Despite Troy’s argument on appeal that this evidence was unauthenticated, there was no objection to the admissibility of this evidence at the hearing. In fact, at one point the trial court asked Troy’s counsel, "Is there an evidentiary issue why they shouldn’t be admitted?” to which counsel responded, "No.” Additionally, during his testimony, Troy admitted sending the messages.

      . It appears the parties have yet to partition their community property. When the community property is partitioned, any interest Troy has in the family home would necessarily be addressed at that time,

      . The exact amount of court.costs was not stated in the judgment and is not contained in the appellate record, In his appellate brief, Troy represents that these court costs totaled $4,558.21.

      , Troy’s argument that Mindy abused her pauper status by "running up” the court costs by excessive filings is speculative at best. Mindy had no way of knowing whether she would prevail in her request for a protective order. Under La. C.C.P. art. 5188, "if judgment is rendered against a party who has been permitted to litigate without payment of costs, he shall be condemned to pay the costs incurred by him.”

      . We note that Mindy did not answer the appeal challenging the amount of the attorney fees award.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    Joanetta SPEARS v. LOUISIANA BOARD OF PRACTICAL NURSE EXAMINERS
    NO. 16-CA-587
    Court of Appeal of Louisiana, Fifth Circuit.
    June 15, 2017

      COUNSEL FOR PLAINTIFF/APPELr-LANT, JOANETTA SPEARS, Ray A. Bright
    COUNSEL FOR DEFENDANT/AP-PELLEE, LOUISIANA BOARD OF PRACTICAL NURSE EXAMINERS, John W. Becknell, III
    Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst
   WINDHORST, J.

hOn December 3, 2015, plaintiff, Joanet-ta Spears, filed a petition for judicial review of a November 6, 2015 administrative agency decision rendered pursuant to La. R.S. 49:964 by defendant, Louisiana Board of Practical Nurse Examiners (the Board), revoking Mr. Spears’ practical nursing license.

FACTS AND PROCEDURAL HISTORY

On May 12, 2015, after receiving a report from Ochsner Medical Center-West Bank, the Board filed a Formal Complaint against Ms. Spears, a Licensed Practical Nurse (L.P.N.), alleging violations of La.' R.S. 37:969A, sections (4)(c), (d), (f) and (g) and La. Admin. Code 46:306T, sections (3), (4) and (8)(a), (b), (c), (g), (j), (p), (q) and (t).

| ¿The Board conducted a formal hearing on June 19, 2015, before Hearing Officer Myra L. Collins, L.P.N. Also present were Executive Director, M. Lynn Ansardi, R.N., and members of the Compliance Department, Kiana Gautreaux and Julie Pranger, R.N. Ms. Spears represented herself and the Board was represented by Jerry W. Sullivan, Esq. Ms. Spears testified at the hearing, as did Ruth Polk, R.N., Amanda Smith, R.N., B.S.N., Georgia Gaffney, R.N., Kristy Caleyo R.N., B.S.N., and Kimberly Lager of Global Safety Network, who performed drug and alcohol testing both in the field and in the office.

THE BOARD HEARING

The following facts were adduced at the Board hearing.

Ms. Spears was issued a license for practical nursing in the state of Louisiana on April 24, 2008. She was terminated from employment with Ochsner ,on January 14, 2015. Her license was summarily suspended, immediately after a positive breathalyzer test, and she was terminated from employment shortly, thereafter. Ms. Spears was notified that she was terminated not only because of the positive breathalyzer test, but also because of behaviors addressed in her performance improvement plan and excessive absenteeism.

According to the testimony of Ruth Polk, R.N., Ms. Polk had worked the night shift on December 26-27, 2014. At the change of shift, Ms. Polk was waiting while another nurse was giving a report to Ms. Spears, who was just starting her shift. Ms. Polk stated that within a minute of starting the report, Ms. Spears “nodded off, bobbing her head downward first and then her head went back'” Ms. Polk noted that Ms.' Spears had a “body odor” and that she was “diaphoretic” (sweaty) and non-responsive. Ms. Polk stated that she did not smell alcohol. As it appeared that Ms. Spears was having a seizure, a Code Blue was initiated.

Amanda Smith, R.N., testified that she was one of the house supervisors at Ochs-ner at that time. She responded to the Code Blue issued for Ms. Spears. |sWhen she arrived, Ms. Spears was diaphoretic, sitting in her chair almost “postictal.” She looked “dazed, very sweaty, didn’t look good.” Ms. Smith and an emergency room physician urged Ms. Spears to go to the ER, but Ms. Spears responded that she was fine and would drive herself home. Ms. Spears became very adamant that she not be examined, which Ms. Smith thought was outside of her general character and which put Ms. Smith on alert that something was not quite right. As a result Ms. Smith contacted Global Safety Network, to arrange for alcohol testing.

Kimberly Lager testified that she was an employee with Global, and that she performed drug and alcohol tests both in the office and in the field. On December 27, 2014, she was summoned to Ochsner, where she administered a breathalyzer test to Ms. Spears. Three' samples were taken fifteen minutes apart. The first sample revealed a result of 0.132%. Ms. Spears did not properly blow into the machine on the second test, and the result voided. The third sample, fifteen minutes after the second, yielded a result of 0.098%.

Ms. Lager further stated that the machine calibration was immediately checked after the testing, as was standard procedure anytime there was a positive reading. Finally, Ms. Lager testified that there were fifteen, minute intervals between tests because alcohol in the mouth, as in mouthwash, would dissipate after fifteen minutes.

Georgia Gaffney, R.N., testified that she was the unit supervisor of the telemetry unit and that Ms. Spears worked under her supervision. Concerning Ms. Spears’ work habits, she did not timely complete nursing notes, and she would not carry her Spectralink communication device on her person to allow communication with other personnel. Ms. Spears had issues with absenteeism, as well as complaints that personnel could not locate her on the unit when she was working. Furthermore, there were several instances where Ms. Spears failed to timely 14administer medications and failed to timely communicate with physicians concerning their patients. Ms. Gaffney related one instance in which one of the physicians informed her that she observed Ms. Spears hiding behind a curtain in an empty patient room. Ms. Gaffney further testified regarding an incident in which it was believed that Ms. Spears did not timely administer medicine, resulting in a patient’s transfer to ICU, and then failed to notify the patient’s physician of that transfer. This incident .resulted in the physician issuing an order that Ms. Spears no longer be allowed to care for that physician’s patients. Ms. Gaffney identified a Performance Evaluation prepared in April 2014, in which it was marked that Ms. Spears “achieves expectations.” Ms. Gaffney stated that this evaluation meant that Ms. Spears had met the minimum requirements of what was expected of the job.

Ms. Spears’ next evaluation was held in November 2014. Ms. Gaffney had a conversation with Ms. Spears concerning attendance, untimely completion of nursing notes, untimely notification' to doctors of problems and untimely administration of medicines, as well as Ms. Spears’ failure to carry the Spectralink ' device. Also discussed was a complaint made by the physician concerning Ms. Spear’s performance with patients and care delivery, the doctor’s questioning of Ms. Spear’s abilities which resulted in the physician requesting that Ms. Spears not be assigned to any of her patients. This request led to Ms. Spears’ subsequent conflict with co-workers when that doctor’s patients were "accidentally assigned to Ms. Spears and then reassigned to her co-workers. A performance improvement plan was drafted, with the stipulation that Ms. Spears be assigned low acuity patients only.

In her interview with Ms. Spears concerning Ms. Spears’ termination from employment, Ms. Gaffney’s notes concerning the termination conversation reflect that Ms. Spears told her that she needed alcohol to sleep at night, otherwise she would be tired at work. Ms. Spears denied making this statement to Ms. Gaffney.

1 ¿Kristy Caleyo, R.N., B.S.N., testified that she had been employed at West Jefferson Medical Center in 2010-2011, and that Ms. Spears worked under her supervision. Despite repeated attempts to rehabilitate Ms. Spears, she continued to exhibit inadequate care for her patients. Ms. Spears was terminated from employment due to untimely administration of medications, failure to document patient information, failure to follow physician orders, and poor job performance.

Ms, Spears testified on her own behalf during the hearing. She stated that on December 27, 2014, she did not feel ill when she reported for work. She was getting a report, and the next thing she knew several nurses were standing around her, telling her’ that she had a seizure. Ms. Smith told her she needed to be examined, but she refused because she was embarrassed. The night charge nurse asked her several questions, which she was able to answer, and then stated that she needed to be examined. She acquiesced to this second request.

Ms, Spears testified that she agreed to take the Breathalyzer test and was surprised when the test showed that she had ingested alcohol. She stated that, on the day prior, she had consumed one glass of wine that she started sipping at twelve o’clock with her lunch and finished at eight in the evening before she went to bed. She also stated that when she went to bed, she ingested one dose of Unisom, a sleeping aid. Ms. Spears denied telling Ms. Gaffney that she needed to have an alcoholic drink in order to sleep. Ms. Spears further stated that she felt like she was bullied by her co-workers and would call in sick for respite. She admitted that she was untruthful when telling her supervisors that she was ill and mentioned a history of Crohn’s disease to excuse her absences. Ms. Spears also addressed the incident when she was in an empty patient’s room, stating that she went to an empty room, once or twice, to collect her thoughts because she was constantly interrupted by her co-workers when she attempted to write her reports.

FINDINGS AND RULING OF THE BOARD

IflAfter consideration of the testimony and the exhibits filed, the hearing officer made findings of fact which were considered by the Board in its ruling. As stated by the Board in its decision, the hearing officer found the witnesses to be credible in their testimony, while finding Ms. Spears lacked credibility. The Board’s decision also included the findings of fact made by the hearing officer as follows:

2. It was proven that on December 27, 2014, while employed as a licensed practical nurse with Ochsner Medical Center-West Bank, the respondent became unresponsive during report. After initially refusing, the respondent submitted to an alcohol breathalyzer screen in the emergency department. The result of the breathalyzer screen was 0.98 [sic ].
3. The hearing officer found that the following allegations were proven:
• That on November 15, 2014, the respondent missed days, failed to complete nursing notes, failed to timely notify the doctor with problems and failed to give medications on time.
• That on November 18,2014, a physician questioned the respondent’s integrity -with her delivery of care. The physician requested that the respondent not be assigned to any of her patients because the physician felt the respondent was not competent to perform the duties. Specifically, a patient was transferred to ICU as a result of an increased heart rate. The physician believes if the patient would have received routine medications, the patient’s status change could have been prevented.
• That on December 19, 2014, the respondent was assigned to care for four of the physician’s patients after the request was made that she not care for any of the physician’s patients. While attempting to reassign the patients to comply with the physician’s concerns, several co-workers complained that the respondent was not very pleasant. This resulted in a performance improvement plan. It was noted that the respondent was previously coached on medications (late with meds-monitor), documentation (open charts, I/O review), MD notification of patient status changes and critical labs, communication, visibility on unit and limited choices of patients (need low acuity, honesty with care). It was noted that the respondent would not be assigned patients with the following: Triple lumen catheters, PICO lines, tra-cheostomies, cardiovascular drips, IV push medications or hyper alimentation.
4.The hearing officer-found.-that the allegations from West Jefferson Medical Center concerning the respondent were proven.
• That on January 4, 2011, a patient received an order for Bethanechol PO one hour before or two hours after meals TID to start immediately. The respondent was aware of the order but failed to follow up and administer the medication as ordered due to the j 7medication not being in the computer system. The respondent received a verbal warning for failure to follow policy by not giving medications as ordered to a patient.)
• That on March 17, 2011, a patient made a complaint that the respondent refused to empty her bedside commode. After 2.5 hours the patient became “loud and very upset’ that the commode was not emptied. The respondent was counseled for poor job performance.
• That on April 11, 2011, the respondent discharged a patient. The medication reconciliation was signed by the physician after 1 pm. At 7pm the patient was waiting for an ambulance; however, the respondent failed to complete the necessary paperwork for EMS causing a delay in the patient’s discharge.
• That on May 30, 2011, the respondent failed to document a blood pressure for a patient whose blood pressure had been elevated. The patient received Ni-tropaste at 5pm. The respondent failed to perform any additional interventions and failed to perform follow-up vital signs. At 8pm the oncoming nurse assessed the patient, found the patient’s blood pressure to be 197/94, and had to intervene with PRN medications. The respondent was counseled for poor job performance.
• That on July 6, 2011, a patient bad a blood pressure reading of 183/82. According to the physician orders, the patient should have received 1 Omg Hy-dralazine IV. The respondent failed to follow physician orders. A patient’s point of care capillary glucose was 178. According to physician orders, the patient should have received 2 units of insulin per sliding scale. The respondent failed to follow physician orders.
The respondent was terminated from the facility on July 15, 2011, due to progressive disciplinary process and failure to follow physician orders.

On November 6, 2015, the Board rendered its decision which included the above cited findings of fact. In its decision, the Board issued an Order that permanently revoked Ms. Spears’ license and provided that she could never practice as a practical nurse in the state of Louisiana. The Board further imposed a fine of $500.00 and a hearing assessment fee of $500.00.

JUDICIAL REVIEW

On December 3, 2015, Ms. Spears filed a Petition for Judicial Review pursuant to La. R.S. 49:964 in the district court. In her petition, she alleged that: 1.) the decision of the Board was contrary to the law and evidence, 2.) that there was newly discovered evidence important to the issues that could not have been obtained before or during the hearing, 3.) that issues needed to properly dispose of |sthe matter were not previously considered, 4.) that the decisions of the Board were not supported and sustainable by a preponderance of the evidence, and 5.) that the decisions of the Board were “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

Ms. Spears’ Petition for Judicial Review was heard on May 4, 2016. After reviewing the evidence introduced and the transcript of the administrative hearing and listening to argument of counsel, the court took the matter under advisement. On May 25, 2016, the trial court rendered judgment affirming the order of the Board. Ms. Spears now appeals to this Court.

DISCUSSION

In this appeal, Ms. Spears assigns as error the following:

1. The trial court manifestly erred in failing to find that the appellant had a substantial right in appellant’s nursing license that could not be taken away without satisfying due process.

2. The trial court manifestly erred in finding that the appellee proved by a preponderance of evidence that appellant’s conduct violated La. R.S. 37:969(a)(4) and LAC 46, part xlvii, subpart 1, section 306(t)(7).

3. The trial court erred in failing to find that introduction into evidence of unauthenticated documents was legal error.

4. The trial court erred in failing to find that the Board’s decision lacked sufficiency of evidence to support its findings of facts.

5. The trial court erred in failing to find that the Board’s decision was arbitrary, capricious and an abuse of discretion.

6. The trial court erred in failing to find that the Board failed to afford appellant an opportunity to comply.

7. The trial court erred in failing to find that commingling of roles constituted unlawful procedure.

STANDARD OF REVIEW

The standard of review of an administrative agency’s decision is narrower than the standard of review applied to civil and criminal appeals. Lawhead v. La. State Bd. of Practical Nurse Exam’rs, 07-1593 (La. App. 4 Cir. 10/28/08), 995 So.2d 664, 668. La. R.S. 49:964G sets forth the exclusive grounds upon which an administrative agency’s decision may be reversed or modified on appeal. Id. La. R.S. 49:964G states that:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

In an administrative agency case, the district court acts as a reviewing court. The district court’s standard of review in reviewing the factual findings of the administrative agency is manifest error. The district court may only reverse the administrative tribunal’s exercise of discretion and conclusions upon finding that the agency’s action was arbitrary and capricious. Haygood v. La. State Bd. of Dentistry, 11-1327 (La. App. 4 Cir. 09/26/12), 101 So.3d 90, 94. “It is elementary that a court’s function is not to weigh de novo the available evidence and to substitute its judgment for that of the agency.” Save Ourselves, Inc. v. La. Environmental Control Commission, 452 So.2d 1152, 1159 (La. 1984).

In Armstrong v. La. State Bd. of Med. Examiners, 03-1241 (La. App. 4 Cir. 02/18/04), 868 So.2d 830, 838, the court said:

A reviewing court should not set aside an administrative agency’s decision to impose a particular sanction unless that decision can be characterized as arbitrary, capricious or an abuse of discretion. “The imposition of ah administrative sanction is in the nature of a | ^disciplinary ' measure. In deciding what, if any, discipline to impose, the Board may be strict, moderate or lenient.”
The jurisprudence has also recognized that “in reviewing such [administrative] actions, courts must be cognizant of the strong presumption of validity and propriety in such administrative actions where casting judgment upon the professional behavior of a fellow member of a profession is a matter peculiarly within the expertise of an agency composed of members of that profession.” (Citations omitted).

An administrative agency’s conclusion is “capricious” when it has no substantial evidence to support it. Likewise, the word “arbitrary” implies a disregard of evidence or the proper weight théreof. Sterling v. Department of Public Safety & Corrections, Louisiana State Penitentiary, 97-1960 (La. App. 1st Cir. 09/25/98), 723 So.2d 448, 455; Marsellus v. Dep’t of Pub. Safety & Corr., 04-0860 (La. App, 1 Cir. 09/23/05), 923 So.2d 656, 661.

Our appellate review is de novo, without regard for the decision of the trial court. Tomorrow’s Investors, LLC v. State, 11-1616 (La. App. 1 Cir. 03/23/12), 92 So.3d 364, writ denied, 12-0886 (La. 06/01/12), 90 So.3d 444:

Once a final judgment is rendered by the trial court in reviewing an administrative final' decision in an ádjudicátion proceeding, an aggrieved party may seek review of same by appeal to the appropriate appellate court, and on review of the trial court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the trial court, just as no deference is owed by the Louisiana Supreme Court to factual .findings or legal conclusions of the court of appeal. Id. at 366.

Finally, “Given the jurisprudential presumption of . correctness of an agency’s actions, [appellant, in this case Ms. Spears] bears the burden of proving the record contains no facts that would establish the validity of the charges levied against her.” Cranford v. La. State Bd. of Practical Nurse Examiners, 08-209 (La. App 4 Cir. 10/01/08), 996 So.2d 590, 601.

Ms. Spears first contends that the trial court erred in failing to find that her due process rights were-violated during the revocation proceedings. She further | ¶ ¶ argues that her license was revoked based on hearsay evidence and unreliable Breathalyzer results.

The record reflects that ‘ Ms. Spears was given notice of the hearing and of the charges against her and that she was provided, the documentation entered into evidence at the hearing. Ms. Spears was afforded an opportunity to question the witnesses against her, and she was able to testify on her own behalf. In this appeal, . Ms. ■ Spears contends that she was not given names, referenced in the complaints, however she did not object at the hearing and her questioning and testimony reflected that she knew the identity of those persons.

Ms. Spears next contends that the evidence presented against her was inadmissible hearsay. However, hearsay evidence is admissible in administrative hearings, recognizing that the inability to cross-examine the declarant affects the weight that the evidence carries. Louisiana Household Good Carriers v. La. Pub. Serv. Comm’n, 99-3184 (La. 06/30/00), 762 So.2d 1081, 1089-90. In Chaisson v. Cajun Bag & Supply Co., 97-1225 (La. 03/04/98), 708 So.2d 375, 382, the court said that hearsay evidence “can qualify as ‘competent evidence,’ provided that the evidence has some degree of reliability and trustworthiness and is of the type that reasonable persons would rely upon.” In this case, the evidence consisted of records kept by the employer hospitals during their regular course of business, documenting interactions with Ms. Spears. Ms. Spears did not object to those records, and did not deny that those instances had occurred. Instead she offered her versions of what occurred during those times. Although the evidence may have contained hearsay statements by certain medical professionals and patients, we do not find that the Board erred in allowing that evidence during the hearing.

Ms. Spears also challenges the results of the Breathalyzer test, alleging that the Board should not have considered those results because the' person who calibrated the machine for Global did not testify. The procedures for maintenance haand calibration were set forth by Ms. Lager, who performed the test. She further stated that there was nothing to show that these procedures were not followed in Ms. Spears’ case.

Accordingly, we find that Ms. Spears’ due. process rights were not violated. This allegation is without merit.

Second, Ms. Spears contends that the trial court erred in failing to find that evidence presented was insufficient to support the Board’s findings, and in failing to find that the Board’s decision to revoke her license was arbitrary and capricious and an abuse of discretion,

Ms. Spears appears to argue that the evidence failed to show that she was “habitually intemperate” so as to warrant revocation of her license. However, it is clear from the Board’s ruling that Ms. Spears’ license was revoked for several violations, including evidence that reflected “incompetence by reason of neglect, habit, or other causes,”' and “unprofessional conduct” as described in the Louisiana Administrative Code, Title 46, Part XLVII, governing registered nurses and practical nurses such as Ms. Spears.

Reviewing the evidence as a whole, we find that Ms. Spears has failed to meet her burden of proving that the record contains no facts to establish the validity of the charges against her. We further find that the Board’s decision was not arbitrary and capricious, and was supported and sustainable by a preponderance of the evidence. This argument is meritless.

Third, Ms. Spears argues that the trial court.erred in failing to find error in the Board’s consideration of “stale” claims against her. In this allegation; Ms. Spears argues that the hearing officer erred in considering her employment record- from West Jefferson Medical Center for the time period of January 4, 2011 through July 6,2011.

' hsAt the time the formal complaint against Ms. Spears was filed, La. R.S. 37:21A provided that:

Unless a special law is applicable, no proceeding of any kind may be initiated by a professional or occupational board or commission as follows:
# * #
(4) If the nature of the complaint is based on a license or rules violation, no proceeding may be initiated after five years from the date of the act or omission.

The allegations of deficient performance narrated in West Jefferson Medical Center’s employment records and described by Ms. Spear’s supervisor, Ms. Caleyo, and the hearing were within the five year period of La. R.S. 37:21, within which a complaint for that particular conduct could have been filed. Ms. Spears cites no authority and we have found none which would dictate that such allegations could not be considered in a proceeding initiated by a subsequent employer. This allegation is without merit.

Fourth, Ms. Spears argues that the Board failed to afford her an “opportunity to comply” prior to revoking her license. She refers to the recommendations made by the Hearing Officer at the close of the hearing, and contends that it was error for the Board to terminate her license without giving her an opportunity to comply with those recommendations. In support of this argument, she cites La. R.S. 49:961C which states:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gives notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined. (Emphasis added.)

| uThe record shows that Ms. Spears was notified of the facts and/or conduct which would warrant that the Board take action, and that she was given an opportunity to address these allegations and could have attested to any actions she had taken to show compliance or remedy the deficiencies prior to the institution of agency proceedings. La. R.S. 49:9610 does not require that the Board make recommendations and that the licensee be given an opportunity to show compliance with those recommendations after institution of proceedings. This allegation of error is without merit.

Fifth, Ms. Spears argues that the commingling of roles during the hearing prejudiced her substantial rights and, therefore, the Board’s decision should be reversed. We find no merit to this allegation. Ms. Spears alleges that Ms. Ansardi served as both the chairman of the Board and the Hearing Officer. However, from the record it is clear that Myra Collins, and not Ms. Ansardi, served as the Hearing Officer. In addition, while Ms. Spears contends that the Board’s attorney, Mr. Sullivan, “functioned in multiple capacities,” the record clearly shows that Ms. Sullivan functioned as attorney for the Board and in no other capacity. This assignment of error has no merit.

In áddition to her assigned errors, Ms. Spears argues that the Board’s decision creates collateral consequences, alleging that because the Board reported the revocation of her license to “all required data banks and agencies as required by law,” which includes the U.S. Inspector General, she will be unable to gain employment in a facility that receives federal funding. She also contends that “the fining and assessing of costs of $1,000 against someone whose livelihood has been [stripped] away is an abuse of discretion and unwarranted. Ms. Spears cites no authority for these arguments. These arguments are without merit.

^CONCLUSION

For the above discussed reasons, we find that the Louisiana State Board of Practical Nurse Examiners was not arbitrary and capricious in its decision to revoke Ms. Joanetta Spear’s L.P.N. license. We therefore affirm the decision of the trial court which affirmed the ruling of the Louisiana State Board of Practical Nurse Examiners.

AFFIRMED

      , La. R.S. 37:969A(4)(c)(d)(f)(g) provides:
      A. The board shall:

      (4) Conduct hearings upon charges calling for discipline of a licensee, or for revocation, denial or suspension of a license issued or applied for under this Part upon proof that ■the

      (c) Is unfit, or incompetent by reason of negligence, habit, or other causes; or
      (d) Is habitually intemperate or is addicted to the use of habit forming drugs; or

      (f) Is guilty of unprofessional conduct; or
      (g) Has violated any provisions of this Part. LAC 46:XLVII.306T(3)(4) and (8)(a)(b)(c)(g)(j)(p)(q)(t) provides:

      T. The grounds for disciplinary proceedings include, but are not limited to:

      3. being unfit, or incompetent by reason of negligence, habit or other causes; 4. being habitually intemperate or addicted to the use of habit-forming drugs;

      8. being guilty of unprofessional conduct; unprofessional conduct includes, but is not limited to the following:
      a. failure to practice practical nursing in accordance with the standards normally expected;
      b. failure to utilize appropriate judgment in administering nursing practice;
      c. failure to exercise technical competence in carrying out nursing care;

      g. improper use of drugs, medical supplies, or patients’ records;
      j, intentionally committing any act that adversely affects the physical or psychosocial welfare of the patient;

      p. inappropriate, incomplete or improper documentation;
      q. using or being under the influence of alcohol while on duty, and/or while making application for employment, or using or being under the influence of drugs which impair judgment while on duty, or using or being under the influence of illegal drugs whether on or off duty;

      t. violating any provisions of R.S. 37:961 et seq. (the practical nursing practice act), as amended or aiding or abetting therein.

      . La. R.S. 37:21 was amended in 2016 to exempt the Louisiana State Board of Practical Nurse Examiners from the limitations on disciplinary proceedings set forth in that statute. 2016 La. Act 368, eff. August 1, 2016.


text:
    LAPALCO VILLAGE JOINT VENTURE v. Wendell PIERCE, Troy A. Henry, James Hatchett, Sterling Fresh Foods, LLC and ASI Federal Credit Union
    NO. 16-CA-731
    Court of Appeal of Louisiana, Fifth Circuit.
    June 15, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, LAPALCO VILLAGE JOINT VENTURE Jacob Kansas
    COUNSEL FOR DEFENDANT/AP-PELLEE, ASI FEDERAL CREDIT UNION Randy G. McKee, Amelia D. Colomb
    Panel composed of Fredericka Homberg Wicker, Marc E. Johnson, .and Stephen J. Windhorst
   WINDHORST, J.

| rAppellant, Lapalco Village Joint Venture (“Lapalco”), appeals the trial court’s judgment granting summary judgment in favor of appellee, ASI Federal Credit Union (“ASI”), and dismissing Lapalco’s claims against ASI with prejudice. For the reasons that follow, we reverse and remand for further proceedings.

Facts and Procedural History

On March 29, 2012, Sterling Fresh Foods, LLC (“Sterling”) entered into a lease agreement with Lapalco for the lease of Lapalco’s premises located at 5969 La-palco Boulevard, in Marrero, for the purpose of operating a grocery store. The starting date of the lease was delayed until March 20, 2013. On May 2, 2014, Sterling employed or authorized PKK, Inc. to operate the grocery store on the leased premises in violation of the lease agreement. On June 6, 2014, Lapalco issued Sterling a notice of default, and on September 14, 2014, Lapalco issued Sterling a notice of lease termination. Sterling vacated the premises on November 19, 2014.

On June 20, 2012, soon after Sterling and Lapalco executed the lease agreement, Sterling entered into a Business Credit and Continuing Security Agreement with ASI for the advance of funds. Sterling granted a security interest to ASI in all its inventory, general intangibles, instruments, letter-of-credit rights, deposit accounts, chattel paper, accounts, documents equipment, and fixtures located at 5969 Lapalco Boulevard. The security interest also included all business assets and was personally guaranteed by Wendell Pierce and Troy Henry. ASI recorded a UCC Financing Statement regarding the security interest agreement on July 30, 2012, in the UCC records of Jefferson Parish.

|gOn February 25, 2015, Lapalco filed suit against Wendell Pierce, Troy Henry, James Hackett, Sterling, and ASI. Lapal-co sought damages against Sterling for unpaid common area maintenance, taxes, insurance, and other sums due pursuant to the lease. Lapalco also sought damages against Sterling for improper removal, conversion, and/or sale of part of the leased premises, contending that Sterling wrongly removed a refrigeration and freezer unit. Lapalco contended that the units were immovable fixtures and/or alterations and improvements to an immovable fixture, and that Sterling was required to leave the units at the time of the expiration of the lease. Lapalco further sought damages against ASI, contending that ASI.was “instrumental in and did participate in the removal/sale of said refrigerator/freezer units, did Deceive the funds from the sale of said units, and as such is responsible for the costs of replacing the units.”

On June 17, 2016, ASI filed a motion for summary judgment arguing that Lapalco was not in “contractual privity” with ASI, and that Lapalco’s “rights to movable property, namely a refrigeration unit and freezer unit, are subordinate to the security interest granted to ASI by Sterling.”

The matter was heard on August 23, 2016, and on September 22, 2016, the trial court granted judgment in favor of ASI. On January 27, 2017, pursuant to this court’s order, the trial court amended its judgment finding in favor,.of ASI and dismissing Lapalco’s claims against ASI with prejudice. This appeal followed.

Discussion

Appellate courts review summary judgment de novo, using the same criteria that the trial court does in determining whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Cutsinger v. Redfern, 08-2607 (La. 05/22/09), 12 So.3d 945, 949; Smith v. Our Lady of the Lake Hosp., 93-2512 (La. 07/05/94), 639 So.2d 730, 750. A motion |sfor summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue .as to material fact and that the mover is entitled to judgments as a matter of law. La. C.C.P. art. 966 A(3). '

Appellant contends that the ' trial court erred in granting ASI’s motion for summary judgment. Appellant’s nine assignments of error concern the following issues: 1) ownership of the walk-in refrigeration and freezer units; 2) whether the units were component parts of the leased premises; 3) whether the units remained component parts of the leased premises after the units were replaced and/or parts replaced;' and 4) whether ASI had a valid security interest over the units that were originally leased with the premises.

Whether a thing has become a component part of an immovable, and therefore subject to the laws, governing immovable property, is determined by the application of La.' C.C. arts. 465, 466, and

467. Pursuant to these articles, things may become a component part of any immovable in one of three ways: by incorporation into a building or other construction (La. C.C. art. 465); by permanent attachment thereto (La, C.C. art. 466); or by declaration of the owner (La. C.C. art. 467). Willis-Knighton Med. Ctr. v. Caddo-Shreveport Sales & Use Tax Comm’n, 04-0473 (La. 04/01/05), 903 So.2d 1071, 1078-1079.

Other things are component parts of a building or other construction if they are attached to such a degree that they cannot be removed without substantial damage to themselves or the building or other construction.

|4The following facts are not in dispute. Sterling entered into a lease agreement with appellant for the lease of 5969 Lapal-co Boulevard, to be operated as a retail grocery store. The large walk-in refrigeration and freezer units were part of the leased premises between appellant and Sterling. Sterling completely replaced the walk-in freezer unit and disposed of the original freezer that was attached to the premises. Sterling replaced the entire cooling system in the walk-in refrigeration unit that was attached to the premises. Upon termination and eviction from the lease, Sterling removed both walk-in units from the leased premises, leaving a large opening in the exterior wall of the premises that was filled in with cinder blocks. After removal of the units, Sterling gave the units to ASI to sell.

Upon de novo, we find review shows that the trial court erred in granting ASI’s motion for summary judgment because genuine issues of material fact remain that preclude summary judgment in this case. First, the lease and evidence established that the walk-in units were owned and part of the leased premises at the túne Sterling entered into the lease of 5969 Lapalco Boulevard. ASI’s security interest is in, among other things, all of Sterling’s “equipment.” Equipment is not defined in the security agreement, and a specific list of “equipment” that includes the refrigeration and freezer units is not included in any document.

Additionally, while it is not disputed that Sterling replaced one of the units and replaced parts in the other unit, there exists a material issue of fact as to whether this converted the ownership of the walk-in units from Lapalco to Sterling. Paragraph 14 of the lease provides that “Lessee, at its sole cost and expenses, whether the same shall be the property of Lessee or Lessor, shall promptly repair and all times maintain in good condition the said premises.” Paragraph 29 further provides that:

“lessee is obligated not to make any additions or alterations whatsoever to the premises without Lessor’s prior written permission. All additions, alterations or improvements made by the Lessee with or | ^without consent of Lessor, no matter how attached (except movable trade fixtures), must remain the property of Lessor, unless otherwise stipulated herein. ... the Lessor, at his option may require the building to be replaced in its original condition by Lessee, at Lessee’s sole cost and expense.”

Thus, a genuine issue of material fact clearly exists as to whether Sterling became owner of the walk-in refrigeration units when it replaced one unit and replaced parts in the other unit.

Further, there is a genuine issue of material fact as to whether the walk-in units were component parts of an immovable (ie., the leased premises). ASI argued that Lapalco could not show that the walk-in units were component parts of the leased premises under La. C.C. art. 465 466, 467. Additionally, ASI argued that the removal of the units from the wall of the building created only superficial, insubstantial wall damage that is not sufficient to meet the substantial damage test. However, photographs of the wall where the units were taken out were admitted into evidence to show the large hole in the exterior wall filled in with cinder blocks. Further, in his affidavit, Howard Green stated that the photographs show the walk-in units are attached to the roof and side walls of the premises. He also stated that the electricity used to operate these units came through the electrical service boxes located in the leased premises. Thus, a genuine issue of material fact exists as to whether the premises sustained substantial damage when the walk-in units were removed from the building.

Finally, ASI filed a UCC Statement in the UCC records in Jefferson Parish, which provides that ASI has a “first security interest in all business assets including but not limited to all furniture, equipment, accounts receivables and inventory located at 5969 Lapalco Blvd. Marrero, LA.” The statement also provides for the “personal guarantees of Wendell E. Pierce and Troy A. Henry.” For the same reasons stated above, genuine issues of material fact exist as to the ownership of the units and whether they are considered equipment under the | fisecurity agreement. Therefore, genuine issue of material fact as to whether ASI has a security interest in the walk-in units.

Conclusion

Accordingly, for the reasons stated above, the trial court’s judgment granting summary judgment in favor of ASI is reversed, and this case is remanded for further proceedings.

REVERSED AND REMANDED

      . In the petition, Lapalco included defendants, Pierce, Henry, and Hackett as guarantors, alleging that they executed an in solido early termination guaranty which made them personally liable on behalf of Sterling.

      . La. C.C. art. 465 provides:
      Things incorporated into a tract of land, a building, or other construction, so as to-become an integral part of it, such as building materials, are its component parts.

      . La. C.C. art. 466 provides:
      Things that are attached to a-building and that, according to prevailing usages, serve to complete a building of the same general type, without regard to its specific use, are its component parts. Component parts of this kind may include doors, shutters, gutters, and cabinetry, as well as plumbing, heating, cooling, electrical, and similar systems.
      Things that are attached to a construction other than a building and that serve its principal use are its component parts.

      . La. C.C. art. 467 provides:
      The owner of an immovable may declare that machinery, appliances, and equipment owned by him and placed on the immovable, other than his private residence, for its service and improvement are deemed to be its component parts. The declaration shall be filed for registry in the conveyance records of the parish in which the immovable is located.