author: PER CURIAM Hughes, J., CRICHTON, J., GENOVESE, J.,

text:
    STATE of Louisiana v. Joseph Michael MOULTRIE
    No. 2015-K-2144
    Supreme Court of Louisiana.
    06/29/2017

      TERREBONNE PARISH DISTRICT ATTORNEY’S OFFICE, Hon. Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, for Applicant.
    Gwendolyn Kay Brown, for Respondent.
   PER CURIAM

11 Defendant was found guilty as charged of possession with intent to distribute co-came, La.R.S. 40:967(A), based on approximately two ounces of crack cocaine found by officers in a barbeque grill in a driveway between two trailers, one of which belonged to defendant’s mother. Officers noticed defendant standing in the street in front of the trailer at approximately 11 p.m. in a high crime neighborhood.'Defendant quickly retreated out of view into' the driveway when he saw the officers before returning to the street. One officer approached defendant while two others entered the driveway to see if defendant had discarded drugs or a weapon. They noticed that there were torn baggies on the ground that appeared to have cocaine and marijuana residue. At the end of the driveway farthest from the street, one officer also noticed a grill whose lid was slightly askew with dew that had been disturbed on the handle. Inside the grill was the large quantity of cocaine.

When arrested, defendant claimed he lived in the trailer, the grill belonged to his family, and he disavowed any knowledge of the cocaine but said there was npthing the officers “could do about it” because the cocaine was found on his property. At trial, defendant’s sister 'testified that their mother lives in the trailer (and she gave a street address , for the trailer that was not the same as that provided by defendant earlier) but defendant does not live with their mother although he does visit her. Defendant’s sister also testified that their mother owns a barbeque Iggrill, which she moves to various locations on the property as she uses it but she does not normally place where this grill was described to have been.

On appeal, defendant contended the district court erred in denying his motion to suppress and that the evidence was insufficient to support the conviction. At the outset, the court of appeal correctly noted that, in reviewing a trial court’s ruling on a motion to suppress, the reviewing court looks to the totality of the evidence presented at the motion to suppress hearing and the trial. See State v. Burkhalter, 428 So.2d 449, 455 (La. 1983) (citing State v. West, 408 So.2d 1302, 1307 (La. 1982)). The court of appeal also found that the officers had reasonable suspicion to stop and question the defendant based on his location, the hour, the reputation of the neighborhood, and his reaction when he' saw the officers. The court of appeal determined, however, that the search inside the grill Was beyond the permissible scope of a protective search for weapons that might be used to harm them. See State v. Moultrie, 14-1535, pp. 5-8 (La. App. 3 Cir. 10/23/15), 182 So.3d 1017, 1022-23. The dissent, in contrast, found no basis to suppress the evidence because, among other reasons, defendant had no reasonable expectation of privacy in the grill. See id., 14-1535, p.2, 182 So.3d at 1025-26 (McDonald, J., dissenting). After examining the totality of the evidence presented at the motion to suppress hearing and the trial, we agree with the dissenting judge’s determination.

The Fourth Amendment to .the United States Constitution and Article 1, Section 5 of the Louisiana. Constitution prohibit unreasonable searches and seizures. A-warrantless search is per-se unreasonable unless the state can show it falls within one of the limited and well-delineated exceptions to the warrant requirement. State v. Hernandez, 410 So.2d 1381, 1383 (La. 1982) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)); State v. Zito, 406 So.2d 167, 168 (La. 1981). A limited search incident to an | .¡investigatory stop is one such exception. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993).

La. Const, art. I, § 5 extends standing to “[a]ny person adversely affected” by an invalid search or seizure to raise its illegality. However, the protection is not unqualified, because La. Const, art. I, § 5 also presupposes that “there must be an invasion of someone’s rights to privacy before there can be an unreasonable search.” State v. Perry, 502 So.2d 543, 558 (La. 1986). The test of whether and when an intrusion on privacy rights occurs as a matter of the Louisiana constitution is identical to the Fourth Amendment standard, i.e. the person must possess an objectively reasonable expectation of privacy in the area. Perry, 502 So.2d at 558; State v. Ragsdale, 381 So.2d 492, 497 (La. 1980) (“The test for determining whether one has a reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable.”).

Although the state ultimately bears the burden of establishing the validity of a warrantless search, in challenging the search a defendant bears an initial threshold burden of showing that he had a reasonable expectation of privacy in the premises. See, e.g., United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2555, 65 L.Ed.2d 619 (1980). Defendant thus was in the difficult position of having to both distance himself from the barbeque grill, if he hoped to be found not guilty of possession of the cocaine found inside it, and tie himself more closely to the grill, if he hoped to obtain a favorable ruling on the motion to suppress. Trying to do both, he succeeded at neither.

As noted by the dissent in the court below, the ownership of the grill was never established. See Moultrie, 14-1535, pp. 3-4, 182 So.3d at 1026-27 L(McDonald, J., dissenting). It was never seized as evidence and never identified from any photograph as the grill belonging to defendant’s mother. Although defendant’s sister testified that her mother used a grill, her testimony did not establish that the grill in which the drugs were found belonged to defendant’s mother. Defense counsel, in fact, argued in closing that the state never proved who owned the barbeque grill or on whose property it sat. Because defendant failed at the threshold to make a showing of any reasonable expectation of privacy in the barbeque grill, the inquiry ends. Accordingly, we reverse the court of appeal’s ruling and remand for consideration of defendant’s claim that the evidence is insufficient to support the conviction.

REVERSED AND REMANDED

WEIMER, Justice, recused.

HUGHES, Justice, dissents for the reasons given by the court of appeal.

CRICHTON, Justice, additionally concurs and assigns reasons.

GENOVESE, Justice, dissents and assigns reasons.

Hughes, J.,

dissenting..

hi respectfully dissent for the reasons given by the court of appeal.

CRICHTON, J.,

additionally concurs and assigns reasons:

hi agree with the per curiam’s conclusion that the defendant failed to establish any reasonable expectation of privacy in the barbeque grill, and therefore the search inside the grill was within the scope of a permissible search for weapons that might be used to harm law enforcement. I write separately to emphasize the paramount importance of officer safety in exigent situations such as these. Here, the officers encountered the defendant at a late hour in a known high-crime area, and observed the drugs and related paraphernalia on the ground near defendant. The barbecue grill, which the officers observed had its lid askew and the dew on the handle disturbed, could have been used to destroy evidence or conceal a gun. As a result, in my view, the officers were justified in searching the grill to secure their safety during this rapid encounter with defendant. See Warden, Maryland Penitentiary v. Bennie Joe Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967) (Court finding warrantless home entry and subsequent search for a robber reasonable, as the “exigencies of the situation made that course imperative,” (quoting McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948)) and finding that “[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”). As the U.S. Supreme Court held in Terry v. Ohio, “[wjhen an officer is justified in believing that the individual whose ^suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” 392 U.S. 1, 24, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889 (1968).

GENOVESE, J.,

dissents.

hi dissent for the reasons assigned by the court of appeal.

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Eric LEWIS v. STATE of Louisiana
    No. 2016-KH-0347
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

h Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Moreover, relator has previously exhausted his right to state collateral review. See State ex rel. Lewis v. State, 15-1558 (La. 9/16/16), 201 So.3d 242.


text:
    STATE EX REL. Ronald A. SCHEXNAYDER v. STATE of Louisiana
    No. 2016-KH-0769
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE EIGHTEENTH JUDICIAL DISTRICT COURT* PARISH OF IBER-VILLE

PER CURIAM:

11 Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator 'has now fully litigated three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8.' Notably, the Legislature in 2013 La. Acts 251 amended that article- to make the procedural bars against successive filings mandatory. Relator has filed an application for. post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Patrick Dewayne DYAS v. STATE of Louisiana
    No. 2016-KH-0273
    Supreme Court of Louisiana.
    8/4/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

11 Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Ronald SIMS v. STATE of Louisiana
    No. 2016-KH-0540
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

LDenied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930,8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. Moreover, though he styled it as a supplement to his initial timely-filed application for post-conviction relief, because relator did not file the pleading at issue until after the district court had ruled upon his first application, relator shows no error in the district court’s dismissal. See State ex rel. Duhon v. Whitley, 92-1740 (La. 9/2/94), 642 So.2d 1273 (district court retains discretion to allow petitioner to supplement or amend claims before it has issued a ruling on them); cf. Smith v. Cajun Insulation, 392 So.2d 398, 402 n.2 (La. 1980) (“courts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice”).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations | .¿period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    STATE EX REL. Christopher C. HOLBROOKS v. STATE of Louisiana
    No. 2016-KH-0728
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CAL-CASIEU

PER CURIAM:

|t Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. See La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.

Relator has now fully litigated an application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Gr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in Raccord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Johnson, C.J. n.s.


text:
    STATE EX REL. Todd Michael BOQUET, Jr. v. STATE of Louisiana
    No. 2016-KH-0342
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TER-REBONNE

PER CURIAM:

| iDenied. The application is moot in light of State v. Boquet, 15-1883 (La. App. 1 Cir. 3/21/16) (unpub’d), which is attached hereto and incorporated into this ruling.

Attachment

| .STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

STATE OF LOUISIANA

VERSUS

TODD M. BOQUET, JR.

NO. 2015 KW 1883

MAR 21 2016

In Re: Todd M. Boquet, Jr., applying for supervisory writs, 32nd Judicial District Court, Parish of Terrebonne, Nos. 635187, 635840, & 648691.

BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ.

WRIT GRANTED. As an indigent inmate, relator is entitled to receive certain court documents, such as his guilty plea transcript, the bill of information or indictment, commitment papers, court minutes for various portions of the trial, and minutes of his sentencing, free of charge without the necessity of establishing a particularized need. See State ex rel. Simmons v. State, 93-0275 (La. 12/16/94), 647 So.2d 1094 (per curiam). For all other documents, the inmate is required to establish a particularized need by properly filing an application for postconviction relief, which sets out" specific. claims of constitutional errors requiring the requested documentation for support. See State ex rel. Bernard v. Criminal District Court Section “J”, 94-2247 (La. 4/28/95), 653 So.2d 1174, 1175 (per curiam); State ex rel. McKnight v. State, 98-2258. (La. App. 1st Cir. 12/3/98), 742 So.2d 894, 895 (per curiam). Relator properly filed an application for postconviction relief with the trial court, and he is now seeking review with this Court of the trial court’s denial of his application. Relator has made several attempts to obtain the documentation to which he is entitled, and which is necessary for a review of his application. Therefore, the district court is instructed to provide relator with the documents to which he is entitled on or before April 22, 2016, if it' has not already done so. Considering the claims raised in his application for postconviction relief, the district court should also provide relator copies of his guilty plea and sentencing transcripts. Thereafter, relator has until May 23, 2016, to file his new application with this Court, which should include' all documentation provided to him by the district court, the entire contents of this and his previously filed writ applications, and copies of this court’s rulings on his applications.

TMH

WJC

JTP

COURT OF APPEAL, FIRST CIRCUIT

M

DEPUTY CLERK OF COURT

FOR THE COURT


text:
    STATE EX REL. Michael WILLIAMS v. STATE of Louisiana
    No. 2016-KH-0263
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| ^Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator’s remaining claims are unsupported. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

12Attachment

_k

He argües that his attorney should have obtained photographs or video of toe location orxeqirired the jwy to visit the scene.

During ike trial, the witness, Michael Gordon, w&o fcw’hofl the petitioner and the deceased, was shown photographs of the areas where ¡he confrontation tapk ptecei.Uiese photographs, were later introduced into evidence and shown to the'jury, Mr. Gordon was care&lly cross-examined as to what he Witnessed on April 26,2009. In addition, the petitioner himself testified, He acknowledged familiarity with this part of the Scottsville neighborhood

Because the jury had the benefit of multiple witnesses explaining the photographs and the unfolding scene, defense counsel was riot deficient to failing to producá ad&obal photographs. Furthermore, although the petitioner heard fee testimony of Michael Gordon at tria!, the petitioner testified that Mr. Gordon made a mistaken identification, not that te’was-tmahio to see him attacking toe victim. At the time, of trial, theiu Was no allegation that the canfemtation could not he seen from.’Mr. Gordon's vantage point.

This claim is made in the context of an allegation, of ineffective assistance of counsel. ■Under the well-known standard set out in Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052,80 LJZi,2d 674 (1984), and Stott y. Washington, 491 So.id 1337 (La.3 986), a conviction must be reversed if the pctitloner.provos (1) that counsel's performance fall below an objective standard of reasonableness under prevailing proAs stand norma, and (2) counsel's mad equate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Legranet, 2002-1462 (La.12/3/03), 864 Sq.2d 89.

To be successful in arguing ineffective asestante of counsel, a post-conviction petitioner must prove deficient performance to the point that counsel is not functioning as counsel within the meaning of the Sixth Amendment. A petitioner must also prove actuad prejudice to the point that the remits of the trial cannot he trusted. It is, absolutely essential feat bofe .prongs of the Strickland teatraustbe established before relief will be granted by arcviewing court.

Furthermore, there is a strong presumption,that counsel's performance is within the wide range of effective representation. Significantly, effective counsel does not mean errorless counsel and fee reviewing court does not judgo counsel’s performance with the distorting benefits of hindsight, but rather determines whether counsel was reasonably likely to render effective assistance. State y. Salsr, 93-1042 (LaApp. 5 Cir. 4/26/94), 636 SoM 3069,1075.

In this case, fee c}aita wade regarding failure to investigate is speculative. It is not established that any different evidence could have been produced. It has not been established that feo trial produced an unreliable result This claim fails to meet the petitioner's heavy burden of proof.

On. fee claim feat appellate counsel was ineffective, the petitioner has likewise not met his burden of proof. Specifically, the petitioner alleges that his attorney Premise L, Whits was constitutionally deficient in representing him on appsaiby net raising fee confrontation claim he now asserts.

In reviewing claims of ineffective assistance of counsel on direct appeal, the Supremo Court of fee United States hiss eocptessly observed'toat appellate counsel 'teed not advance every argument, regardless of merit, urged by tjie defendant ¿Wife v. Lvaey 469 U.S, 387,394 (1985). The'Court gives great deference to professional appellate strategy and ¾⅞⅛⅞! counsel for "winnowing out weaker arguments on appeal and focusing on one central issue if possible, and at most a few key issues. Jones v. JSarnaj, 463 U.S. 745 (1983). This is brie even whore fee weaker arguments have merit Id. at 751-2.

When fee claim of ineffective assistance Of appellate counsel is based on Sitae to raise tile issue on appeal, fee prejudice prong of the Strickland test requires fee petitioner to establish that the appellate court would have granted relief; had fee issue been prised. United States v. Phillips, 210 F.3d 345,350 (5 Cir. 2000).

hr fete oase,_foe petitioner ⅛ unable fo point to an advene reling form fee trial court to support any meritorious appellate argument on te subject Significantly, fee Fifto Circuit Court of Appeal detailed the facte of fee crime at great length, finding the evidence was constitutionally sufficient to comdot,

On fete claim, fee petitioner faite to prove ejfeer prong of fe» Stricéfand test He fails to show feat oounsol’a choice to argue sufficiency as toe sote issue on appoaííwas deficient or below accepted standards,

For these reasons, the court finds no merit to petitioner's'dirim of ineffective assistance by trial nr appellate couusbL

JU.

Claim Three: Denial of his rights to confront witnesses and receive a fair trial

la Ms final post-conviotian claim, the petitioner oontiaujs that he suffered a •violation of the confrontation danse of the United States Constitution. Article "VI of the Constitution provides feat "m all criminal prosecutions, the aeoused stall ergoy the right.,. to he confronted "with the •witnesses against him." It ⅛ fundamental that the Confrontation Clause is designed to ensure the reliability of the evidence against a erfmirtel defendant by subjecting it to rigorous testing-in the context of on adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990).

During the trial, Jefitoaon Perish Detective Kevin Deo&er testified that he “authored an arrest warrant for Michael 'WlUiarna due to him having been identified fcs hsving chased the victim across that field that we were just looking-st through the canal to Esther end Horence and shooting Mm multiple times.” (Tr, p. 607). At thb point, defense counsel raised an objection on hearsay grounds. The court agreed and stated that the testimony was not coming in and that nobody would testify to what he was told. (Tr. p. 609). The court specifically ordered fee jury to disregard the testimony as to whst the vrituess was told. (It. p. 610).

Defense counsel diligently objected to hearsay evidence m a thfisfy manner. The trial court sompnlonaly excluded potential hearsay evidence and issued, « requested, a curative instruction. Based on the trial court’s grant of relief after the brief refatence, fee petitioner cannot .establish prejudice or unfairness.

CONCLUSION

Under the authority of LSA-C.CcJ?. art. 930 A the petition»! in an-applicafioa for post-conviction relief shall have the burden of proving that lelief should be granted. The petitionerhas not met his heavy Muden on his claims.

The petitioner hsd á fair trial with reliable results. He has had judicial review of bis convictions and sentence. He has failed to prove the existence of constitutional errors grave enough to warrant post-conviction relief.

The court will deny relief on all claims.

Accordingly,


text:
    STATE EX REL. David B. TARVER v. STATE of Louisiana
    No. 2016-KH-0538
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CAL-CASIEU

PER CURIAM:

11 Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator, who pled guilty, otherwise fails to satisfy his post-conviction burden of proof that he is entitled to an out-of-time appeal. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 261 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application 1 ¡^applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Johnson. C.J. n.s.

Genovese, J., recused

| s Attachment


text:
    STATE EX REL. Jaive T. STEWART, Sr. v. STATE of Louisiana
    No. 2016-KH-0490
    Supreme Court of Louisiana.
    8/04/2017
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C, § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant to order an evidentiary hearing.


text:
    STATE EX REL. Christopher MARTIN v. STATE of Louisiana
    No. 2016-KH-0188
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| (Writ granted in part. If it has not already done so, the district court is ordered to provide relator with a copy of its September 22, 2015 ruling, as ordered by the court of appeal. See State v. Martin, 15-1310 (La. App. 4 Cir. 12/18/15) (un-pub’d). The district court is further ordered to provide this Court with proof of its compliance within 30 days and to record a minute entry consistent with this order. The application is otherwise denied.


text:
    STATE EX REL. Roger D. CHAIRS v. STATE of Louisiana
    No. 2016-KH-0262
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Johnson, C.J., n.s.

Hughes, J., would grant to order an evidentiary hearing.

Hughes, J., would grant to order an evidentiary hearing.


text:
    STATE EX REL. Arthur NICHOLAS v. STATE of Louisiana
    No. 2016-KH-0534
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION

PER CURIAM:

h Denied. The applications were not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 980.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    STATE EX REL. Leonardo R. GERMAN v. STATE of Louisiana
    No. 2016-KH-0260
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF PLAQUEMINES

PER CURIAM:

11 Denied. Relator fails to show that he received ineffective'assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator’s remaining claims are repetitive and/or unsupported. La.C.Cr.P. art. 930.2; La.C.Cr.P, art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless, he can show that one of the narrow exceptions, authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Johnson, C.J., n.s.


author:
McDonald, j.
      PETTIGREW, J.,

text:
    NESTLE HOLDINGS v. LAKE VIEW REGIONAL MEDICAL CENTER
    2016 CA 1669
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 14, 2017
    Rehearing Denied August 4, 2017

      Denis Paul Juge, Christopher Whelen Metairie, Louisiana, Attorneys for Plaintiff/Appellant, Nestle Holdings
    Helen Hsu, Houston, Texas, Attorney for DefendanVAppellee, Lakeview Regional Medical Center
    BEFORE: PETTIGREW, MCDONALD, and PENZATO, JJ.
   McDonald, j.

LThis appeal involves an employer seeking review of an Office of Workers’ Compensation (OWC) judgment that granted a health care provider’s exception raising the objection of prematurity and an exception raising the objection of no cause of action. After a thorough review, we affirm the OWC judgment granting the objection of prematurity and pretermit discussion of the exception of no cause of action.

FACTS AND PROCEDURAL HISTORY

Michael J. Sliker, an employee of Nestle Holdings, was injured in the course and scope of his job, and on September 29, 2015, Mr. Sliker had outpatient umbilical hernia surgery at Lakeview Regional Medical Center (LRMC). On October 3, 2015,' LRMC sent a bill to Nestle Holdings for $70,707.27 for the procedure. By letter dated November 25, 2015, Sedgwick CMS, Inc. (the third party administrator for Nestle Holdings) sent payment of $7,540.87. to LRMC, along with a letter stating that “[n]ot having sufficient information to determine the reasonableness of the charges, the third party administrator has issued the enclosed payment representing its determination of a reasonable reimbursement for the services rendered by your facility. This payment represents the calculation of 90% of the average charges for this procedure by hospitals in this region.”

On December 23, 2015, Nestle Holdings filed a disputed claim for compensation with the OWC, controverting the bill from LRMC. Nestle Holdings requested itemization for LRMC’s charges and invoices for all supplies, and further demanded reimbursement for overpayment of its bill.

LRMC answered the claim, denying the allegations, and specifically denying that plaintiff overpaid the medical bill for Mr. Sliker and was entitled to any reimbursement. LRMC also filed exceptions raising the objections of no cause of action and prematurity. LRMC maintained that the claim failed to state a valid | ¡¡cause of action because the law did not extend a remedy to recover medical payments already made to a workers’ compensation payor under the factual allegations of the claim. LRMC also maintained that the matter was not ripe for judicial review because defendant had not filed suit for 90 percent outpatient reimbursement pursuant to Louisiana Administrative Code Title 40, pt. I, § 2507, and had not made an issue regarding the insufficiency of plaintiffs payment.

The matter proceeded to a hearing before the OWC on June 24, 2016, and afterward the OWC took the matter under advisement. Thereafter, the OWC ruled in favor of LRMC and against Nestle Holdings, granting LRMC’s exceptions raising the objections of prematurity and no cause of action, and dismissing the claim. Judgment was signed on August 25, 2016. Nestle Holdings appealed that judgment.

Nestle Holdings makes the following assignments of error.

1. The [Louisiana Workers’ Compensation Act] LWCA requires that the medical charges providers submit to employers be “reasonable,” which this court has defined as “what is customary in a community for similar operations involving similar preoperative and post-operative procedures and complications.” When a dispute arises between a provider and payor regarding medical charges, including the reasonableness of those charges, the LWCA gives either party the right to file a petition with the OWC to have the dispute resolved. The court below, therefore, erred as a matter of law by finding that [Nestle Holdings’] petition did not state a cause of action when it expressly challenged the reasonableness of [LRMC’s] charges.
2. The LWCA permits a payor to file a petition against any party, other than an injured employee, for any dispute arising out of the Act. [Nestle Holdings] filed a petition against LRMC challenging the reasonableness of the charges it submitted for payment. The court below, therefore, erred by finding that [Nestle Holdings’] petition was premature.

RTHE REVISED STATUTES

Louisiana Revised Statutes 23:1314 provides:

A.The presentation and filing of the petition under R.S. 23:1310.3 shall be premature unless it is alleged in the petition that:
(1) The employee or dependent is not being or has not been paid, and the employer has refused to pay, the maximum percentage of wages to which the petitioner is entitled under this Chapter; or
(2) The employee has not been furnished the proper medical attention, or the employer or insurer has not paid for medical attention furnished; or
(3) The employee has not been furnished copies of the reports of examination made by the employer’s medical practitioners after written request therefor has been made under this Chapter; or
(4) The employer or insurer has not paid penalties or attorney’s fees to which the employee or his dependent is entitled.
B. The petition shall be dismissed when the allegations in Subsection (A) of this Section are denied by the employer and are shown at a time fixed by the workers’ compensation judge to be without reasonable cause or foundation in fact.
C. The workers’ compensation judge shall determine whether the petition is premature and must be dismissed before proceeding with the hearing of the other issues involved with the claim.
D. Disputes over medical treatment pursuant to the medical treatment schedule shall be premature unless a decision of the medical director has been obtained in accordance with R.S. 23:1203.1(J).
E. (1) Notwithstanding any other provision of this Section, the employer or payor shall be permitted to file a disputed claim against an employee, his dependent, or beneficiary only when the employer or payor alleges the employee, ' his dependent, or beneficiary has committed fraud as provided in R.S. 23:1208 which caused the employer or payor to pay a benefit which was not due- to the employee, his dependent, or beneficiary; or when the employer or payor is an .aggrieved party appealing a decision of the medical director pursuant to R.S. 23:1208.1®.
(2) Notwithstanding any other provision of this Section, the employer or payor shall be permitted to file a disputed claim against a person or entity other than an injured employee, his dependent, or beneficiary concerning any other dispute arising under this Chapter.

^DISCUSSION

ASSIGNMENT OP ERROR NO. 2—PREMATURITY

The manifest error standard of review applies to a judgment sustaining a dilatory exception of prematurity. Pinegar v. Harris, 2008-1112 (La. App. 1 Cir. 6/12/09), 20 So.3d 1081, 1087-88; Tresch v. Kilgore, 2003-0035 (La. App. 1 Cir. 11/7/03), 868 So.2d 91, 95-96.

Louisiana Code of Civil Procedure article 926(A)(1) provides for the dilatory exception raising the objection of prematurity. The exception raising the objection-of prematurity may be utilized in cases where the applicable law or contract has provided a procedure for a claimant to seek- administrative relief before resorting to judicial action. In the dilatory exception raising the objection of prematurity, the exceptor bears the initial burden of showing that an administrative remedy or procedure applies, by reason of which the lawsuit is premature. Once the existence of an administrative remedy is established, the burden then shifts to the plaintiff to show that the specific administrative remedy or procedure has been exhausted. Dutrey v. Plaquemine Manor Nursing Home, 2012-1295 (La. App. 1 Cir. 6/17/13), 205 So.3d 934, 941.

The issue of prematurity raised in this case has been addressed by this court in the case of Southern Framers of LA, LLC v. Doctors Hospital of Slidell, 2015-1878 (La. App. 1 Cir. 8/31/16), 202 So.3d 1135. In that case, an employee of Southern Framers was injured in the course and scope of his employment and thereafter had outpatient rotator cuff surgery at Doctor’s Hospital of Slidell. Doctor’s Hospital submitted a bill to Southern Framers’ third-party administrator for $33,133.41. The third-party administrator remitted $8,887.80 to Doctor’s Hospital with a statement that the amount represented a reasonable reimbursement for the services. In accordance with Louisiana Administrative Code Title 40, pt. I, |fi§ 5149, Doctor’s Hospital filed for administrative review of the alleged underpayment. Instead of responding in the administrative review filed by Doctor’s Hospital, Southern Framers and the third-party administrator collectively filed a disputed claim for compensation directly with the OWC, alleging that the unpaid portion of the bill was unreasonable, and demanding reimbursement for overpayment of the bill in the payment already made. In response, Doctor’s Hospital filed an answer to the disputed claim for compensation, along with exceptions raising the objections of prematurity, nonconformity of the petition, vagueness or ambiguity, no cause of action, and no right of action. Southern Framers, 202 So.3d at 1136.

After a hearing, the workers’ compensation judge ruled that the action was premature, and that the other exceptions were moot. Southern Framers appealed |7that decision, and on appeal this court affirmed the OWC. Southern Framers, 202 So.3d at 1136-37. This court found:

In reviewing this matter, we recognize that Southern Framers as payor has no independent entitlement to seek administrative review. The Hospital, however, has such a right and has opted to exercise it. Accordingly, Southern Framers’ right to judicial review regarding payments is premature until exhaustion of the administrative procedure. The Hospital has invoked its right to utilize the required process to determine the adequacy of Southern Framer’s payment, and it would thwart the purpose of that process if Southern Framers could proceed with its action prior to completion of administrative review. Also, resolution of the claims in the administrative proceedings could potentially resolve all pending issues between the parties, including Southern Framers’ claims. Therefore, we cannot conclude that the trial court erred in granting the Hospital’s exception raising the objection of prematurity.

Southern Framers of Louisiana, LLC, 202 So.3d at 1138 (footnotes omitted).

As explained by this court in Southern Framers, the payor, in this case Nestle Holdings, has no independent entitlement to seek administrative review. LRMC has a right to seek administrative review, which it has not exercised. Thus, we find no manifest error in the OWC judgment granting LRMC’s exception raising the objection of prematurity.

For the foregoing reasons, the OWC’s August 26, 2016 judgment granting LRMC’s exception raising the objection of prematurity is affirmed. Costs are assessed against Nestle Holdings.

AFFIRMED.

Pettigrew, J. Dissents and assigns, reasons.

PETTIGREW, J.,

DISSENTS, AND ASSIGNS REASONS.

hi must respectfully dissent from the majority for the following reasons.

I do not agree with the majority’s reliance on Southern Framers because this case is distinguishable from that case in the significant fact upon which that holding was based: in Framers, the hospital (like LRMC)—the party with the authority to seek administrative review—had done just that, thus, rendering the claim with OWC premature. As stated by the majority, in our case, LRMC, the party with the authority to seek administrative review, did not seek administrative review.

The timeline in this matter is as follows:

On September 29, 2015, LRMC provided an outpatient umbilical hernia surgery to the employee.

On October 3, 2015, LRMC sends bill to Nestle Holdings for $70,707.27.

On November 25, 2015, Sedgwick CMS, Inc. (third party administrator for Nestle Holdings) sent $7,540.87 along with letter disputing balance of bill to LRMC.

On December 23, 2015, Nestle Holdings filed a disputed claim controverting bill from LRMC.

The hearing on the exceptions filed by LRMC was heard by the OWC hearing officer on June 24, 2016. LRMC argued prematurity based upon its authority and right to file for administrative review pursuant to Louisiana Administrative Code Title 40, Part I, § 5149. That provision provides certain delays within which the healthcare provider may initiate the administrative review. At the time Nestle Holdings filed its disputed claim on December 23, 2015, the deadlines for said administrative review had not lapsed, and this claim was, and I concede, premature at that time. However, by |2June 24, 2016, the date of the OWC hearing, the deadlines for LRMC to file for administrative review had lapsed. I would therefore have denied LRMC’s exception of prematurity. I also believe the majority should address the exception of no cause of action.

      . The Louisiana Administrative Code Title 40, pt. I, § 2507 provides in part:
      A. Outpatient hospital and ambulatory surgery services will be reimbursed at covered charges less a 10 percent discount.
      The formula for calculating payment amount is:
      (Billed Charges) - (Noncovered Charges) = Covered Charges x .90 = Payment Amount

      . The Louisiana Administrative Code, Title 40, pt. I, § 5149 provides in part:
      A. When, after examination of the EOMB, a health care provider is dissatisfied with a carrier's payment of a bill for medical services, a reconsideration may be requested by the provider.
      1. A provider must make a written request for reconsideration within 60 days from receipt of the EOMB, accompanied by a copy of the bill in question, the carrier's EOMB and any supporting documentation to substantiate the medical necessity of the service and the diagnosis provided.
      2, The carrier must* process a reconsideration within 60 days of receipt.
      a. The carrier must review and re-evaluate the original bill and accompanying documentation using its own medical consultant if necessary.
      b. The carrier must notify the provider • within 60 days of the- results of the reconsideration, explain the reason(s) for their decision and cite the specific policy upon which their final adjustment was made.
      B, The provider may request the Office of Workers' Compensation Administration, Medical Services Section, to resolve the dispute if the result of the carrier’s reconsideration remains unsatisfactory.
      C. The Office of Workers’ Compensation Administration’s Medical Services Section will resolve disputes between a provider and carrier which involve the interpretation of the reimbursement policies and allowable reimbursement contained in the applicable reimbursement manual.
      1. A written request for the resolution of a disputed reimbursement claim must be submitted to the Office of Workers’ Compensation Administration within 60 days of the carrier's reconsideration or 90 days from the provider’s requested date when no response is received.

      . Based on this finding, we pretermit discussion of the OWC’s granting of LRMC’s exception raising the objection of no cause of action.


author: CRAIN, J.

text:
    Eurie MARIE v. ALLSTATE INSURANCE COMPANY and Burleigh J. Ruiz
    NO. 2016 CA 1643
    Court of Appeal of Louisiana, First Circuit.
    JUNE 14, 2017

      Matthew D. Hemmer, Adam A. Bosso, New Orleans, Louisiana, Attorneys for Plaintiff/Appellant, Eurie Marie
    James L. Donovan Jr., Meri M. Hartley, Metairie, Louisiana, Attorneys for Defendants/Appellees, Allstate Insurance Company and Burleigh J. Ruiz
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|gThe plaintiff appeals a judgment dismissing his claims after a jury found he was not injured in an automobile accident. We affirm.

FACTS AND PROCEDURAL HISTORY

A vehicle operated by Burleigh Ruiz backed out of a parking space and hit a vehicle occupied by the plaintiff, Eurie Marie. Ruiz said he was going slowly and the impact “was so little, I didn’t hardly feel it.” In contrast, Marie said Ruiz was traveling about twenty to thirty miles per hour at the time of impact. Marie told Ruiz he was not hurt, but added he may need medical treatment in two to three weeks because his “health is not that good.” Marie’s extensive medical history includes multiple cervical surgeries stemming from a fall about fourteen years before the automobile accident, severe diabetes and related neuropathy in his lower extremities, as well as low back pain. At the time of this automobile accident, Marie had been disabled for eight years. He most recently sought treatment for neck pain about five months before the automobile accident.

Three weeks after the accident, Marie went to the emergency room at Terre-bonne General Hospital complaining of pain in his neck going down to his left knee. He reported the automobile accident and stated the symptoms began about two weeks prior to the emergency room visit. About two weeks later, .Marie treated with a chiropractor for a list of complaints, including neck, mid back, low back, and left knee pain. According to Marie, he “experienced immediate” neck and back pain in this accident that was significantly more severe than his pre-accident .pain,-specifying that the pain levels for his neck arid back before the accident were “5” and “4,” respectively, but both increased after the accident to “10.”

IsMarie was eventually examined by Dr. Christopher Cenac, an orthopedic surgeon who had performed his two previous.neck surgeries. Marie complained of low back and left knee pain, which he claimed started after this accident, MRI studies revealed a medial meniscus tear in his knee and degenerative disc disease in his low back. After conservative treatment for the low back pain was unsuccessful, Dr. Cenac recommended a laminectomy. For the torn meniscus, Dr. Cenac referred Marie to Dr. Henry Lawrence Haydel, also an orthopedic surgeon, who recorhmended arthroscopic surgery to repair the tear. Neither of these surgical procedures had been performed at the time of the trial.

Marie sued Ruiz and his liability insurer, Allstate Insurance Company, seeking, recovery for injuries to his neck, back, and left knee. The parties stipulated that Ruiz caused the subject accident. The remaining issues, including whether the accident caused any injuries to Marie, proceeded to a jury trial; Marie was the only witness to testify in person. During direct examination, he offered little testimony to establish the cause of his injuries, saying only that his knees struck the dashboard during-the accident. When asked why he did not go to a doctor sooner, Marie replied, “I didn’t feel like nothing was wrong with me.” During cross-examination, Marie said he first noticed swelling in his knee about two weeks after this accident, when he fell while cutting grass.

Marie conceded multiple.inconsistencies between the medical records and his earlier deposition testimony. In his deposition, he denied problems with his low back prior to the automobile accident; however, his medical records revealed multiple treatments at a pain management clinic for chronic low back pain during the two years preceding the accident. While Marie- acknowledged his pre-existing back pain to his chiropractor, he did not mention it to Dr. Cenac, Marie denied any history of falls,- but his medical records revealed treatment for frequent falls before |4the automobile accident. Marie did not disclose any falls to either Dr. Haydel or Dr. Ce-nac, including one that occurred after the automobile accident.

Through video depositions, the jury heard medical testimony from Dr. Cenac and Dr. Haydel, as well as from Dr. Andrew Todd, an orthopedic surgeon retained by the defendants to perform an independent medical examination; The physicians generally agreed that Marie suffered injuries in the automobile accident, including • the torn meniscus, but each conditioned his opinion, particularly as to causation, on the accuracy of the history provided by Marie regarding the onset of-his symptoms and the absence of any other accidents. When presented with evidence of Marie’s pre-accident treatment for back pain, Dr. Ce-nac said Marie “wasn’t forthright” about the treatment and the failure to disclose it “discredits his history.” Both Dr. Haydel and Dr. Cenac, who were unaware of Marie’s post-accident fall, testified that a fall can cause the type of knee injury he suffered.

The jury rendered a verdict for the defendants, finding Marie did not suffer any injury caused by the automobile accident. The trial court signed a judgment in conformity with the jury’s verdict and dismissed the claim with prejudice. Marie appeals, assigning as error (1) the trial court’s failure to instruct the jury on the “Housley” causation presumption, (2) the jury’s finding of no causation, and (3) the jury’s failure to award damages.

DISCUSSION

Because this case ultimately turns on the jury’s assessment of Marie’s credibility, we first address the assignments of error wherein Marie contends the jury was manifestly erroneous in finding that he was not injured in the accident and in failing to award general or special damages. In a personal injury suit, the plaintiff must prove, by a preponderance of the evidence, both the existence of the injuries and a causal connection between the injuries and the accident. See Richardson v. Bridgefield Casualty Insurance Company, 14-1587 (La. App. 1 Cir. 8/10/15), 181 So.3d 61, 64; Kelley v. General Insurance Company of America, 14-0180 (La. App. 1 Cir. 12/23/14), 168 So.3d 528, 543, writs denied, 15-0157, 15-0165 (La. 4/10/15), 163 So.3d 814, 816. A tortfeasor is liable only for damages caused by his negligent act, not damages caused by separate, independent, or intervening causes. The plaintiffs burden includes proving that his injuries were not the result of separate, independent, and intervening causes. Richardson, 181 So.3d at 64; Kelley, 168 So.3d at 543-44.

A jury’s causation determination is a factual finding that should not be reversed on appeal absent manifest error. See Detraz v. Lee, 05-1263 (La. 1/17/07), 950 So.2d 557, 561. Under the manifest error standard, the appellate court does not decide whether the jury was right or wrong; rather it is required to consider the entire record to determine whether a reasonable factual basis exists for the finding, and whether the finding is manifestly erroneous or clearly wrong. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592 (La. 12/8/15), 193 So.3d 1110, 1116. Reasonable persons frequently can and do disagree regarding causation in particular cases. But where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Hayes, 193 So.3d at 1116. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the jury’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

According to Marie, the “uncontro-verted expert testimony” of the treating physicians and the defense’s independent medical examination expert establishes |fihe injured his knee and aggravated his back in this accident. However, all of those medical expert opinions were premised on the accuracy of Marie’s history.

The weight afforded a treating physician’s testimony is largely dependent upon the facts upon which his opinion is based. Edwards v. State Farm Mutual Automobile Insurance Company, 10-2216, 2011 WL 2617384 (La. App. 1 Cir. 5/6/11); Wells v. Allstate Insurance Company, 510 So.2d 763, 768 (La. App. 1 Cir.), writ denied, 514 So.2d 463 (La. 1987). The plaintiffs credibility is especially significant when a physician must relate a medical condition to an accident based on the plaintiffs history. See Peters v. Harmsen, 03-1296 (La. App. 1 Cir. 4/2/04), 879 So.2d 157, 162. A plaintiffs lack of credibility on factual issues can serve to diminish the veracity of his complaints to a physician. Meneses v. IFCO Systems, Inc., 04-1686 (La. App. 1 Cir. 9/23/05), 923 So.2d 111, 116-17; Peters, 879 So.2d at 162. Thus, in many cases the credibility of the history given by the plaintiff to his physicians becomes as important as the medical opinions based on that history. Meneses, 923 So.2d at 116-17.

Marie’s credibility was attacked numerous times at trial with inconsistencies in his statements, conflicts between his testimony and testimony of other witnesses, and material omissions in the history he provided to his treating physicians. The conflicts began with the description of the severity of the impact from the accident. Ruiz said he was slowly backing out of a parking spot and had just taken his foot off the brake to prepare to go forward, when he felt a “little” jolt. The impact damaged a taillight, which cost $87 to repair, and scuffed the paint on Ruiz’s vehicle. In contrast, Marie said Ruiz was traveling twenty to thirty miles per hour in reverse at the time of impact, which “slung [Marie’s] body to the left” and caused his knees to hit the dashboard.

17After reporting no injury at the scene, but warning of the possibility of needing treatment in the next two to three weeks, Marie reported to an emergency room three weeks after the accident, complaining of neck pain going down to his knee, which he said began about one week after the accident. When he saw a chiropractor two weeks later, Marie said he experienced an immediate increase in his pre-existing neck and lower back pain after this accident. Marie later failed to disclose any prior back pain to Dr. Cenac and instead claimed the pain started after the accident.

Marie never told his healthcare providers that he fell while mowing the grass. He testified as follows about the relationship between that fall and the onset of his knee pain:

A. I went to cut my grass, and that’s when all the problems started, pushing, just pushing on the lawn mower.
*⅜$
Q. So when did you notice swelling in your knee?
A. Okay. When I was cutting my grass and I fell and I didn’t know what was wrong, I was getting bad pains. And the pains was coming from above my hip, and it went down all the way to my feet. And I knew, I knew I have neuropathy.
So my neighbor, as a matter of fact, was outside barbecuing, and he came and picked me up and was going to bring me to the hospital, but I just went in. I stopped cutting the grass, and I went inside.
Q. You told me ... that three weeks after the accident, you started to cut your grass. Your leg started to hurt. It gave out, and you fell to the ground?
A. Right.
* * sH
Q. Help me out here. The reason you’re saying that Mr. Ruiz hurt you is because three weeks after the accident your leg was hurting and | ¿you were cutting the grass and you fell to the ground? That’s the reason you think he did it, that he’s responsible for your complaints?
A. Well, that’s what happened to me. When my left leg, it’s like my leg would have been asleep, and you try to stand up on it. You’re going to fall. Well, that’s, that’s how it felt.

Marie added that his knee became discolored about three weeks to a month and a half after the automobile accident, which also coincided with his fall. Both Dr, Cenac and Dr. Haydel, who were not told of this fall, testified that Marie’s knee injury could have resulted from a fall.

Marie’s failure to disclose his pre-acci-dent back pain and treatment to Dr. Cenac and Dr. Todd also cast doubt on his veracity. The medical records establish Marie was treated for chronic back pain prior to the accident and, when examined by his chiropractor, reported the level of his pre-accident back pain at “5.” However, during his visit with Dr. Todd, Marie said he had no back pain prior to the accident, but after the accident his pain level was a “10.” Marie likewise did not disclose any prior back pain to Dr. Cenac, who testified:

I did not know this record, and maybe Dr. Todd didn’t see this record, [but] the records bear out that he did have some of these complaints prior to the accident. [He did] not really discuss this with Dr. Todd or myself, and that discredits his history and misleads Dr. Todd and [my] opinion that he never had any problems.
He certainly had problems which would make sense if you’re a bad uncontrolled diabetic. You should have problems in your legs because most people do. How do I know that’s true? The neuropathy in his report confirms that. But he didn’t—he wasn’t forthright in that for his complaints to Dr, Todd or to me.
* * *
So unfortunately, I would have to say that I can’t take what he’s saying about [the automobile] accident at face value because he had complaints and was seeing a pain doctor before that.

Marie’s credibility was the critical issue at the trial. It is apparent from the record that the jury rejected his testimony. Marie’s credibility affected not only his testimony, but also the medical opinions offered regarding the causal relationship | ^between the accident and the alleged injuries. See Richardson, 181 So.3d at 68; Meneses, 923 So.2d at 116-17; Peters, 879 So.2d at 162. The record reasonably supports the jury’s implicit finding that Marie suffered no increase in his back pain after this accident, and his knee injury resulted from a fall several weeks after this accident. Thus, the jury’s finding of no causation is not manifestly erroneous or clearly wrong. See Hayes, 193 So.3d at 1116; Edwards, 2011 WL 2617384 at p. 3. Because the jury found no causation, its failure to award damages to Marie is not manifestly erroneous or clearly wrong. The assignments of error directed at these findings are without merit.

In his remaining assignment of error, Marie argues the trial court abused its discretion by failing to instruct the jury about the “Housley” causation presumption. In Housley v. Cerise, 579 So.2d 973, 980 (La. 1991), the supreme court recognized a plaintiffs disability is presumed to be caused by an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided the medical evidence shows a reasonable possibility of causal connection between the accident and the disabling condition. See also Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La. 1977). The presumption is rebuttable. Cooper v. United Southern Assurance Co., 97-0250 (La. App. 1 Cir. 9/9/98), 718 So.2d 1029, 1041.

Louisiana Code of Civil Procedure article 1792B.requires the trial court to instruct jurors on the law applicable to the cause submitted to them. The trial court is responsible for reducing the possibility of confusing the jury and may- exercise the right to decide what law is applicable and what law is inappropriate. Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So.2d 798, 804. Adequate jury instructions fairly and reasonably point out the issues and provide correct I mprinciples of law for the jury to apply to those issues. Adams, 983 So.2d at 804. The trial court is under no obligation’to give any specific jury instructions submitted by either party; the trial court must, however, correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error. Adams, 983 So.2d at 804.

Trial courts are given broad discretion in formulating jury instructions. Adams, 983 So.2d at 804. Furthermore, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Thus, on appellate review of a jury trial the mere discovery of an error in the trial court’s instructions does riot justify the appellate court’ conductirig the equivalent of a trial de novo, without first méasuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case. Adams, 983 So.2d at 805.

Marie argues the failure to give the Housley instruction was especially prejudicial “because much of his trial presentation focused on his good state of health prior to the collision,” and every treating physician “testified that there were no preexisting issues.” Alternatively, Marie focuses on his knee injury and contends he had no prior knee problems, thus -the trial court should have given the Housley instruction for that specific injury.

Marie’s claim of good health prior to the accident cannot be reconciled with the record. Before the accident, he underwent multiple neck surgeries, was disabled for eight years, was treated for chronic neck and low back pain within the two years preceding the accident, had a history of frequent falls, and was a severe | n diabetic with neuropathy in his legs, which, according to the medical evidence, can cause burning and throbbing. Dr. Cenac described Marie as “not healthy.”

While the medical records do not reflect prior knee pain, Marie’s overall poor physical condition makes it difficult to characterize him as a “person in good health” before the accident, the first component of Housley. In any event, wé find that ány error in failing to give the requested instruction did not preclude the jury from reaching a verdict based on the law and facts. See Adams, 983 So.2d at 805, Marie had ample evidence to establish causation without the benefit of any presumption. All three physicians, including the defense’s independent medical examination expert, opined the accident caused Marie’s back pain' and knee injury if the history he provided was accurate. Thus, a causation finding depended entirely on Marie’s credibility, which was repeatedly and effectively impeached, creating considerable doubt as to the veracity of his testimony and, equally important, the history he provided to his treating physicians. While Marie complains about the omission- of a-jury instruction, the record' establishes-that the jury’s conclusion the accident did not cause Marie’s injuries was due to. Marie’s lack of credibility, not the lack of a jury instruction. This assignment of error is without merit.

CONCLUSION

The trial court’s judgment rendered in conformity with the jury’s verdict and dismissing the plaintiffs claims is affirmed. All costs of this appeal are assessed to Eurie Marie.

AFFIRMED.


text:
    Carey R. HOLLIDAY v. STATE of Louisiana, THROUGH the LOUISIANA WORKFORCE COMMISSION, OFFICE OF WORKER’S COMPENSATION
    NO. 2017 CA 0013
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 14, 2017
    Rehearing Denied July 10, 2017

      Gregory J. Miller, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellant, Carey R. Holliday
    Peter G. Wright, John W. Williams, Jr., Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Louisiana Workforce Commission
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

12Carey R. Holliday appeals the district court’s judgment sustaining an exception to lack of subject matter jurisdiction and dismissing his suit against the State of Louisiana, Office of Workers’ Compensation, through the Louisiana Workforce Commission (LWC). Finding the district court has jurisdiction to decide this matter, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Holliday filed this suit for unpaid wages, alleging that on December 2, 2015, he separated from his employment with LWC as an unclassified district worker’s compensation judge. He claimed he was owed, but not paid, $5,868.34 in “premium pay,” paid to district judges for the performance of administrative duties. Holliday pled that LWC failed to respond to his demand for payment, leading him to file suit for the premium pay, penalties and attorney fees pursuant to the Louisiana Wage Payment Act.

In response, LWC filed an exception of lack of subject matter jurisdiction, arguing the Civil Service Commission did not authorize premium pay for the time period at issue for Holliday’s position, and the payments Holliday claimed were not due. LWC asserted that the approval of premium pay falls within the Louisiana State Civil Service Commission’s exclusive jurisdiction to regulate and administer the state’s classified service. LWC argued that the Louisiana Wage Payment Act could not be used to settle Holliday’s dispute with his employer over his entitlement to premium pay. Holliday countered that after leaving his employment, his only recourse was to file suit under the Louisiana Wage Payment Act, which is properly brought in district court.

The district court found this case to involve the interpretation of civil service rules and regulations as to whether Holli-day was owed premium pay, which jurisdiction is vested exclusively with the Commission. The district court found lathe jurisdictional question unaffected by the fact that Holliday was no longer employed with LWC. The district court sustained the exception of lack of subject matter jurisdiction and dismissed Holliday’s suit. Holliday now appeals.

DISCUSSION

The exception of lack of subject matter jurisdiction challenges the court’s legal power and authority to adjudicate the cause before it. See La. Code Civ. Pro. art. 2; Bon Amis Investments, LLC v. Lapeyrouse, 15-1459 (La. App. 1 Cir. 5/5/16), 195 So.3d 514, 517 n.2. The Louisiana Constitution vests the district courts with original jurisdiction over all civil matters, except as otherwise authorized by the constitution. La. Const, art. V, § 16(A)(1). Exceptions to the general rule that district courts have original jurisdiction in all civil matters are limited to their express terms. See Broussard Physical Therapy v. Family Dollar Stores, Inc., 08-1013 (La. 12/2/08), 5 So.3d 812, 818. At issue here is whether Holliday’s claims are within the jurisdiction vested by the constitution in the Commission or the district courts.

The Louisiana Constitution grants legislative, executive, and judicial powers to the Commission. See La. Const. art. X, § 10(A)(1); La. Const. art. X, § 12(A); Hawkins v. State Through Department of Health and Hospitals, 613 So.2d 229, 232 (La. 1992). Section 10(A)(1)(a) defines the Commission’s executive and legislative powers:

Each commission is vested with broad and general rulemaking and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, .employment conditions, compensation and disbursements to employees, and other personnel -matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established....

USection 12(A) defines the Commission’s judicial power, which is expressly limited to removal and disciplinary cases. See Hawkins, 613 So.2d at 232. Jurisprudence considering the jurisdiction of the Commission has recognized that the Commission is not granted the authority of a court and is unable to render money judgments and enforce the payment thereof. See Hawkins, 613 So.2d at 234; Bennett v. Louisiana Wild Life and Fisheries Commission, 234 La. 678, 101 So.2d 199, 202 (1958).

LWC argues this is not a suit for a money judgment. LWC maintains that Holliday’s contention that he is owed premium pay requires review and analysis of Civil Service rules, which falls within the exclusive jurisdiction of the Commission. In support of its argument, LWC refers to Civil Service Rule 6.16, which allows the Commission to authorize premium pay, arguing it is the “exclusive right, duty and discretion” of the Commission, not the district court, to authorize such payments.

LWC is correct that authorizing premium pay for an employee falls within the Commission’s exclusive jurisdiction to regulate civil service employees’ compensation. See La. Const, art. X, § 10(A)(1)(a). However, Holliday does not.ask the district court to authorize premium pay. Rather, Holliday seeks a money judgment for wages (premium pay) he contends are owed as payment for the position he held. Notably, Holliday is no longer employed by LWC and seeks to recover the unpaid wages under the Louisiana Wage Payment Act. The Louisiana Supreme Court has held that the Wage Payment Act applies to both private and government employers. See Stafford v. City of Baton Rouge, 403 So.2d 733, 734 (La. 1981). Resolution of whether the claimed wages are, in fact, owed after a civil service employee separates from his employment does not encroach upon the constitutional power and authority granted to the Commission. See Hawkins, 613 So.2d at 234; see also Waller v. State, Dept. of Health & Hospitals, 11-643 (La. App. 3 Cir. 11/9/11), 79 So.3d 1085, 1089, writ denied, 11-2692 (La. 2/10/12), 80 So.3d 488 (finding no error in a prior writ action that rejected the argument that the exclusive jurisdiction over pay disputes is constitutionally vested in the Commission).

LWC’s reliance on Akins v. Housing Authority of New Orleans, 03-1086 (La. App. 4 Cir. 9/10/03), 856 So.2d. 1220, is misplaced. In Akins, current employees filed suit in district court to recover overtime wages, which they framed as a suit for a money judgment. The court determined that the petition did not seek only a money judgment, but also sought an accounting for past due wages and a declaration as to the employees’ future wages, both employment related matters within the Commission’s exclusive jurisdiction. Here, Holliday is no longer employed with LWC and seeks only a money judgment for amounts allegedly owed. Whether Hoi-liday is entitled to recover is a matter that the district court has the legal power and authority to adjudicate.

The district court erred in finding it lacked subject matter jurisdiction to resolve Holliday’s claims.

CONCLUSION

The judgment of the district court is reversed and this matter is remanded for further proceedings. Costs in the- amount of $564.50 are assessed to the- State of Louisiana, Office of Workers’ Compensation, through the Louisiana Workforce Commission. > ■

REVERSED AND REMANDED.

      . LWC additionally urged an exception of prematurity based upon Holliday's failure to exhaust his administrative remedies With the . .Commission, • citing Civil Service . Rule 13.10(c),, which authorizes appeals by any state classified employee adversely affected by a violation of a Civil Service Rule (other than a rule in Chapter 10). The district court found that it lacked subject matter jurisdiction and did not reach the issue of prematurity. Holli-day's appeal is limitéd to the district court’s judgment on the exception of-lack-of subject matter jurisdiction; therefore, the arguments regarding the exception of prematurity are not considered herein.


text:
    LOUISIANA ENVIRONMENTAL ACTION NETWORK, Concerned Citizens of Belle River, Hazel Cavalier, & Atchafalaya Basinkeeper v. James H. WELSH, in His Official Capacity as Commissioner of Conservation & Assistant Secretary of the Louisiana Department of Natural Resources
    NO. 2016 CA 0906
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 14, 2017
    Rehearing Denied July 19, 2017

      Elizabeth Livingston de Calderon, Adam Babich, New Orleans, Louisiana, Attorneys for Plaintiffs/Appellants, Louisiana Environmental Action, Network, Concerned Citizens of Belle River, Hazel Cavalier, and Atchafalya Basinkeeper
    Daniel D. Henry Jr., John W. Adams, Baton Rouge, Louisiana and Steven B. “Beaux” Jones, Assistant Attorney General, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees, State of Louisiana through the Office of Conservation and James H. Welsh, Commissioner of Conservation

      R. Charles Ellis, Hahnville, Louisiana, Attorney for Intervenor/Appellee, F.A.S. Environmental Services, LLC
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

12This is an appeal of the district court’s judgment upholding the Louisiana Commissioner of Conservation’s order approving an application for construction of a new transfer station for commercial oil and gas exploration and production (E & P) waste. While recognizing the Commissioner’s broad statutory authority to regulate, conserve and use the State’s oil and gas resources, we find that the subject permit is beyond the scope of what was requested and, therefore, was issued in violation of lawful procedure. We reverse the district court’s judgment, vacate the Commissioner’s order, and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

FAS Environmental Services, LLC applied to the Department of Natural Resources for a permit to construct and maintain a commercial E & P waste transfer station in St. Martin Parish. As proposed, the transfer station consisted of a truck unloading area and above ground tanks to receive and temporarily store E & P waste. The waste would be transported by pipeline to FAS’s existing disposal facility, then injected into FAS’s disposal wells. FAS represented that the new transfer station would take the place of the existing one and, because the new transfer station would be directly connected to the disposal site by pipeline, the need to barge the waste to the disposal site would be eliminated. The new transfer station would be located approximately one and one-half miles north of FAS’s existing transfer station.

The Office of Conservation conducted a public hearing and received public comments regarding the proposed transfer station. The Commissioner then issued Conservation Order No. ENV 2015-03 CFT, which approved FAS’s application and contained findings of fact and responses to the public comments. The Louisiana Environmental Action Network (an umbrella organization for environmental and citizen groups), Concerned Citizens of Belle River (a non-profit | sorganization dedicated to preserving and protecting the environment in and around the area of Belle River), Hazel Cavalier (an individual member of Concerned Citizens of Belle River and owner of property located near the approved transfer station), and the Atchafalaya Basinkeeper (a non-profit corporation committed to protecting and restoring the bayous, wetlands, and greater ecosystems within the Atchafalaya Basin) filed a suit for judicial review of the conservation order. The district court upheld the conservation order. This appeal followed.

STANDARD OF REVIEW

Any aggrieved person may appeal the Commissioner’s order to the district court. La. R.S. 30:12A. Judicial review is conducted by the court and is confined to the record. La. R.S. 30:12B(4). The district court may affirm the Commissioner’s order or remand the case for further proceedings. La. R.S. 30:12B(5). The district court may reverse or modify the order if substantial rights of an appellant have been prejudiced because the Commissioner’s findings, inferences, conclusions, or decisions are: in violation of constitutional or statutory provisions; in excess of statutory authority; made upon unlawful procedure; affected by other error of law; arbitrary or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. La. R.S. 80:12B(6).

The plaintiff has the burden of proof when challenging the Commissioner’s order. La. R.S. 30:12C(2). On questions of law, the reviewing court owes little or no deference to the Commissioner’s decision; however, the Commissioner’s findings of fact are reviewed under the manifest error standard. Davidson v. Welsh, 10-2213, p.3 (La. App. 1 Cir. 6/17/11), 2011 WL 2448226. Where the Commissioner has the opportunity to judge the credibility of witnesses by first-hand observation of their demeanor on the witness stand and the reviewing court |4does not, due regard must be given to the Commissioner’s credibility determinations. See La. R.S. 30:12B(5). Further, in reviewing the Commissioner’s conclusions and exercises of discretion, the reviewing court must apply the arbitrariness test, and the party challenging the Commissioner’s decision must make a clear showing that the administrative action was arbitrary and capricious. Gossen v. Welsh, 15-0852, p.3 (La. App. 1 Cir. 6/2/16), 2016 WL 3143952, writ denied, 16-1259 (La. 10/28/16), 203 So.3d 1054.

An aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal. See La. R.S. 30:12D. In reviewing the district court’s judgment, no deference is owed by the court of appeal to the 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. Davidson, 2011 WL 2448226 at p.4.

DISCUSSION

The appellants challenge the Commissioner’s order approving the transfer station on four grounds: 1) the Commissioner violated statutory law by failing to consider conflicts with St. Martin Parish’s master plan before approving the order that will move industrial activity into a residential area and will route heavy industrial truck traffic through a residential area and affect nearby recreational and tourism resources; -2) the Commissioner was arbitrary and capricious in approving the order when the record does not establish that the containment wall surrounding the storage tanks will withstand the velocity of the 100-year flood- as required by the Commissioner’s rules; 3) the Commissioner committed legal error in concluding that local zoning ordinances were preempted and therefore irrelevant to his decision; and 4) the Commissioner was arbitrary and capricious in approving the order, which authorized FAS to operate a second transfer station without requiring FAS to close the-first transfer station.

I/The Office of Conservation, in the Department of Natural Resources, exercises the functions of the state with respect to the regulation, conservation, and use of natural resources not specifically within the jurisdiction of other state departments or agencies, including conserving oil and gas resources and matters pertaining thereto; promoting and encouraging exploration, production, and refining efforts for oil, intrastate gas, and other hydrocarbons; controlling and allocating energy supplies and distribution; leasing, constructing and operating intrastate pipeline systems; implementing and enforcing any emergency gas shortage allocation plan and setting priorities; regulating the minimum sale price of intrastate natural gas, and managing ground water resources, all in accordance with applicable laws. La. R.S. 36:358C. The Commissioner of Conservation has jurisdiction and authority over all persons and property necessary to effectively enforce laws relating to conserving oil or gas, and has the authority to make, after notice and hearings provided by law, any reasonable rules, regulations, and orders necessary from time to time in the proper administration and enforcement of the. conservation laws. See La. R.S. 30:1; La. R.S. 30:4; Davidson, 2011 WL 2448226 at p.3. The Commissioner’s power to regulate the state’s oil and gas resources is an exercise of constitutionally protected police powers, which may not be abridged. See La. Const. Art. VI, § 9; St. Tammany Parish Government v. Welsh, 15-1152 (La. App. 1 Cir. 3/9/16), 199 So.3d 3, 8.

At the outset, we reiterate our holding in Vanguard Environmental, LLC v. Terrebonne Parish Consolidated Government, 12-1998, 2013 WL 4426508 (La. App. 1 Cir. 6/11/13), writ denied, 13-2165 (La. 11/22/13), 126 So.3d 490, that the legislature has vested the Commissioner with exclusive jurisdiction to regulate the disposal of any waste product into the subsurface by means of a disposal well, which includes siting disposal facilities. We further recognize that siting E & P | (¡transfer stations, such as the one at issue in this case, is within that exclusive jurisdiction. See La. R.S. 30:4.

As part of exercising this jurisdiction, the rules and procedures- promulgated by the Commissioner require anyone seeking a permit to construct and operate an E & P transfer station to file a permit application. La. Adhiin. Code 43:XIX:521. Here, FAS’s application sought permission to construct an E & P transfer station approximately one and one-half miles north of its existing transfer station. In the permit application and throughout these proceedings, FAS represented that the new transfer station would replace the existing one, resulting in the closure of the existing transfer station.

In its responses to IT questions, FAS candidly represented .its application should be considered in the context of the new proposed transfer station replacing the existing one, thereby eliminating the need to barge waste to the disposal site, and transitioning from the use of diesel power equipment by directly attaching to electrical utility lines. FAS suggested that relocating the transfer station and closing the existing transfer station would not have any significant net adverse impact on property values. FAS further represented that it did not expect ah increase in truck traffic because the disposal capacity was not increasing, rather, it whs seeking “approval for a relocation and improvement of an existing transfer station.”

In answering how it determined the proposed facility was needed, FAS said:

[T]he question really posed by FAS’s current application is whether there is a need for the proposed’ Relocated Transfer Station as described herein, which entails a new location upstream, a switch to |7the use of a direct pipeline transfer system in lieu of use of a “shuttle barge” and the transition of the overall FAS facility operation system to one powered by electric utility instead of on-site diesel engine generated power.

FAS further said:

Happily, FAS Management’s decision after its analysis of the need for the proposed facility changes resulted in the proposal embodied in this Application, which is characterized by a direct and positive correlation between improved economic efficiency and the reduction of adverse environmental impacts. It is an improvement over the current configuration, and it represents clearly justifiable changes in FAS operating procedures and technology that will result in increased efficiency, safety!,] and environmental protection. It is without a doubt a “win/win situation.”

Similarly, in conclusion, FAS asked that its application be granted because “the proposed Relocated Transfer Station Facility will result in a more efficient, quieter, safer!,] and less polluting facility.”

In the order approving FAS’s application, the Commissioner found FAS’s responses to the IT questions “acceptable in support of the application.” The Commissioner determined that “the environment, public health and safety will be protected and that potential impacts, if any, will be minimized.” In pleadings filed in the district court, FAS suggested the Commissioner’s statement indicated the Commissioner “obviously adopted as part of the rationale for his decision” FAS’s “thorough, thoughtful, and complete assessment of the environmental impacts of the proposed Relocated Transfer Station” contained in its responses to IT questions.

Despite the premise of FAS’s application being the closure of the existing transfer station and relocation of its operations, the Commissioner’s order does not restrict FAS from operating both transfer stations. In fact, by unconditionally approving FAS’s application to construct and operate the proposed new transfer station, the Commissioner’s order, while possibly unin-tentioned, results in FAS being permitted to operate two facilities.

|ROn appeal, the Commissioner characterizes the appellants’' argument that the permit could only be issued if the existing facility was ordered to be closed as “myopic,” contending the argument “ignores the fact that the Project (as permitted) will unquestionably reduce the risks of environmental impacts whether the existing facility is closed or not.” The administrative record may contain support for the conclusion that the new facility will reduce the risk of environmental impacts as compared to the risks posed by the existing facility; but, it does not support the conclusion that operating both the new and old facilities close to each other will reduce the risks of environmental impacts associated with just operating one.

FAS only sought to construct and operate a new transfer station to replace its existing one. The environmental data and information provided by FAS is limited to the operation of one transfer station at the new location. Many of FAS’s arguments supporting its application were premised on the new transfer station being safer than the existing one, and that the new station would be environmentally advantageous, creating a “win/win situation.” The public was invited to comment on the application for one operating transfer station. Additional issues may have been raised by the public had they known of the possibility that the permit would allow two operating transfer stations.

The administrative record provides no rational basis for the decision to permit FAS to construct and operate both the new E & P waste transfer station and the one currently operating. We are mindful that our function is not to reweigh the evidence and substitute our judgment for the Commissioner’s and that the siting of such facilities falls within the Commissioner’s exclusive jurisdiction. See Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1152, 1159 (La. 1984); see also Vanguard Environmental, LLC, 2013 WL 4426508 at pp. 5-6. However, the Commissioner’s permit is beyond the scope of the application presented, and for which the necessary environmental data was supplied. 19Consequently, the appellants have clearly shown the Commissioner’s order is arbitrary and capricious. Cf. Bowers v. Firefighters’ Retirement System, 08-1268 (La. 3/17/09), 6 So.3d 173, 176 (recognizing that a decision is arbitrary and capricious if there is no rational basis for the action taken).

We note that in pleadings and arguments presented to the district court, FAS reiterated its intention to “replace” the existing transfer station with the new one. FAS also represented that by virtue of the Commissioner’s regulations, which require a certification of truth and accuracy as part of an application, it is legally obligated to close the existing transfer station if the new one is constructed. See La. Admin. Code 43:XIX.519.C.21. These arguments reinforce our conclusion that FAS applied for a permit to construct a new transfer station, to be singularly operated for the purpose of temporarily storing the E & P waste before it is disposed of at FAS’s disposal facility, and the application does not support the Commissioner’s order that can be construed to allow the operation of both transfer facilities.

CONCLUSION

Considering the foregoing, we reverse the judgment of the district court and vacate Conservation Order No. ENV 2015-03 CFT. This matter is remanded to the Louisiana Office of Conservation for reconsideration of this matter in light of this decision. Costs of this appeal in the amount of $6,064.50 are assessed to the State of Louisiana through the Office of Conservation.

DISTRICT COURT JUDGMENT REVERSED; CONSERVATION ORDER NO. ENV 2015-03 CFT VACATED; REMANDED TO THE LOUISIANA OFFICE OF CONSERVATION.

Holdridge J. concurs in Result.

      . “IT” questions are derived from, the issues identified by the Louisiana Supreme Court in Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1152, 1160 (La. 1984), sometimes referred to as the "IT Decision,” which are considered by administrative agencies in discharging their public trustee functions in awarding permits affecting environmental matters. See Matter of Dravo Basic Materials Co., Inc., 604 So.2d 630, 632, n.1 (La. App. 1 Cir. 1992); Blackett v. Louisiana Dept. of Environmental Quality, 506 So.2d 749, 753-54 (La. App. 1 Cir. 1987); see also Charles S. McCowan, Jr., The Evolution of Environmental Law in Louisiana, 52 La. L. Rev. 907, 921-22 (1992).

      . The appellants countered that the regulation upon which FAS relied for this argument applied to injection/disposal wells, not to transfer stations such as the one at issue herein. Resolution of this conflict is not required by our decision herein.

      . We pretermit discussion of the remaining issues raised by the appellants.