author: JAMES F. MCKAY III, GHIEF-JUDGE

text:
    Irma REGIS v. DEPARTMENT OF POLICE
    NO. 2016-CA-0821
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 24, 2017

      CHESTER THEODORE ALPAUGH III, CLAUDE A. SCHLESINGER, GUSTE BARNETT SCHLESINGER HENDERSON & ALPAUGH, L.L.P., 639 Loyola Avenue, Suite 2600, New Orleans, Louisiana 70118, COUNSEL FOR PLAINTIFF/APPELLANT
    ' ISAEA R. WILLIAMS, Assistant-City Attorney, ELIZABETH ROBINS, Assistant City Attorney, CHERRELL S. TAP-LIN, Senior Chief Deputy City Attorney, REBECCA H. DIETZ, City Attorney of New Orleans, 1300 Perdido Street, Suite 5E03, New Orleans, Louisiana 70112, COUNSEL FOR DEFENDANT/APPEL-LEE
    (Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Marion F. Edwards, Pro Tempore)
   JAMES F. MCKAY III, GHIEF-JUDGE

11 Sergeant Irma Regis (“Sgt. Regis”) seeks review of the decision of the Civil Service Commission (“CSC”), denying her appeal of the discipline imposed by the New Orleans Police Department (“NOPD”). For the reasons set forth below, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

• At the time of the actions that form the basis for the complaint, Sgt. Regis was employed by the NOPD as a police officer with permanent status. On March 21, 2011, Officer Lawrence Fortuna (“Officer'Fortu-na”) conducted a traffic stop that resulted in the arrest of the driver. Officer Fortuna maintains that the subject could not produce a driver’s license, so he was ordered out of the car. Upon exiting the vehicle, Officer Fortuna claims that the subject pushed him and ran from the scene. After a brief chase, Officer Fortuna brought the subject to the ground and handcuffed him. Officer Jamal Kendrick (“Officer Kendrick”) was also on the scene, and witnessed the incident.

Officer Fortuna brought the subject to the station, where he began preparing the gist of the incident. Because Officer Fortu-na was a relatively new officer, he enlisted the help of Sergeant Michael Stalbert (“Sgt. Stalbert”), Officer Kendrick, Land Officer Marsha Thompson (“Officer Thompson”). Initially, the gist included charges for firearm violations, resisting arrest, and battery on a police officer. The narrative of the gist stated that when the subject fled the scene, a brief struggle ensued. Officer Fortuna presented the gist to Sgt. Regis for her signature. However, according to Officer Fortuna, Sgt. Regis refused to sign the gist and instructed him to remove the battéry on a police officer charge and any mention of the struggle. Officer Fortuna complied, and Sgt. Regis signed the amended gist.

The following day, Officer Fortuna informed Sergeant Kristi Bagnéris (“Sgt. Bagneris”) that Sgt. Regis had instructed him to remove information from the gist. Sgt. Bagneris instructed Officer Fortuna to write a second report, and add back the charge relative to battery on a police officer. Officer Fortuna prepared the second gist, which included the battery on a police officer charge and a description of the physical. altercation between the subject and Officer Fortuna. Sgt. Bagneris signed the gist.

Sgt. Bagneris reported the incident to Lieutenant Aaron Blackwell (“Lt. Blackwell”), who conducted an., inquiry. Lt. Blackwell learned from his interview with Officer Fortuna that Officer Fortuna explained the details of the arrest to Sgt. Regis, but that she advised him not to charge the arrested subject with- battery because Officer Fortuna was a probationary officer (new officer) and would have to take a urine test if use. of force, was reported. Lt. Blackwell further determined that Sgt. Regis did not complete the paperwork that is required when force is used in connection with an arrest.

An investigation of Sgt. Regis’s actions followed, and a DI-1 Form (Initiation of a Formal Disciplinary Investigation) was issued on March 23, 2011, alleging the following rule violations:

hi. Rule 4: Performance of Duty; Paragraph 4: Neglect of Duty, Section C: Subparagraph 4; Failing to . make a written report when such is indicated.
2. .Rule 6: Official Information, Paragraph 2: False or inaccurate reports.
3. Rule 4: Performance of Duty; Paragraph 2: Instructions from an authoritative source. To wit; Chapter 1.3 “Resisting Arrest Report;” Paragraph 1, Reporting use of force, Sub-paragraph 1; A “Resisting Arrest Report” SHALL be prepared ....

Sergeant André LeBlanc, Jr. (“Sgt. Le-Blanc”), with the Public Integrity Bureau, was assigned to the investigation. Sgt, Le-Blanc- took statements from Sgt. Bagneris, Sgt. Stalbert, Officer Fortuna, Officer Kendrick, Officer Thompson, and Sgt. Re-gis.

Sgt. Bagneris related to Sgt. LeBlanc that- she believed Officer Fortuna had probable cause to arrest the subject for battery on a police officer because it was articulated that the subject put hands on Officer Fortuna, which was a battery. Sgt. Bagneris further stated that she believed Sgt. Regis used Officer Fortuna’s status as a probationary officer as a reason not to report it and to avoid preparing the additional paperwork required when use of force is involved in an-arrest. -

In- his -statement to Sgt.- LeBlanc, Sgt. Stalbert explained that he assisted Officer Fortuna in the preparation of the gist. He stated that Officer Fortuna advised him that the subject was being charged with battery of a police officer, resisting arrest, illegal carrying of a firearm and illegal carrying of a firearm by a convicted felon. Sgt. Stalbert believed that Officer Fortuna had the necessary elements to support those charges. He acknowledged' that the gist clearly stated that Officer Fortuna had been pushed by the subject.

Officer Fortuna related to Sgt. LeBlanc how the subject pushed him and began to flee, and how the subject fought him -during the take down. Officer Fortuna further explained that when he presented the gist (which included the Rbattery charge) to Sgt. Regis, she told-him he was not supposed to do that type of report. When asked why not, Sgt. Regis stated that she would have to do a use of force report and that if he left those charges in the gist, Officer Fortuna would have to take a urinalysis. Officer Fortuna further stated that Sgt. Regis instructed him to take out the charges for battery on an officer and resisting arrest by flight from an officer. She also instructed him to take out the detail of the gist wherein he stated that a brief struggle ensued between himself and the subject.

Officer Kendrick confirmed in his statement to Sgt. LeBlanc that he was present during the traffic- stop, and that he saw the subject strike Officer Fortuna in the chest and begin to run. He further stated that when Officer Fortuna caught up with the subject, a struggle ensued. Officer Kendrick explained that he started to assist Officer Fortuna in preparing the gist, but that Sgt. Regis instructed him to get back out on the street. When he left the station, it was his understanding that the subject was -going to be arrested for battery on an officer, resisting arrest by flight and the gun charges.

Officer Thompson stated that she arrived on the scene as the officers were securing the subject in the police car. At the station, she assisted Officer Fortuna with the charging and the content of the gist. Officer Thompson stated that prior to leaving the station, the components explaining how Officer Fortuna was battered were on the gist sheet. She further stated that the battery of Officer Fortuna was in the narrative of the incident report and the details were consistent with the details in the original gist, which she assisted in preparing.

Sgt. Regis provided a statement to Sgt. LeBlanc on June 3, 2011. She stated that when Officer Fortuna returned to the station after the arrest,' she noticed green stains on the back of his shirt. She asked him what happened, and he told her that | she had the guy by the car and the guy took off running. Officer Fortuna ran behind him. He caught the subject, they fell to the ground, and the subject was immediately handcuffed.

Sgt. Regis stated that when she read the initial gist, she asked Officer Fortuna if the subject committed a battery on him, to which he replied, no. She further stated that she only reviewed the gist sheet, not the incident report. Sgt. Regis maintained that there were no details of a battexy contained in the gist. This fact is disputed by Officer Fortuna, Sgt. Stalbert, and Officer Thompson and later contradicted by Sgt. Regis’s own testimony in her appeal to the CSC. In her statement to Sgt. Le-Blanc, she claims that she only instructed Officer Fortuna to remove the battery charge.

Sgt. Regis denied telling Officer Fortu-na that she should not complete a use of force report because he was a probationary officer. Sgt. Regis explained that because Officer Fortuna did not express that a battery had taken place, she told him that he would have to take that out of the gist. Otherwise, she told him, “you have to go get yo ‘P’ test, we’ll do a first report of injury and that’s it.”

Sgt. Regis stated that she did not speak with Officer Kendrick about the incident, and denied telling Officer Kendrick to go back out on the street. Sgt. Regis suggested that Officer Fortuna may have been coerced into providing information against her, although she did not elaborate.

Following the investigation, Sgt. Regis was demoted and ultimately terminated by letter dated January 30, 2012. The disciplinary letter sets forth the following, in pertinent part:

Regarding the violation of Rule 4: Performance of Duty, paragraph 2—In-structions from an Authoritative Source to wit: Chapter 1.3 Resisting Arrest Report, paragraph 1, sub-paragraph 1 Lwas recommended a Duplicate. Deputy Superintendent Albert further recommended an additional sustained violation of Rule 4: Performance of Duty, paragraph 4, Neglect of Duty, Section C Subparagraph 4—Failure to make a written repoi’t when such is indicated (Resting Arrest Report), which is the more applicable violation which should be classified as SUSTAINED.
Sergeant Regis as a police supervisor had the duty and responsibility to perform certain tasks when she was informed that force was used towards the officer and on the arrested subject by the officer. Sei-geant Regis neglected to properly supervise Officer Fortuna and failed to complete the necessary paperwork required when force is used. Instead she advised, and instructed Officer Fortuna to remove the mention of use of force and battexy of a police officer from his gist of the arrest. This is a violation of Rule 4: Performance of Duty, paragraph 4, Neglect of Duty, Section C Subparagraph 4—Failing to make a •written report when such is indicated (Resisting Arrest Report).
As to the violation of Rule 6: Official Information, paragraph 2—False or inaccurate reports which was sustained in the original investigation. Deputy Superintendent Albert concurred with the investigator’s recommended disposition of Rule 6: Official Information, paragraph 2—False or inaccurate reports.
Sergeant Regis violated this rule when Officer Fortuna provided her the details of an arrest and also presented her with the gist for the arrest of the subject he was involved in a use of force incident with. Sergeant Regis instructed him to remove the details regarding the use of force incident causing or allowing a false or inaccurate report of an official nature to be recorded, or intentionally withholding material from such report, which is a violation of Rule 6: Official Information, paragraph 2—False or inaccurate reports.
The allegation of Rule 2: Moral Conduct, paragraph 3, Honesty and Truthfulness were found NOT SUSTAINED. However, Sergeant Regis was additionally SUSTAINED for Rule 2: Moral Conduct, paragraph 3, Honesty and Truthfulness. Because she stated that she only told Officer Fortuna to remove the charge of battery on a Police Officer from the gist. Sergeant Regis said she did this because the elements written in the gist did not justify the charge. The investigation revealed that Officer For-tuna wrote the justification in the gist before Sergeant Regis reviewed the gist. After reviewing the gist Sergeant Regis instructed him to take facts regarding use of force and battery on a police officer out of the police report. Sergeant Regis stated that the current gist in the report was the only gist she read. The only part of the gist she made the officer change was removing the charge of battery on a police officer, because she stated the facts of the gist did not support the charge. This fact is refuted by Officer 17Fortuna and was also observed in the gist by Sergeant Michael Stalbert and Officer Marcia Thompson. As such, you were not honest and truthful which is a violation of Rule 2: Moral Conduct, paragraph 3, Honesty and Truthfulness.
⅜ ⅜ # ⅜
Therefore, in light of the above investigation, a review of any disciplinary record and due to the nature of your violations, you are hereby notified that for the sustained violation of Rule 4: Performance of Duty, paragraph 4, Neglect of Duty, Section C, subparagraph 4— Failing to make a written report when such is indicated “Resisting Arrest Report” (Second Offense), you are demoted to your last Civil Service Status. For sustained violation of Rule -2: Moral Conduct, paragraph 3, Honesty and Truthfulness, you are dismissed and for the sustained violation of Rule 6: Official Information, paragraph 2—False or inaccurate reports, you are dismissed from the New Orleans Police Department, effective Monday, January 30, 2012. (Emphasis in original).

Sgt. Regis appealed the disciplinary decision to the CSC. A Hearing Officer presided over the appeal, which was held on May 29, 2013, June 26, 2014, and August 21, 2014. Sgt. Regis, Officer Fortuna, and several other officers testified.'

In his testimony before the hearing officer, Officer Fortuna described, consistent with his previous statement, the physical altercation that occurred during the arrest. He reiterated that he was told by Sgt. Regis to remove the battery on a police officer charge as well as the verbiage that a brief struggle ensued. Additionally, he stated that Sgt.' Regis explained to him that he would have to take a urinalysis if the battery charge and information regarding the struggle were not omitted.

Sgt. Leblanc testified that in connection with his investigation of Sgt. Regis on behalf of the NOPD, he concluded that the arrest report contained false ^information because Officer Fortuna was instructed to remove certain details related to the battery on an officer and flight from an officer. He further stated that based on NOPD policy, and based on Officer Fortu-na’s use of force during the arrest, Sgt. Regis was required to prepare a use of force report.

Officer Thompson testified that she assisted Officer Fortuna in writing the incident report and gist. She stated that both the report and the gist provided details related to the battery on an officer and flight from an officer.

Officer Kendrick ’ testified that he saw the subject hit Officer Fortuna “maybe twice.” In his estimation, the subject’s actions constituted a battery. Officer Kendrick reiterated his prior statement that he was assisting Officer Fortuna in preparing his report, but was ordered back on the street by Sgt, Regis.

Sgt. Bagneris testified that Officer For-tuna expressed his concerns to her that Sgt. Regis instructed him to remove certain information from the gist, and not to include details about the use of force and the chase in the incident report. She instructed Officer Fortuna to- write a second report, in order to re-book the subject on the original charges of battery and flight from an officer.

Sgt. Stalbert testified that when Officer Fortuna entered the station after the arrest, he observed Officer Fortuna to be dirty. Officer Fortuna explained that -he had been involved in a scuffle during the arrest. Sgt. Stalbert reiterated that Officer Fortuna included a description of the scuffle in his initial report, ‘but that the language was removed per Sgt. Regis’s instructions. He further testified that it is never appropriate for a supervisor to instruct a subordinate officer to remove relevant charges from a police report. Sgt. Stalbert stated that he would have approved the initial gist prepared by Officer Fortuna.

^Deputy Superintendent Darryl Albert (“Chief Albert”) testified that he presided over the disciplinary hearing. In connection therewith, he recommended that Sgt. Regis’s violation of Rule 4, Performance of Duty, paragraph 4, Neglect of Duty, be sustained. He explained that Sgt. Regis violated Rule 4 because she neglected to properly supervise Officer Fortuna and failed to completó the required use of force paperwork. Chief Albert also determined that Sgt. Regis violated Rule 6, Official Information, paragraph 2, False or Inaccurate Reports, when she instructed Officer Fortuna to remove the details of the use of force incident. Concerning Rule 2, Moral Conduct, paragraph 3, Truthfulness, Chief Albert explained that the truthfulness charge was added after considering Sgt. Regis’s testimony at the disciplinary hearing. It was determined that Sgt. Regis violated this rule when she stated that she only told Officer Fortuna to remove the battery charge, because the gist did not support the charge. Chief Albert stated that this fact was refuted by other officers who observed Officer. .Fortuna include the elements of the charge in the gist.

Lieutenant'Denise Miíes Thomas was the’ Commander of the Seventh Police District on the day in question. She testified that it is never appropriate for a Sergeant to instruct an officer to remove language regarding a struggle from a' gist if the officer claims that he was involved in a struggle during an arrest.

In her testimony before the hearing officer, Sgt. Regis stated that when she became aware that the gist included a battery charge, she asked Officer Fortuna to explain the battery, but he just shrugged his shoulders. She explained to Officer Fortuna that if he could not tell her what the battery was, he could not charge the subject with battery. She further testified that Officer Fortuna claimed that there was no struggle. She acknowledged, however, that she observed grass stains on | ^Officer Fortuna’s shirt. She was also aware that Officer Fortuna was involved in a “take down” maneuver during the arrest of the subject.

Sgt. Regis stated that she did not interview Officer Kendrick regarding the arrest because she did not know he was at the scene. However, she acknowledged that this information was contained in the gist that she signed.

The hearing officer issued a report on July 28, 2015, finding that the NOPD met its burden of proof and established .that Sgt. Regis was disciplined for cause. It was further determined that the NOPD established that the complained of conduct impaired the efficient operation of the department and that the penalties imposed were commensurate with the offenses. The hearing officer specifically noted in the report that Sgt. Regis’s testimony as to why she instructed Officer Fortuna to remove the battery charge to be self-serving and not credible.

In a ruling dated May 24, 2016, the CSC denied Sgt. Regis’s appeal, finding that “[t]he Appointing Authority met its burden of proof and established that [Sgt. Regis] was disciplined for cause and that the discipline imposed was commensurate with the infractions and in accordance with the Departmental disciplinary matrix.” Sgt. Regis’s timely appeal to this Court followed.

On appeal, Sgt. Regis asserts the following eight assignments of error:

1. The decision of the Civil Service Commission upholding the termination of Sgt. Regis was manifestly erroneous because the testimony established that Sgt. Regis did not violate NOPD policy whe,n she instructed Officer Fortuna to remove one phrase and two charges from the Gist of his Incident Report.
2. The decision of the Civil Service Commission upholding the demotion of Sgt. Regis was manifestly erroneous because even if.a use,of force form should have been submitted, the penalty of demotion for the Rule 4 violation exceeded the NOPD penalty schedule and was therefore excessive and in violation of NOPD policy.
In3. The decision of the Civil Service Commission .was manifestly erroneous because the appointing authority failed to comply with the Constitutional requirements enunciated by the Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
4. The decision of the Civil Service Commission was manifestly erroneous because the conclusions reached and the penalties imposed were arbitrary, unreasonable and without any basis in fact or law.
5. The decision of the Civil Service Commission was manifestly erroneous because it erroneously found that the alleged actions of Sgt. Irma Regis violated the policies of the NOPD.
6. The decision of the Civil Service Commission was manifestly erroneous because it erroneously found that the alleged actions of Sgt. Irma Regis impaired the efficient operation of the public service.
7. The decision of the Civil Service Commission was manifestly erroneous because the NOPD erroneously imposed discipline that was not commensurate with the alleged infractions.
8. The penalty herein was excessive.

STANDARD OF REVIEW

In Honoré v. Dept. of Public Works, 14-0986, (La. App. 4 Cir. 10/29/15), 178 So.3d 1120, this Court summarized the standard of review applicable to decisions of the CSC as follows:

The Louisiana Constitution Article 10, § 8 provides in pertinent part, “No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing.” See Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La. 1984). A civil service employee subjected to disciplinary action by his or her appointing authority has the right of appeal to the Civil Service Commission. La. Const. Art. 10 §§ 8, 12; See, e.g., Adams v. Dept. of Police, 08-0468, p. 2 (La.App. 4 Cir. 2/12/09), 7 So.3d 763, 765. On appeal to the Commission, the Appointing Authority must prove by a preponderance of the evidence good or lawful cause for taking disciplinary action. See, e.g., Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094. Good or lawful cause for disciplinary action exists if the employee’s conduct impairs the efficient operation of the public service in which the employee is engaged. Bell v. Dept. of Police, 13-1529, p. 5 (La.App. 4 Cir. 5/21/14), 141 So.3d 871, 874 (quoting Pope v. New Orleans Police Dep't., 04-1888, p. 6 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 5). Thus, the Appointing Authority has the burden to prove, by a preponderance of evidence, that the act or infraction occurred and that such act or infraction bore a real and substantial relationship to the operation of the public service. Cure, 07-0166, p. 2, 964 So.2d at 1094.
The Commission must then determine independently from the facts presented whether the legal cause for disciplinary action has been established and, if so, whether that disciplinary action is commensurate with the employee’s detrimental conduct. See Bell, 13-1529, p. 5, 141 So.3d at 874-75. The Commission has the duty and authority to affirm, reverse, or modify the action taken by the Appointing Authority. Clark v. Dept. of Police, 12-1274, p. 4 (La.App. 4 Cir. 2/20/13), 155 So.3d 531, 534.
The final decision of the Commission is subject to review on any question of law or fact upon appeal to the court of appeal. La. Const. Art. 10 § 12; Cure, 07-0166, p. 2, 964 So.2d at 1094. The appellate court reviews the Commission’s findings of fact under a clearly wrong or manifest error standard of review. Cure, 07-0166, p. 2, 964 So.2d at 1094. In reviewing the Commission’s determinations of whether legal cause existed and whether the discipline is commensurate with the infraction, the appellate court should not modify or reverse the Commission’s decision unless it is arbitrary, capricious, or characterized by an abuse of discretion. Clark, 12-1274, p. 5, 155 So.3d at 535; Ellis v. Dept. of Police, 10-0048, p. 6 (La.App. 4 Cir. 5/12/10), 38 So.3d 1148, 1152; Bannister v. Dept. of Streets, 95-0404, p. 8 (La. 1/16/96), 666 So.2d 641, 647. A decision is arbitrary and capricious if there is no rational basis for the action taken. Clark, 12-1274, p. 5, 155 So.3d at 535 (citing Cure, 07-0166, p. 2, 964 So.2d at 1095). Applying this standard, the appellate court must review two parts of the Commission’s decision: (1) whether the Appointing Authority established good, legal cause for taking disciplinary actjon; and, if so, (2) whether the punishment imposed is commensurate with the offense. Hills v. New Orleans City Council, 98-1101, p. 6 (La.App. 4 Cir. 12/9/98), 725 So.2d 55, 58.

Honoré, 14-0986, pp. 8-9, 178 So.3d at 1126-1127.

LAW AND ANALYSIS

In the instant case, Sgt. Regis asserts eight assignments of error, as set forth above. Some of the assignments of error are duplicative, and will be grouped into three parts for discussion.

JjL

In this first part, we address the first, fourth, fifth, and sixth assignments of error as they are intertwined. In these assignments of error, Sgt. Regis asserts that the decision of the CSC was manifestly erroneous because the testimony and the record evidence failed to establish that she violated NOPD policies and/or that her actions impaired the efficient operation of the department. In sum, Sgt. Regis submits that the conclusions reached by the CSC were arbitrary, unreasonable, and without any basis in fact or law. We disagree.

Sgt. Regis submits that her actions did not violate NOPD policy. In defense of her actions, Sgt. Regis avers that she instructed Officer Fortuna to remove battery on an officer from the gist because he could not articulate how a battery occurred or confirm that there was a struggle. She further contends that she did not fill out a use of force report because it was not warranted under the circumstances. The record evidence does not support these assertions.

After reviewing the appellate record, and in evaluating the CSC’s exercise of discretion in determining whether the disciplinary action imposed is based on legal cause, we find that a rational basis existed for the CSC’s decision. The CSC’s ruling was based on the testimony of numerous witnesses, which clearly contradicted Sgt. Regis’s testimony regarding her instructions to Officer Fortuna in drafting the gist and in her failure to prepare a use of force report. The record also reveals that Sgt. Regis’s testimony before the hearing examiner contradicted her prior statements made in connection with the investigation. More specifically, before the | ^hearing examiner Sgt. Regis admitted that she knew Officer Fortuna used force to take the subject to the ground. She also admitted on cross-examination that she knew Officer Kendrick was present on the scene. The record reveals that the hearing officer and the CSC reasonably evaluated the conflicting testimony and determined that Sgt. Regis’s account of the events lacked credibility. Thus, the ruling was not arbitrary and capricious.

Chief Albert testified how Sgt. Regis’s actions violated the NOPD policies and how those violations impaired the efficient operation of the department. Chief Albert explained that Sgt. Regis’s actions in neglecting her duties “can erode and possibly did erode the confidence in the public and by the members of the New Orleans Police Department that get out and do the work every day. The officers have got' to have the confidence to know that the department will stand by them when they act accordingly.”

Regarding the violation of Rule 2, moral conduct and truthfulness, Chief Albert further explained:

This administration has made it' clear that honestly [sic] and truthfulness is something that’s going to be the highest standard. It’s not a loose charge that’s used loosely. "It’s a serious violation. And what happened in this case is that, again, the officers that’s out in the street doing the work that we ask them to do, we must support them and a violation as such erodes the confidence between the officers and the support staff that they won’t have the support of the police department when they actually doing their jobs.

Based on our review of the record, we find the CSC correctly determined that Sgt. Regis’s actions were prejudicial to the public service and/or impaired the efficient operation of the NOPD.

J^n.

In this part, we address the issues presented in assignments of error two, seven and eight, ie., whether the discipline imposed was commensurate with the alleged infractions. Sgt. Regis argues in her brief to this Court that the penalty of demotion for the Rule 4 violation (Neglect of Duty for failure to file a use of force report) exceeded the NOPD penalty matrix. Sgt. Regis contends that Chief Albert, in his testimony before the hearing officer, classified the alleged rule .violation, as a first offense, for which the matrix provides for a 3-15 day suspension, not a demotion. However, the record reflects that Chief Albert testified that he was not sure whether Sgt. Regis’s Rule 4 violation was a first or second offense. The record further reflects that .Sgt. Regis was notified by letter dated January 30, 2012, that - the violation of Rule 4 was listed as a second offense.

Chief Albert identified the penalty matrix set forth in Chapter 26.2 of the NOPD’s operations policy procedure manual, which outlines the definition of the rules and gives the ranges of the penalties. Regarding Rule 4, he stated that the penalty for a second violation, in a category 2 case such as this one,'ranges from a 15-day suspension to dismissal. As such, demotion is within that penalty range. Regarding the violations of Rules 2, and 6, Chief Albert testified that the only penalty allowed is dismissal. Based on our review of the record, we find that the penalties assessed against Sgt. Regis were commensurate with the violations charged.

III.

Finally, we address Sgt. Regis’s third assignment of error, wherein she asserts that the CSC’s ruling was in error because the NOPD failed to |incomply with the due process requirements of Loudermill. More specifically, Sgt. Regis maintains that she did not receive written notice that she was being charged with violating Rule 2 due to alleged untouthfulness. We find merit in this assignment of error.

It is undisputed that the truthfulness charge was not in the origina^ notice to Sgt. Regis, but was added after the pre-disciplinary hearing. Chief Albert testi-fled before the hearing officer that the truthfulness charge was added after the disciplinary hearing. He explained that the untruthfulness occurred during the disci-plinaiy hearing, and was “based on what the investigator’s report had, the testimony of Sgt. Regis, and the testimony of Officer Fortuna.”

In Williams v. Dept. of Property Mgmt., 02-1407, pp. 2-3 (La.App. 4 Cir. 4/16/03), 846 So.2d 102, 104, this Court discussed the notice requirement as follows:

Louisiana Constitution Article 10, § 8, provides in part that: “No person who has gained permanent status in classified state or city service shall be subject to disciplinary action except for cause expressed in writing.” Rule IX, § 1.2 of the Rules of the Civil Service Commission for the City of New Orleans, states that “[i]n every case of termination of employment of a regular employee, the appointing authority shall conduct a pre-termination hearing as required by law and shall notify the employee of the disciplinary action being recommended prior to taking the action.” In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985), the United States Supreme Court held:
The essential requirements of due process ... are notice and an opportunity to respond... .The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an- | ^opportunity to present his side of the story... .To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing.an unsatisfactory employee.
In Riggins v. Department of Sanitation, 92-1921 (La. App. 4 Cir. 1993), 617 So.2d 112, this Court reviewed Louder-mill in light of Rule IX, § 1.2, of the Rules of the Civil Service Commission and concluded that an employee is entitled to advance notice of the charges and evidence against him prior to his pre-termination hearing. See also Henderson v. Sewerage and Water Bd., 99-1508 (La. App. 4 Cir. 12/22/99), 752 So.2d 252. An explanation of the evidence is a prerequisite to the employee’s pre-termination opportunity to present his side of the story. Webb v. Department of Safety & Permits, 543 So.2d 582 (La. App. 4 Cir. 1989). This Court has previously held that notice of .the charges should fully describe the conduct complained of, setting forth the relevant dates and places and.the names of witnesses against the employee to enable the employee to fully answer and prepare a defense. Id.

In Williams, the plaintiff appealed the termination of her employment by the Department of Property Management for the City of New Orleans. Williams was informed by the letter that termination of her employment was being considered as a result of payroll fraud which occurred on April 13, 2001. The letter stated that the plaintiff “should be prepared to defend [herjself against the charges of payroll fraud that occurred on Friday, April 13, 2001.” This one incident of payroll fraud was the only matter discussed at the pre-termination hearing. After the hearing, two other incidents of payroll fraud were discovered and the plaintiff was terminated on May 1, 2001. The letter of May 1, 2001 stated:

We have been forced to terminate you because you altered your time card on three (3) separate occasions after your supervisor, Sergeant Oris Buckner, had signed the time card approving your time and attendance. On each occasion your action resulted in a benefit to your pay or leave balance and, thus, constituted payroll fraud.”

11sThe letter also revealed that that the committee “reconvened and reviewed additional time cards” after an additional alleged incident of payroll fraud was found after the hearing on April 25, 2001.

This Court in Williams reversed the CSC, finding that because the two additional incidents of payroll fraud were used in terminating the plaintiffs employment, “the plaintiff was entitled to notice of these additional charges and an opportunity to present a defense in regards to these additional charges. The requirements of La. Const. Art. 10 § 8 and Loudermill were not met.” Williams, 02-1407, p. 5, 846 So.2d at 105.

In the present case, it is undisputed that Sgt. Regis was not given advanced notice of the truthfulness charge, and she was not provided with an adequate opportunity to present a defense to that charge. Thus, we find that the NOPD did not fulfill the above referenced due process requirements in sustaining the Rule 2 violation for truthfulness. Consequently we reverse that part of the CSC’s ruling, which upheld the termination of Sgt. Regis based on the Rule 2 violation.

As previously stated, we do not find that the CSC was arbitrary and/or capricious in denying Sgt. Regis’s appeal regarding the sustained violations of Rules 4 and 6. Based on the record evidence, we agree with the findings of the hearing officer, which were adopted by the CSC. We also find that the punishments assessed in this case are commensurate with violating Rule 4: Performance of Duty; Paragraph 4: Neglect of Duty, Section C: Subparagraph 4; Failing to make a written report when such is indicated, and Rule 6: Official Information, Paragraph 2; False or inaccurate reports.

^CONCLUSION

For the foregoing reasons, we affirm in part, finding that the CSC’s decision to deny Sgt. Regis’s appeal in connection with the sustained violations of Rules 4 and 6 was based on sufficient legal cause and was neither arbitrary nor capricious. We reverse that part of the CSC’s ruling, which denied Sgt. Regis’s appeal in connection with the sustained violation of Rule 2, upon finding that Sgt. Regis was not provided with adequate notice of that charge.

AFFIRMED IN PART; REVERSED IN PART

      . It is important to note here that the Rule 2 violation (Honesty and Truthfulness) was not included in the original DI-1 Form sent to Sgt. Regis on March 23, 2011. This alleged violation was added after the disciplinary investigation was concluded.

      . A separate and unrelated truthfulness charge, which was contained the June 19, 2011 notice to Sgt, Regis, was dismissed prior to her termination, and is not at issue in this appeal.


source: Caselaw Access Project

author: JAMES F. McKAY III, CHIEF JUDGE

license: Public Domain

text:
    Frank S. ROMANO, Sr. and Lynn Rome Romano v. METROPOLITAN LIFE INSURANCE COMPANY, et al.
    NO. 2016-CA-0954
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 24, 2017

      LAWRENCE J. CENTOLA III, SCOTT R. BICKFORD, JASON Z. LANDRY, MARTZELL & BICKFORD, APC, 338 Lafayette Street, New Orleans, Louisiana 70130 AND LAWRENCE BLAKE JONES, JOSHUA LEE RUBENSTEIN, PATRICK J. ESKEW, '' SCHEUER-MANN & JONES,'701 Poydras Street 41st Floor, New Orleans, Louisiana 70139, COUNSEL FOR PLAINTIFF/APPELLANT
    DEBORAH D. KUCHLER, McGREADY LEWIS RICHESON, ERNEST GEORGE FONDAS, FRANCIS XAVIER deBLANC III, PERRY S. LEE, LEIGH ANN SCHELL, KUCHLER POLK SCHELL, WEINER & RICESON, LLC, 1615 Poydras Street, Suite 1300, New Orleans, Louisiana 70112, COUNSEL FOR DEFENDANT/APPELLANT
    . (Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Marion F. Edwards, Pro Tempore)
   JAMES F. McKAY III, CHIEF JUDGE

Lin this mesothelioma ease, both the defendant Union Carbide-Corporation and the plaintiffs, Frank Romano, Sr. and Lynn Romano, appeal a jury verdict entered by the trial court as well as the trial court’s denial-of their respective attempts to nullify the: jury’s verdict. The plaintiffs seek an increase in the quantum of damages, while the defendant questions liability and causation.

FACTS AND PROCEDURAL HISTORY

Frank Romano, Sr. grew up in Marrero, Louisiana and lived about two blocks away from the Johns-Manville Corporation’s plant there from the 1940’s until he went away to college in the early 1960’s. Following college, Mr. Romano worked at Union Carbide Corporation’s Taft facility for nine to ten months during 1967 and 1968, For the majority of time that he worked at the Taft facility, Mr. Romano was assigned to the stores department, where his occupational asbestos exposure was thousands of times above background levels on a daily basis.

After he contracted malignant mesothe-lioma, Mr. Romano and his wife Lynn filed suit against Union Carbide and .ten other defendants on September 12, |⅞2014. Two of the defendants, Capital Rubber and Specialty Company, LLC and Gulf Belting and Gasket Corporation, Inc., filed a third party demand against- Claims Resolution Management Corporation, as successor in interest to Johns-Manville. The case proceeded to a jury trial, which ran from March 14 through 22,2016.

At trial, Mr. Romano and his treating physicians, Drs. Pettiford and Satti, all testified. Mr. Romano’s medical causation expert, Dr. John Maddox, also testified via a video deposition. Testimony at trial indi-eated that as a result of the diagnosis and treatment of mesothelioma, Mr. Romano underwent a PleurX catheter insertion, or tunnel catheter, to periodically drain fluid build-up in his lungs; suffered from a staph infection as a'result of the PleurX catheter insertion that necessitated hospitalization for a week; underwent a radical pleurectomy procedure to remove part of the lining of his lung as well as one of his ribs; endured “hot” chemotherapy (a treatment where physicians bathe the chest cavity with a very high temperature, high concentration chemotherapy agent); endured four rounds of what would be considered traditional chemotherapy; and underwent an additional procedure following his radical pleurectomy to repair diaphragmatic herniation, because Mr. Romano’s intestinal contents herniated from the inside of his abdomen into his chest cavity, causing severe- abdominal pain, nausea, vomiting, inability to eat and significant weight loss. His medical bills totaled over $566,274.00 and he continued to be in pain two years following.his diagnosis and |3his numerous surgical procedures. His treating physicians, Drs. Pettiford and Satti, testified that Mr, Romano’s survival probability for five years beyond diagnosis was between 10-20%. Dr. Satti believed that reoccurrence was probable in an inoperative location, and that Mr. Romano’s future would be filled with prolonged palliative chemotherapy and a very painful and uncomfortable death from mesothelioma. Mr. Romano would experience considerable fatigue, decrease in appetite, weakness and shortness of breath due to accumulating fluid in the lungs. Dr. Satti also testified that Mr. Romano was very stressed when he was diagnosed and that he lives a life of anxiety as he anticipates a reoccurrence of mesothelioma.

On March 22, 2016, the jury returned a verdict in favor of plaintiffs and against the defendants. Included in the jury verdict were awards of $566,274.00 in stipulated past medical expenses; $150,000.00 in future medical expenses; $250,000.00 for loss of enjoyment of life, past and future; and $250,000.00 for general damages, including past and future physical pain and suffering, past and future mental anguish, and past and future disability. The trial court entered judgment on April 18, 2016, in accord with the jury verdict. After the jury’s verdict was entered, the plaintiffs filed their motion for partial judgment notwithstanding the verdict on damages only, or, in the alternative motion for partial new trial on damages only, arguing that these awards were grossly inconsistent with the evidence adduced at trial and quantum in similar cases. On May 26, 2016, the trial court denied this motion. The trial court also denied Union Carbide’s request for a verdict reduction for Johns-Manville’s fault. On June 3, |42016, the plaintiffs filed a motion and order for devolutive appeal, which the trial court signed on June 6, 2016. Union carbide filed a petition and order for suspensive appeal, which the trial court signed on June 29, 2016.

DISCUSSION

On appeal, Union Carbide raises the following assignments of error: 1) the trial court erred in not reducing the jury verdict by one-half for the fault of Johns-Manville because it is treated as a settled party under Louisiana law and under the provisions of its settlement trust; and 2) the trial court erred in allowing plaintiffs’ only medical causation expert to testify regarding unsupported hypotheticals and then erred in not granting a directed verdict due to the absence of any testimony to support a causation finding. Alternatively, the jury’s verdict finding Union Carbide at fault should be reversed because plaintiffs’ only medical causation expert’s opinion was solely based on unfounded hypothetical questions which carry no weight. The Romanos also raise two assignments of error on appeal: 1) the jury abused its discretion when it awarded general damages to plaintiffs in the amount of $250,000.00 for Frank Romano’s past, present and future pain and suffering and an additional $250,000.00 for Frank Romano’s past, present and future loss of enjoyment of life; and 2) the district court abused its discretion when it denied plaintiffs’ motion for partial judgment notwithstanding the verdict on damages only, or, in the alternative, motion for partial new trial on damages only because the jury’s award was grossly below other mesothelio-ma verdicts in this state.

1 fiWe will first address the assignments of error raised by Union Carbide. In its first assignment of error, Union Carbide contends that the trial court erred in denying its motion in limine and not reducing by one-half for the fault of Johns-Manville because it is treated as a settled party under Abadie v. Metropolitan Life Ins. Co., 00-344 (La.App. 5 Cir. 3/28/01), 784 So.2d 46 and the terms of its settlement trust. The trial court found that Union Carbide was not entitled to a virile share credit under the facts of this case as the plaintiffs never settled with the Johns-Manville Settlement Trust.

Under pre-comparative fault law, which governs this case, joint tortfeasors were solidarily liable for a tort victim’s injury. Under solidary liability, “the obligee, at his choice, [could] demand the whole performance from any of the joint and indivisible obligors.” Berlier v. A.P. Green Industries, Inc., 2001-1530 (La. 4/3/02), 815 So.2d 39, 48. The only remedy available to a solidary obligor from whom the whole performance was sought was to seek “contribution” from the joint tortfeasors in the amount of the joint tortfeasor’s “virile share.” Daniels v. Conn, 382 So.2d 945 (La. 1980). However, when a plaintiff settled with a joint tortfeasor, the joint tortfeasor was also released from paying contribution to the solidary obligor. See Wall v. American Employers Insurance Co., 386 So.2d 79, 82-83 (La. 1980). The law imposed a tradeoff in this situation that would both produce settlements and cure the solidary obligor’s inability to seek contribution from the settling party; plaintiffs recovery against the solidary obligor was 1 f,reduced by the settling joint tortfeasor’s virile share. Id. Before the solidary obligor could receive a “credit” for the settling parties’ virile share, the fact that the settling party was in fact a joint tortfeasor had had to be established. Id.; Abram v. EPEC Oil Co., 2005-0626 (La.App. 4 Cir. 6/28/06), 936 So.2d 209, 213. The risk that a joint tortfeasor was insolvent was borne by the solidary obligor. See former La. C.C. art. 2014. The solvency or insolvency of a joint tortfeasor pertained only to a solidary obli-gor’s ability to recover contribution from the joint tortfeasor, not to the ability of a plaintiff to recover “the whole judgment” from any one solidary obligor. Id.

The sine qua non for a solidary obligor’s right to receive a “virile share credit” were that 1) the plaintiff released a party, thereby precluding the remaining solidary obli-gors from seeking contribution from it, and 2) that the released party’s liability is established at trial. Wall v. American Employers Insurance Co., 386 So.2d 79. A solidary obligor cannot benefit from a virile share credit unless both of these requirements are met.

A settlement or “compromise” under Louisiana law “is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” La. C.C. 3071. It is well-settled that a contract is formed by the consent of the parties established through offer and acceptance. La. C.C. art. 1927. Additionally, La. C.C. art. 3072 provides “[a] compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.” As recognized by this Court, the written compromise is “valid if there is a meeting of the minds of the parties as to exactly what they intended when the compromise was reached.” Feingerts v. State Farm Mut. Auto. Ins. Co., 2012-1598 (La. App. 4 Cir. 6/26/13), 117 So.3d 1294, 1301. Thus, a compromise or settlement is valid only when the parties intend to enter into a settlement.

In the instant case, the Romanos have not settled with Johns-Manville. Therefore, Union Carbide is not entitled to a virile share credit under Louisiana’s soli-dary liability regime. Accordingly, we find no error in the trial court’s denial of Union Carbide’s motion in limine and not reducing by one-half Union Carbide’s liability because of the fault of Johns-Manville.

In its second assignment of error, Union Carbide contends that the trial court erred in allowing the plaintiffs’ medical causation expert to testify regarding unsupported hypothetical and then erred in not granting a directed verdict due to the absence of any testimony to support a causation finding.

Causation is a factual issue to be determined by the fact finder. Cay v. State, DOTD, 93-0887 (La. 1/14/94), 631 So.2d 393, 398. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La. 1989). The issue to be resolved by a reviewing court, is not whether the trier of fact was right or Iswrong but whether the factfinder’s conclusion was a reasonable one. See Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La. 1992); Housley v. Cerise, 579 So.2d 973 (La. 1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

The “standard of proof in asbestos cases, developed by Louisiana courts over years of asbestos litigation, is known as the' ‘substantial factor’ test.” “[T]he plaintiff must prove by a preponderance of the evidence that: (1) his exposure to the defendant’s asbestos product was significant; and (2) that this exposure caused or was a substantial factor in bringing about his mesothelioma (or other asbestos-related disease).” Oddo v. Asbestos Corp., Ltd., 2014-0004 (La.App. 4 Cir. 8/20/15), 173 So.3d 1192, 1202 citing Robertson v. Doug Ashy Big. Materials, Inc., 2010-1551, p. 19 (La.App. 1 Cir. 10/4/11), 77 So.3d 360, 372 (citing Rando v. Anco Insulations, Inc., 2008-1163, 2008-1169, p. 38, 16 So.3d at 1092).

In the instant case, the plaintiffs’ expert industrial hygienist, Kenneth Garza, CIH, testified that any asbestos exposure above a background level is a substantial factor in bringing about the subsequent mesothe-lioma; he defined background as .001 f/cc. Thus any exposure above .001 f/cc was a substantial factor. The plaintiffs’ pathology expert, Dr. John Maddox, confirmed the opinion that asbestos exposure above background is a substantial contributing factor to cause mesothelioma. Dr. Maddox defined background as .0002 f/cc—an order of magnitude less than Mr. Garza’a opinion of background. Wallace Borne, a former Union Carbide employee who worked in the stores department, testified that |aemployees in the stores department handled and cut asbestos gasket material with saws, knifes or box cutters multiple times per day and' the cutting process would create visible asbestos dust. Mr. Garza testified that if you can see asbestos dust, the asbestos level is 8 to 10 fibers per cubic foot—well above background level. Union Carbide’s own records show that an employee handling gaskests in the stores department was exposed to .07 f/cc levels of asbestos fibers.

Mr. Romano worked at Union Carbide’s Taft facility for 9 to 10 months. He spent 5 to 6 of those months in the stores department. Dr. Maddox testified that if Mr. Romano was exposed to visible asbestos dust at the Taft facility once a week for 6 to 8 months, those exposures would be a substantial contributing factor to cause the mesothelioma. Once a week for six to eight months is somewhere between 24 and 32 times. However, the testimony shows that Mr. Romano would have been exposed to visible asbestos dust from gaskets everyday he worked in the stores department (moré than 100 times). Dr. Maddox testified that Mr. Romano was exposed to asbestos at Union Carbide at a level ten times above the level necessary for the experts to opine that the exposure was a substantial contributing factor in causing Mr, Romano’s mesothelioma. Accordingly, we find no error in the trial court’s allowing Dr. Maddox’s medical causation testimony.

We will now address the assignments of error raised by Mr. and Mrs. Romano. In their first assignment of error, the Romanos contend that the jury abused its discretion in awarding general damages of only $500,000.00 for theinjuries suffered by Frank Romano, Sr. “General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty.” Bouquet v. Wal-Mart Stores, Inc., 2008-0309 (La. 4/4/08), 979 So.2d 456, 458 citing Duncan v. Kansas City So. Rail. Co., 2000-0066, p. 13 (La. 10/30/00), 773 So.2d 670, 682; Boswell v. Roy O. Martin Lumber Co., 363 So.2d 506, 507 (La. 1978).

The standard of review applicable to a general damages award is the abuse of discretion standard. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La. 1976). The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Duncan, 2000-0066, p. 13, 773 So.2d at 682. An appellate court may disturb a damages award only after an articulated analysis of the facts reveals an abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The role of an appellate court in reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact. Duncan, 2000-0066, p. 13, 773 So.2d at 682-83; Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La. 1993). To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case. Theriot, 625 So.2d at 1340; Youn, 623 So.2d at 1261. Only if a review of the facts reveals an abuse of Indiscretion, is it appropriate for the appellate court to resort to a review of prior similar awards. Duncan, 2000-0066, p. 14, 773 So.2d at 683. In a review of the facts, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. Theriot, 625 So.2d at 1340; Reck v. Stevens, 373 So.2d 498, 501 (La. 1979). Prior awards, however, are only a guide. Theriot, 625 So.2d at 1340.

In the instant case, Mr. Romano has suffered and; will continue to suffer as a result of his contraction and the treatment of mesothelioma. Mr. Romano endured numerous invasive surgeries and other treatments in his fight against this disease. These included a PleurX catheter insertion to periodically drain fluid build-up in his lungs, undergoing a radical,pleurectomy procedure to remove part of the lining of his lung, as well as one of his ribs, enduring a radical treatment known as “hot” chemotherapy where physicians bathe the chest cavity with a very high temperature/high concentration chemotherapy agent, enduring four rounds of traditional chemotherapy, and undergoing an additional procedure following his radical pleaurectomy surgery to repair diaphragmatic herniation, where his intestinal contents herniated from the inside of his abdomen into his chest cavity. Mr. Romano also suffered from a staph infection that necessitated hospitalization for a week. Mr. Romano continued to be in pain two years following his diagnosis and his numerous surgical procedures. He will continue to have pain from these procedures and also has to live with the knowledge that there is no cure for mesothelioma. Accordingly, the facts and circumstances surrounding the injuries hi>sustained by Mr, Romano and how the injuries specifically impacted him show that the jury abused its discretion in awarding general damages of only $500,000.00.

We must now resort to a review of past awards for similar injuries. In Zimko v. American Cyanamid, 2003-0658 (La.App. 4 Cir.6 /8/06), 905 So.2d 465, an Orleans Parish jury awarded damages of $2,500,000.00 on a survival action for a mesothelioma victim who filed suit against his father’s employer, his own employer, and a contractor of his employer alleging negligence, strict premises liability, fraud and intentional acts leading to household, bystander, and occupational exposure to asbestos. The appellate court upheld the verdict against the premises owner.

In Faulkner v. McCarty, 2002-1337 (La. App. 4 Cir. 6/11/03), 853 So.2d 24, this Court upheld a $2,300,000.00 verdict in a case involving death from mesothelioma. In Faulkner, the plaintiff, a longshoreman, filed suit against asbestos manufacturers, the Board of Commissioners for the Port of New Orleans and others. Mr. Faulkner died on August 21, 1998, from malignant mesothelioma as a result of asbestos exposure. Mr. Faulkner’s son was substituted in the survival action and asserted a wrongful death claim as well.

In Torrejon v. Mobil Oil Co., 2003-1426 (La.App. 4 Cir. 6/2/04), 876 So.2d 877, an Orleans Parish judge granted the plaintiffs motion for JNOV and awarded general and special damages of $1,800,000 for the plaintiffs decedent (a former merchant mariner) who had contracted mesothelioma after the jury had returned a verdict for the defendant.

In Chaisson v. Avondale Industries, Inc., 2005-1511 (La.App. 4 Cir. 12/20/06), 947 So.2d 171, a pipe-fitter and his daughter sued his former employer seeking damages based on his wife’s contraction of mesothelioma as the result of take-home exposure. The appellate court affirmed the Orleans Parish jury award of $1,416,580.54 in survival damages.

Based on the evidence put on at trial, Mr. Romano, like most of the individuals who contracted mesothelioma in the aforementioned cases, will most likely die from the reoccurrence of his mesothelioma. Considering that fact in combination with our review of the other cases, a general damages award of only $500,000.00 appears far too low. Our review of the other cases indicates that Mr. Romano’s general damages award should be somewhere in the $1.5 million to $2 million range. Since we are instructed by jurisprudence that we should only raise a general damage award to the lowest reasonable amount that a trier of fact could have awarded, we will raise the amount of general damages awarded to the plaintiffs from $500,000.00 to $1,500,000.00.

Due to the position we have taken above it is also evident that the trial court erred in not granting the plaintiffs’ motion for a partial judgment notwithstanding the verdict on the issue of damages only, or, in the alternative motion for partial new trial on damages only. The standard for granting or denying a judgment notwithstanding the verdict is whether reasonable minds could differ. Scott v. Hosp. Service Dist. No 1 of St. Charles Parish, 496 So.2d 270, 273-274 (La. 1986). The motion should be granted when the facts and inferences point so strongly and | uoverwhelmingly in favor of one party that reasonable jurors could not arrive at a contrary verdict. Id.; See also Joseph v. Broussard Mill, Inc., 2000-628 (La. 10/30/00), 772 So.2d 94; Torrejon v. Mobil Oil Co., 2003-1426 pp. 7-8 (La.App. 4 Cir. 6/2/04), 876 So.2d 877, 884. Likewise, a new trial must be granted when the verdict or judgment appears clearly contrary to the law and evidence. La. C.C.P. art. 1972(1).

CONCLUSION

For the above and foregoing reasons, we affirm the jury and trial court’s decisions regarding liability and causation. However, we reverse the jury’s verdict as to damages only and the trial court’s judgment denying plaintiffs’ motion for partial judgment notwithstanding the verdict on damages only, or, in the alternative, motion for new trial on damages only. Accordingly, we now increase the general damages award made to Mr. and Mrs. Romano from $500.000.00 to $1,500,000.00.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED

      . The Romanos later amended their lawsuit to add two additional defendants.

      . Unlike the plaintiff in Abadie, Mr. and Mrs. Romano neither settled with nor made a claim against nor received payment from Johns-Manville.

      . Former Louisiana Civil Code Article 2014 stated: “If one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each. If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent codebtors and him who has made the payment.”

      . Prior to trial, Union Carbide had retained its own medical pathology expert,. Dr. Thomas Wheeler. However, it chose not to call him at trial,


author: Judge Daniel L. Dysart

text:
    Alice ATKINSON, David Wells, and John McHugh v. HARBOR HOMEOWNERS ASSOCIATION, INC., Board of Directors, Michael George, Pete Ingrassia, Lisa Schuler; and Bonnie Loftis, as President of Fontaine Management Company (Managers of Harborview Condominiums)
    NO. 2016-CA-1141
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 24, 2017

      Pierre V. Miller, II, Patrick H. Patrick, PATRICK, MILLER, L.L.C., 400 Poydras Street, Suite 1680, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    Caleb H. Didriksen, III, Erin Bruce Saucier, Carl A. “Trey” Woods, III, Michael S. Finkelstein, DIDRIKSEN, SAUCIER, WOODS & PICHON, PLC, 3114 Canal' Street, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPEL-LEE
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart)
   Judge Daniel L. Dysart

|! Alice Atkinson and David Wells instituted actions for declaratory judgment and mandamus against the Harborview Homeowners Association, Inc.; Michael George, Pete Ingrassia, Lisa Schuler, as members of the Association’s board; and, Bonnie Loftis, as president of Fontaine Management Company (hereinafter “defendants” or “association”). Subsequently,' an Amended Petition for Writ of Mandamus, Declaratory Judgment and Damages was filed by Alice Atkinson and John McHugh, plaintiff/appellants (“plaintiffs”) herein. On May 26, 2016, the trial court rendered summary judgment dismissing all of plaintiffs’ claims. Plaintiffs appealed, and defendants answered the appeal complaining that the award of attorney fees for plaintiffs’ successful mandamus claim was excessive.

For the reasons that follow, we affirm the judgment in part, reverse the judgment in part, and remand this matter for further proceedings.

BACKGROUND:

Initially, Atkinson and Wells sought a declaratory judgment relative to the composition and operation of the board of directors of the association. They also I ^sought a temporary restraining order to prohibit the board of directors from taking any further actions, including spending monies in the association’s account and assessing fines • against property owners, until the court appointed a special master to conduct an annual meeting, and sought discovery of numerous documents allegedly held by the board of directors.

The trial court denied the request for a temporary restraining order and injunctions. Plaintiffs Atkinson and McHugh filed an amended Petition for Writ of-Mandamus, Declaratory Judgment and Damages. The writ of mandamus sought to have the association produce its membership roll for examination, to have the court declare certain board members ineligible to serve, and to declare plaintiff McHugh eligible to serve on the board. They also requested the court to invalidate all business conducted while an allegedly illegally constituted board was in place, in particular, amendments to the original bylaws. Ms. Atkinson sought damages, including attorney fees and costs.

Defendants filed exceptions including improper cumulation, unauthorized use of summary proceedings, prematurity, lack of procedural capacity and no right of action. The trial court overruled all of the exceptions as they pertained to Ms. Atkinson’s petition for writ of mandamus, and ordered defendants to produce the membership records. The court granted Ms. Atkinson’s request for attorney fees and costs, the amount to be determined at a later date.

Another judgment was rendered on August 13, 2015 granting in part a motion to compel filed by plaintiffs, awarding them limited court costs. | ..¡Additionally, the judgment indicated that defendants’ exceptions of lack of procedural capacity and no right of action were withdrawn, and the exceptions of improper cumulation and unauthorized use of summary proceedings were also withdrawn, reserving their right to object to any new summary proceedings. Defendants’ exception of prematurity was deferred pending a ruling by the court on the validity of the associations’ bylaws. Last, summary judgment was granted in part, finding that Michael George was eligible to serve on the association’s board. The. judgment denied summary judgment as to the validity of the amended bylaws, and deferred John McHugh’s request to be deemed eligible to serve on the board.

On November 19, 2015, the trial court ruled on the request for attorney fees and costs relative to the Ms. Atkinson’s writ of mandamus. The court awarded $7,822.41. Defendants asked for a new trial, which was denied ex parte on December 1, 2015. On December 31, 2015, defendants filed a Notice of Intent to Seek Supervisory Writ, and was given a return date of February 5, 2016. No writ was filed in this Court.

Defendants filed a second Motion for Summary Judgment on March-'28, 2016, seeking dismissal of all of plaintiffs’ claims arguing that no genuine issues of fact remained. The trial court rendered a judgment on May 26, 2016, ruling that, the vote of the association to amend its bylaws was valid and was retroactive to the date filed in the Orleans Parish conveyance records (12/23/13), and dismissing all Lof plaintiffs’ claims, with prejudice. All costs associated with the litigation of the motion for summary judgment were assessed to the plaintiffs.

Plaintiffs suspensively appeal the May 25, 2016 judgment. Defendants answer the appeal seeking to reverse and modify the award of attorney fees and costs awarded to plaintiffs on November 19,2015, relative to' plaintiffs’ writ of mandamus. Defendants also seek an award of attorney fees and costs associated with this' appeal, which defendants argue is frivolous.

DISCUSSION:

Plaintiffs raise two assignments of error. The first is that the trial court erred in granting summary judgment based on a finding that Michael George, a named defendant, is eligible to serve on the board of the association. The second is that the trial court erred in finding that the association’s bylaws and declarations were valid and in effect as of December 23, 2013.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83; Citron v. Gentilly Carnival Club, Inc., 14-1096, p. 10 (La.App. 4 Cir. 4/15/15), 165 So.3d 304. The burden of proof on a motion for summary judgment is addressed at La. Code Civ. Proc. Art. 966 C(2). This Court has explained:

The code [La.C.C.P. art. 966(C)(2)] provides that where [as in the instant case] the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party’s claim, but rather to point out to the court that an absence of factual support exists Rfor one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, no genuine issue of material fact exists, and the movant is entitled to summary judgment as a matter of law.

Citron, supra, 14-1096, p. 11, 165 So.3d at 312 (citing Sullivan v. Malta Park, 14-0823, p. 8 (La.App. 4 Cir. 12/10/14), 156 So.3d 1200, 1205-06). However, the burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Bush v. Bud’s Boat Rental, LLC, 13-0989, p. 3 (La.App. 4 Cir. 2/26/14), 135 So.3d 1189, 1191.

In their second Motion for Summary Judgment, defendants submitted that all of the issues raised in plaintiffs’ Amended Petition for Mandamus, Declaratory Judgment, and Damages had been resolved, and that no genuine issues of material fact existed.

Plaintiffs did not timely oppose the motion for summary judgment, and although the trial court allowed them to argue at the hearing, it did not allow plaintiffs to file any exhibits or other evidence in opposition. Plaintiffs did not object in the trial court, and do not raise this issue on appeal.

On appeal plaintiffs argue that La. R.S. 12:224 B controls who shall be eligible to serve on the board of directors. La. R.S. 12:224 B provides in pertinent part:

Subject to any limitations, restrictions, or reservations in the articles, the bylaws, or this Chapter, the affairs of the corporation shall be managed by a board of directors of | finot less than three natural persons, except that if there are fewer than three members, there need be only as many directors as there are members.

Plaintiffs' argue that because Michael George’s company, George Properties, LLC, owns a unit(s) at Harborview, and not himself individually, he cannot serve on the board.

Defendants argue that the bylaws provide for the qualifications of a board member, and state: “The Board of Directors shall be composed of three (3) persons, all of whom shall be Unit Owners or spouses of Unit Owners ...” Further, the association’s declarations (Article 1(B)(2)) define a person as “[a]ny natural individual, firm, corporation, partnership, association, trust or other legal entity capable of holding title to immovable property.”

It is clear from a plain reading of the original bylaws of the association and the declarations that a limited liability company, which is an entity capable of holding title to immovable property, is a voting member of the association. Therefore, Michael George, as the legal representative of George Properties, LLC, can be elected as an officer of the association.

In their second assignment of error, plaintiffs argue that the trial court erred in finding that the amendments to the association’s bylaws were legally and properly amended at a December 9, 2013 meeting, and that the bylaws, as amended, were effective as of the date they were filed in the conveyance records of Orleans Parish. We find that the trial court erred in its ruling.

In support of its Motion for Summary Judgment, the association attached numerous exhibits, including a document signed by a unit owner purportedly authorizing board members to vote in his stead at the December 9, 2013 meeting. The document is entitled “Proposed Revisions, Amendments and Additions to By-17Laws/Declaration/Articles of Harbor Homeowners Association Dated December, 2012.” The document sets forth eighteen items designed to amend, revise, and add various paragraphs to the existing bylaws. The document is signed by the unit owner and dated February 7, 2013.

The Statement of Undisputed Material Facts attached to the Motion for Summary Judgment sets forth that the bylaws of the association provide that unit owners’ votes may be cast by proxy ballot. Also, the association asserts that it is undisputed that the meeting was properly noticed by a mailing of November 27, 2013, notifying unit owners of the meeting on December 9, 2013. Last, the association lists as an undisputed fact that on December 9, 2013, the unit owners passed all the proposed amendments (except for two) by a super-majority vote, and the amended bylaws and declaration were thereafter filed in the conveyance records of Orleans Parish.

We disagree, and find that there remains in dispute a genuine issue of material fact as to the validity of the vote and subsequent amendment to the association’s bylaws.

The original bylaws of the association state in regard to proxy ballots:

Section 2.10 Proxies. A vote may be cast in person or by proxy. Such proxy may be granted by any Unit Owner in favor of only another Unit Owner, a Mortgagee or the Declarant. Proxies shall be duly executed in writing, shall be valid only for the particular meeting designated therein and must be filed with the Secretary before the appointed time of the meeting. Such proxy shall be deemed revoked only upon actual receipt by the person presiding over the meeting of notice of revocation from any of the persons owning such Unit. Except with respect to proxies in favor of a Mortgagee, no proxy shall in any event be valid for a period in excess of one hundred and eighty (180) days after the execution thereof.

|sThe document submitted by the association that purports to be a proxy is defective in two ways. First, there is no meeting date set forth; and, second, there is no language assigning the unit owner’s vote to another person.

The association argues that Section 2.10 of the bylaws does not require the proxy to designate the meeting on the face of the ballot. We disagree. The text clearly states that the proxy “shall be valid only for the particular meeting designated therein.” The alleged proxy does not contain a meeting date on its face, or . anywhere else in the document.

The association also argues that the ballots were validly granted in favor of a Board member by each unit owner. We have carefully reviewed, the purported proxy ballot and can find no language which would effectively transfer a unit owner’s vote to any other unit owner, a mortgagee or the declarant, as required in the current bylaws. The only instructional language contained in the ballot is as follows:

The following ballot options represent proposed revisions, amendments and additions to the By-laws, Declarations and/or Articles of Harbor Homeowner Association, Inc. For each of the proposed revisions, amendments and additions, an affirmative vote of 80% of the homeowners is required. Signed ballots are intended to be collected by February 8, 2013, or at least until some or all of the amendments pass. It is very important to return your ballot by February 8, 2013,- in order to prepare the operating budget for 2013. Thank you in advance for your time and consideration to this matter.

These ballots'are what the association argues constitute valid proxies used to tabulate the votes at the December 9, 2013 meeting. The written ballots do not qualify as a proxy pursuant to the association’s existing bylaws.

| ¡^Accordingly, we find that summary judgment was inappropriate as there remains a genuine issue of material fact as to whether legal votes were cast to amend the association’s bylaws.

Answer to Appeal

Defendants have answered the appeal seeking to reverse and modify the award of attorney fees and costs awarded to plaintiffs on November 19,2016, relative to plaintiffs’ writ of mandamus. Plaintiffs have also raised as an issue for review the amount of attorney fees and costs awarded. We find that defendants and- plaintiffs have forfeited their rights to appeal this issue, as their requests are not timely.

It is well-settled that an appeal of a writ of mandamus is a final, appealable judgment. Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 16-0566 (La.App. 4 Cir. 12/14/16), 206 So.3d 1029, 1032, writ denied, 17-0083 (La. 2/24/17), 216 So.3d 59, 2017 WL 944282; ANR Pipeline Co. v. Louisiana Tax Comm’n, 01-2594 (La.App. 1 Cir. 3/20/02), 815 So.2d 178, 186, n. 5; Authement v. Larpenter, 97-1985 (La.App. 1 Cir. 5/15/98), 713 So.2d 718, 719, n. 3; see Revere v. Kelley, 26,073, p. 2 (La.App. 2 Cir. 9/21/94), 643 So.2d 255, 256.

As neither party timely appealed the ruling of November 19, 2015, we deny relief on this issue. .

For the foregoing reasons, we affirm the trial court’s award of attorney fees and costs, affirm the trial court’s finding that Michael George can vote as a unit owner and serve on the board of the association, and reverse the trial court’s finding that the association’s bylaws were properly amended and effective as of ImDecember 23, 2013. This matter is remanded for further proceedings in accordance with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

      . David Wells is not named in the amended petition.

      . The opposition and exhibits were proffered.


author: Judge Paula A. Brown

text:
    Donyale Williams ALLUMS v. Cedrick Leland ALLUMS
    NO. 2017-CA-0021
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 31, 2017
    Cedrick Leland Allums, 12057 Sally Hin-chen Rd., Hammond, LA 70401 DEFENDANT/APPELLANT/IN PROPER PERSON
    (Court composed of Judge Joy Cossich Lobrano, Judge Regina Bartholomew Woods, Judge Paula A, Brown)
   Judge Paula A. Brown

11 This matter involves a child custody dispute. The pro se devolutive appeal of the father, Cedrick L. Allums, contends that the trial court erred in its interim judgment of June 19, 2014, which awarded the mother sole custody of their two minor children and limited him to supervised visitation. The judgment gave the parties the right to modify its terms after a period of six months. For the reasons that follow, we dismiss the appeal as moot.

FACTS/PROCEEDINGS BELOW

The mother, Donyale Williams Allums, filed a counseled petition for divorce on January 21, 2010. The petition alleged Mr. Allums and she had two children. A default judgment of divorce was entered on April 14, 2011. On May 28, 2014, Ms. Allums filed a Petition For Protection From Abuse With Order of Protection and a Petition To Establish Custody. In response to the Order of Protection, Mr. Allums filed a reconventional demand, seeking protection from the mother. The trial court conducted a hearing on the custody and protective order issues on June 17, 2014. Both parties were self-represented at the hearing.

1 .Ms. Allums testified she sought protection from Mr. Allums because of his constant harassment. According to Ms. Al-lums, Mr. Alums wanted to reclaim her as his wife, but she rebuffed his reconciliation attempts. As a result of her rejection, Mr. Allums constantly called her, left voicemail messages, and sent her e-mails. Ms. Al-lums claimed he contacted her employer, her mother, and her pastor. He also sent letters in which he referenced her as a slut and a whore. Ms. Allums urged the trial court to award her custody because she was employed and could provide stability for their children.

Mr. Allums countered Ms. Allums was a proven liar. He stated she was cited with filing a false police report in 2008. Mr. Allums suggested conspiracies against male authority caused the trial court judge to be biased, against him. He accused the judge of a lack of impulse control and asserted she prohibited his free speech.

Notably, Mr. Allums did not confirm whether or not he was employed. He claimed he was waiting on his union electrician card. Mr. Allums also failed to provide a permanent address. He testified he had lived in homeless shelters and in his car. He acknowledged Ms. Allums had brought the children to visit him under the Lakefront Bridge.

At the end of the trial, the trial court accredited Ms. Allums’ testimony. The interim judgment, without prejudice to either party, granted Ms. Allums sole custody of the children and Mr. Allums supervised visitation at the Orleans Parish Sheriffs Harmony House. The judgment provided either party could bring a rule to modify its terms after a period of six months.

|aMr. Allums timely filed a devolutive motion for appeal on July 17, 2014, which was signed by the trial court. Mr. Allums requested a waiver of court fees.

The record was lodged in this Court on January 9, 2017. Mr. Allums filed his brief on February 21, 2017.

DISCUSSION

The underlying issue presented by Mr. Allums’ appeal is whether the trial court abused its authority in awarding the mother interim sole custody and in limiting him to supervised visitations. However, before we can address the merits, this Court must first consider whether the present appeal presents an existing justiciable controversy over which this Court has subject matter jurisdiction.

When all of the legal controversies arising from a judgment become moot, an appellate court effectively lacks jurisdiction as there is no subject matter on which the judgment can operate. Joseph v. Ratcliff, 2010-1342, p. 7 (La.App. 1 Cir. 3/25/11), 63 So.3d 220, 225. The justiciable controversy must normally exist at every stage of the proceeding, including appellate stages. Id. Any judicial pronouncement after the controversy lapses is an impermissible advisory opinion. Id.

An appellate court may, on its own motion, as a matter of judicial economy, order the dismissal of a suit where all the issues presented have become moot. Cory v. Cory, 43,447, p. 6 (La.App. 2 Cir. 8/13/08), 989 So.2d 855, 859-860. case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief. Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601, p. 8 (La. 10/20/98), 720 So.2d 1186, 1193.

Here, the interim judgment, entered on June 19, 2014, gave both parties the right to modify its terms after six months. Mr. Allums’ jurisdictional statement represented he waited until 2016 to attempt modification. He alleged the trial court denied his motion to modify custody on May 13, 2016. Thereafter, on November 14, 2016, he averred the trial court denied his motion to establish custody, granted the mother sole custody, and placed him under another order of protection. This Court, sua sponte, made additional inquiry to determine if the trial court indeed rendered subsequent custodial decrees. Our review verified Mr. Allums filed a Rule To Modify Custody on April 11, 2016. The trial court denied the rule on May 13,2016. Mr. Allums filed a follow-up Petition For Custody on October 31, 2016. The trial court also denied that petition on November 15, 2016 and granted sole custody to Ms. Alums.

The record before us does not reflect why it took nearly two and a half years for Mr. Allums’ appeal to be lodged in this Court. Mr. Allums complains in his appellate brief the Clerk of Court of the district court may have caused the delay. However, regardless of the reasons for the delay, under the facts and circumstances of this case, the end result is still the same—the appeal is now moot.

As a matter of law, Mr. Allums’ devolu-tive appeal did not suspend the June 19, 2014, interim judgment. The judgment remained executory. During the pendency of this appeal and before the record was lodged, Mr. Allums petitioned |fithe trial court on two separate occasions to modify the interim child custody decree; and as referenced herein, the trial court denied his requests for relief. Consequently, after six months lapsed and the other custodial decrees were subsequently rendered, this Court could no longer offer Mr. Allums any relief from the interim custody judgment.

In Jaume v. Jaume, 410 So.2d 289 (La. App. 4 Cir. 1982), the appellate court found an appeal taken from a judgment dismissing the father’s rule for permanent custody and awarding the mother temporary custody would be dismissed as moot where a subsequent judgment granted the father temporary custody. Similarly, in the present matter, when Mr. Alums returned to the trial court after six months had lapsed to modify the terms of the interim judgment and obtained judgments on his petitions, the present appeal became moot. The May 13, 2016 and November 15, 2016 custody decrees effectively superseded the June 19, 2014 interim judgment, the only judgment presently before this Court on appeal. Accordingly, any decree from this Court affirming or reversing the interim judgment would serve no useful purpose and amount to no more than an impermissible advisory opinion. See Joseph, 2010-1342 at p. 7, 63 So.3d at 225.

| «CONCLUSION

Based on the foregoing reasons, this Court lacks subject matter jurisdiction over this appeal. Accordingly, Mr. Allums’ appeal is dismissed as moot.

APPEAL DISMISSED

      . Separately, the trial court denied Mr. Al-lums’ reconventional demand for a protective order and granted Ms. Allums a civil order of protection.

      . Mr. Allums’ appeal constituted a devolutive appeal as La. C.C.P. art. 3943 provides an appeal from a judgment awarding custody, visitation, or support does not suspend execution of the judgment.

      . The record does not show any formal response to the fee waiver request. The record also does not reflect service of the notice of appeal on Ms. Allums.

      . Mr. Allums’ appellate brief did not contain any notice of service on Ms. Allums.

      . The record does not show Mr. Alums appealed these judgments.

      . The trial court also extended a protective order in favor of Ms. Allums on the same date.

      . Even if this Court .did not dismiss Mr. Alums’ appeal as moot, the appeal was not ripe for review. Rule 2-14.1, Uniform Rules, Courts of Appeal, requires service of all papers filed in this Court on all parties or counsel of record in compliance with La. C.C.P. art, 1313. Rule 2-14.2 requires a certificate verifying the method of service on all parties and counsel of record, The record contains no evidence to show compliance with the service requirements of either rule,


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Cynthia DENT v. Genevieve Willis DENT and State Farm Insurance Company
    NO. 2016-CA-1010
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 31, 2017

      JOHN E. MCAULIFFE, JR., FREDERICK A. MILLER & ASSOCIATES, 3850 North Causeway Boulevard, Suite 1700, Metairie, Louisiana 700Ó2, Counsel for Defendants/Appellees
    SIDNEY L. SHUSHAN, JONATHAN M. SHUSHAN, SIDNEY L. SHUSHAN, A.P.L.C., 1010 Common Street, Suite 2720, New Orleans, Louisiana 70112, Counsel for Plaintiff/Appellant
    (Court composed of Chief Judge James F. McKay III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   JAMES F. MCKAY III, CHIEF JUDGE

1,111 this negligence action, the plaintiff, Cynthia Dent, appeals the district court’s granting of an exception of prescription in favor of the defendants, Genevieve Willis Dent and State Farm Fire and Casualty Company, and the dismissal of her claim. We affirm.

FACTS AND PROCEDURAL HISTORY

On April 20, 2014, Cynthia Dent stepped into a hole covered by a green outdoor carpet in the backyard of the home of Genevieve Willis Dent, located at 1314 St. Roch Street in New Orleans. This accident happened following Easter Sunday lunch.

Following the accident, Cynthia Dent saw a doctor on Tuesday, April 22, 2014. She presented at the doctor with complaints of a swollen and painful big toe on her left foot; she .also thought she may have had a sprained ankle. The doctor took x-rays and diagnosed her with a broken left foot.

On April 23, 2015, Cynthia Dent filed a petition for damages against Genevieve Willis Dent and her insurer, State Farm Fire and Casualty Company. | ?F oil owing some discovery, Genevieve Willis Dent and State Farm filed a peremptory exception of prescription on March 31, 2016. A hearing on the exception was held on May 27, 2016. On June 15, 2016, the trial court issued a judgment and reasons for judgment granting State Farm’s exception of prescription. However, this judgment was deficient because it failed to mention Genevieve Willis Dent and because it failed to contain decretal language. Therefore, counsel for the defendants after consultation with counsel for plaintiff, filed a motion to amend judgment by consent on June 23, 2016. Thereafter, the trial court issued an amended judgment on July 22, 2016, which granted the exception of prescription on behalf of both defendants and dismissed the lawsuit. It is from this judgment that Cynthia Dent now appeals.

DISCUSSION

In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Davis v. Hibernia National Bank, 98-1164 (La.App. 4 Cir. 2/24/99), 732 So.2d 61. When evidence is received on the trial of the peremptory exception of prescription, the factual conclusions of the trial court are reviewed by the appellate court under the manifest error-clearly wrong standard as articulated in Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993). If the findings are reasonable in the light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it | swould have weighed the evidence differently. Carter v. Haygood, 2004-0646, p. 9 (La. 1/19/05), 892 So.2d 1261, 1267.

In the instant case, Cynthia Dent’s claims for injury due to negligence are delictual actions subject to the liberative prescription of one year. La. C.C. art. 3492. Ordinarily, “prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Bailey v. Khoury, 04-0620, 04-0647, 04-0684, p.10 (La. 1/20/05), 891 So.2d 1268, 1276 citing Campo v. Correa, 2001-2707, p. 11 (La. 6/21/02), 828 So.2d 502, 510. “A prescriptive period will begin to run even if the injured party does not have actual knowledge of the facts that would entitle him to bring a suit as long as there is constructive knowledge of the same.” Campo, supra at p. 12, 828 So.2d at 510. An injured party has constructive notice when he or she possesses information sufficient to incite curiosity, excite attention, or put a reasonable person on guard to call for inquiry, and includes knowledge or notice of everything to which that inquiry might lead. Id. The ultimate issue is the reasonableness of the plaintiffs action or inaction in light of his education, intelligence, and the nature of the defendant’s conduct. Id.; Bailey, 04-0620, 04-0647, 04-0684, p. 10, 891 So.2d at 1276.

In the case sub judice, since the plaintiff filed her first lawsuit more than one year after her accident and injury, her claims are prescribed on their face. See Dominion Exploration, Inc. v. Waters, 2007-0386, 2007-0287 (La.App. 4 Cir. 11/14/07), 972 So.2d 350; Turner v. Hidden Lake, LLC, 2014-0240 (La.App. 4 Cir. 3/4/15), 163 So.3d 66; writ denied, 2015-0641 (La. 5/22/15), 171 So.3d 253. Her accident occurred on April 20, 2014, but she did not file her lawsuit until April 23, 2015.

The plaintiff attempts to overcome the effects of the dne year prescriptive period by invoking the principle of contra non valentem. Contra non valentem, an exception to the rule of prescription, is only applicable where one of four circumstances is present. In Bayou Fleet, Inc. v. Bollinger Shipyards, Inc., 2015-0487, 2015-0702 (La.App. 4 Cir. 7/21/16), 197 So.3d 797, our Court articulated these four circumstances as follows:

... (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the plaintiff from availing himself of his cause of action; (3) where the defendant himself has done some act effectually to prevent the plaintiff from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendants.

Id. at 806, quoting Wells v. Zadeck, 2011-1232, pp. 8-9 (La. 3/30/12), 89 So.3d 1145, 1150.

However, the plaintiff has not presented any facts or evidence to show that any of the four circumstances enumerated above are present in the instant case. The argument made by the plaintiff in this case is similar to the argument made by the plaintiff in Alvarez v. Southeast Commercial Cleaning, 2013-0657 (La.App. 5 Cir. 2/26/14), 136 So.3d 329. In that case, the plaintiff claimed that the doctrine of contra non valentem extended the prescriptive period because she did not initially know the full extent of her injuries. In determining that the doctrine was not inapplicable, the Fifth Circuit stated: “Even if she did not know the extent of the injury she had sustained as a result of her fall, she was surely aware on the date of her fall (January 30, 2011) that she had sustained some type of damage in the incident causing her to seek medical attention.” Id. at 337. The same is true in the instant case. Cynthia Dent was aware of the date she stepped into the hole (April 20, 2014) and knew that the incident caused her to seek medical attention (she thought she might have sprained her ankle). Accordingly, she is unable to invoke the doctrine of contra non valentem in this instance.

CONCLUSION

For the above and foregoing reasons, we affirm the district court’s maintaining the peremptory exception of prescription in favor of the defendants, Genevieve Willis Dent and State Farm Fire and Casualty Company, and the dismissal of the claim of the plaintiff, Cynthia Dent.

AFFIRMED