text:
    BURGESS, INC. v. PARISH OF ST. TAMMANY
    2017 CA 0153
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: OCTOBER 25, 2017
    Rehearing Denied November 29, 2017

      Glen R. Gailbraith, Hammond, Louisiana, Attorney for Plaintiff/Appellant, Burgess, Inc.
    Kelly M. Rabalais, Angel L. Byrum, Ronald S. Hagan, Mandeville, Louisiana, Attorneys for Defendant/Appellee, St. Tammany Parish Government
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

| j>This is an appeal by Plaintiff, Burgess, Inc. (Burgess),-of an order dismissing its claims against St. Tammany Parish (the Parish) on grounds of abandonment. For the reasons set forth below, we affirm the trial court.

FACTS AND PROCEDURAL HISTORY

Burgess is the owner of several tracts of unimproved and residential property in Cypress Park subdivision (Cypress Park) in Lacombe, Louisiana. Cypress Park was developed in the 1950’s, but many lots remain undeveloped and owned by Burgess. Burgess claims that as other subdivisions were developed in the area, drainage problems were created for Cypress Park. The area where Cypress Park is located has experienced drainage and flooding problems for decades. In 2004, in order to improve the drainage, the Parish dug canals, many of which were dug across lots owned by Burgess. Burgess asserts that the Parish did not have its permission to dig the canals across its property and did not expropriate the property. After the Parish dug the canals, the federal government changed the flood maps for the subdivision, causing it to be harder to develop land in the subdivision. Additionally, part of the subdivision was designated a “flood-way,” meaning that only structures which did not impede the flow of water, such as those on stilts, could be built. The Parish then put a moratorium on new construction in Cypress Park due to drainage issues, which was renewed every six months until November 2010. Burgess filed suit on January 27, 2005, which was amended twice, and sought damages from the Parish for an inverse condemnation and public taking of property, loss of opportunity to sell the lots, expenses to obtain surveys and drainage studies, and other damages. The Parish denied liability.

It is undisputed that formal discovery requests were.last served and filed in the record on February 3, 2012. The record does not contain answers to this discovery by the Parish, nor a motion to compel by Burgess. The Parish filed an Rex parte motion and order of abandonment on March 1, 2016, alleging that abandonment took place by operation of law pursuant to La. C.C.P. art. 561. The trial court signed an order of dismissal for abandonment, dismissing the suit without prejudice, on March 7, 2016, Thereafter, Burgess filed a motion to set aside dismissal, attaching a multitude of correspondence and documents. On September 8, 2016, the trial court held a hearing on the motion to set aside dismissal, and after taking the matter under advisement, denied that motion. The trial court issued written reasons for the denial, and signed a' judgment in accordance therewith on September 13, 2016. It is from this judgment that Burgess appeals.

ASSIGNMENT OF ERROR

' Burgess asserts that the trial court erred in holding that the suit was abandoned, and in refusing to set aside its dismissal for abandonment.

LAW AND DISCUSSION

Abandonment

The controlling provision in this case, La. 0.0.?. art. 661, provides, in pertinent part: '

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, ....
(3) This provision shall be, operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the'order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(4) A motion to set aside a dismissal may ' be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to |4Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
(5)An appeal of an order of dismissal .may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial,

The underlying policy of the abandonment article seeks to prevent protracted litigation that is filed for purposes of harassment or without a serious intent to hasten the claim to judgment. Abandonment is not a punitive measure, but is designed to discourage frivolous lawsuits by preventing plaintiffs from letting them linger indefinitely. Wilkerson v. Buras, 2013-1328 (La. App. 1 Cir. 8/12/14), 152 So.3d 969, 974, writ not considered, 2014-2138 (La. 11/26/14), 152 So.3d 894.

Because dismissal is the harsh, the law favors and justice requires that an action be maintained whenever possible so that the aggrieved party has his day in court. Thus,- any action or step taken to move the case toward judgment should be considered! If the plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon his lawsuit, dismissal is not warranted. Wilkerson, 152 So.3d at 974.

Abandonment is self-executing; it occurs automatically with the passing of three years without a step being taken by either party. La. C.C.PÍ art. 561 (A)(1) and (3). Compensation Specialties, L.L.C. v. New England Mutual Life Insurance Company, 2008-1549 (La. App. 1 Cir. 2/13/09), 6 So.3d 275, 278, writ denied, 2009-0575 (La. 4/24/09), 7 So.3d 1200. Whether or not a step'in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. Hutchison v. Seariver Mar., Inc., 2009-0410 (La. App. 1 Cir. 9/11/09), 22 So.3d 989, 992, writ denied, 2009-2216 (La. 12/18/09), 23 So.3d 946, citing Brown v. Kidney and Hypertension Associates, L.L.P., 2008-0919 (La. App. 1 Cir. 1/12/09), 6 So.3d 258, 264. On the Mother hand, whether a particular act, if proven, precludes abandonment is a question of law that we review by simply determining whether the trial court’s decision was legally correct. Hutchison, 22 So.3d at 992, citing, Brown, 5 So.3d at 264.

Louisiana Code of Civil Procedure article 561 has been construed as imposing three requirements on plaintiffs. First, plaintiffs must take some “step” toward the prosecution of their lawsuit. A “step” is the taking of formal action intended to hasten the suit toward judgment, or the taking of a deposition, with or without formal notice. Second, the step must be taken in the proceeding, and, with the exception of formal discovery, the step must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period; sufficient action by either plaintiff or defendant will- be deemed a step. Tessier v. Pratt, 2008-1268 (La. App. 1 Cir. 2/13/09), 7 So.3d 768, 772, citing Clark v. State Farm Mutual Automobile Insurance Company, 2000-3010 (La. 5/15/01), 785 So.2d 779, 784.

There are two jurisprudential exceptions to the abandonment rule: (1) a plaintiff-oriented exception, based on contra non valentum, that applies when the failure to prosecute is caused by circumstances beyond the plaintiffs control; and (2) a defense-oriented exception, based on acknowledgement, that applies when, the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Wilkerson, 152 So.3d at 975, citing Clark, 785 So.2d at 784-85; Compensation Specialties, 6 So.3d at 279-80. With regard to the defense-oriented exception, the conduct or actions of the defendant which are inconsistent with the intent to treat a case as abandoned and which result in the waiver of the right to assert abandonment may occur either before or after the abandonment period has accrued and serves to recommence the abandonment period running anew. Hutchison, 22 So.3d at 994.

| ^Further, extrajudicial efforts, such as informal correspondence between the parties, have uniformly been considered insufficient to constitute a step, for purposes of interrupting or waiving abandonment. Compensation Specialties, 6 So.3d at 282.

The Parish asserts that even before this lawsuit was filed, it was attempting to resolve the drainage issues in Cypress Park. Gina Campo, the Chief Administrative Officer for the Parish, testified that as of November 1, 2004, the Parish had filed a hazard mitigation plan to obtain grant funding to address the drainage issues in Cypress Park. The flooding history was included in the grant -application: Furthermore, the Parish held a meeting regarding the grant application on March 31, 2005, four weeks prior to being served with the present lawsuit. The Parish asserts -that throughout the entire history of the parties, there were two objectives: settlement of the litigation and resolution of the drainage issues.

Burgess claims that within six months of the suit being filed in 2005, the Parish began work to correct the drainage problem. The Parish drew up a. set of seven detailed engineering drawings showing the plan to fix the damage caused. In 2009, the Parish applied for a federal grant to fund curative work in Cypress Park. Also in 2009, the Parish requested to purchase certain lots from.Burgess so it could construct additional drainage works. The Parish also obtained a jurisdictional determination (sometimes called a “wetlands determination” or “wetlands delineation”) from the Army Corps of Engineers, which was ultimately received in May 2011.

The Parish characterizes all of its actions as informal settlement negotiations and cites numerous cases that hold that informal settlement negotiations are insufficient to constitute a step for purposes of interrupting or waiving abandonment. See Chevron Oil Co. v. Traigle, 436 So.2d 530, 533 (La. 1983); Clark, 785 So.2d at 790; Louisiana Dep’t. of Trans. & Dev. v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La. 12/6/11), 79 So.3d 978, 982-83. Burgess maintains that there were numerous actions of the Parish that were either a step in the prosecution of the lawsuit or that the Parish waived its right to plead abandonment. Burgess asserts that the Parish’s actions were not settlement negotiations, but an acknowledgment that the Parish was indebted to Burgess and characterizes the Parish’s actions as an unconditional tender of performance, just as in Clark. We must review the actions of both parties during the three-year abandonment period, beginning February 3, 2012, to determine if any step was taken sufficient to interrupt the abandonment period. We must further determine if any post-abandonment actions of the Parish were sufficient to waive abandonment.

Actions of the Parties During the Abandonment Period

On June 14, 2012, counsel for Burgess met with Parish officials to discuss issues from the litigation. Notes from the meeting indicate that the Parish was planning to make drainage improvements in Cypress Park and that the Parish had requested FEMA to change the flood maps as part of the response to this suit. At the time, the Parish was planning to apply for grant money to purchase some lots from Burgess to construct additional drainage work. When the grant fell through, the Parish decided that it would determine if it could fund and construct some of the drainage work with its own work crews.

Paul Carroll, who was a drainage engineer for the Parish, testified that he worked on two projects involving Cypress Park. One was the Cypress Bayou pond, which was constructed sometime in 2012 to benefit Cypress Park and other neighborhoods, and one was the Cypress Park drainage project, which was never constructed. The Cypress Park drainage project was to address flooding issues in Cypress Park that were not resolved by the Cypress Bayou pond. In December 2012, Carroll had a meeting with other Parish employees and representatives from IsFEMA and the Governor’s Office of Homeland Security and Emergency Preparedness pertaining to the Cypress Park drainage project and flood mapping.

In 2013, the Parish pursued the federal grant application and, in anticipation of the grant being approved, offered Burgess an agreement (the “Voluntary Participation Form”) where the Parish would purchase certain lots to construct the new drainage works. Burgess accepted and signed the Voluntary Participation Form on June 14, 2013, and returned it to the Parish. The Voluntary Participation Form specifies that the program is voluntary and dependent upon funding being authorized. It was not a final, binding agreement or unpondi-tional because Burgess was able to opt out of the program for payment at any time prior to the closing. In April 2013, the Parish grants coordinator offered to meet with local residents to explain the proposed drainage project.

On September 4, 2014, the Parish reported to counsel for Burgess that its engi- ■ neering department was at about 90% completion of the design phase of the drainage fix, and estimated the cost of the project to be $1.08 million. The Parish also indicated that an engineer was to design the subsurface drainage, which would replace the canals the Parish initially dug as claimed in the petition.

In January 2015, the Parish was still performing engineering work to address the drainage problems in Cypress Park and completed more engineering drawings. As of both August 12, 2015, and December 21, 2015, the Parish was going forward with the drainage improvements- in the area.

Leslie Bolner, an attorney for Burgess, testified that in 2014 and 2015, the Parish worked to have the federal government revise the flood maps and communicated regarding the flood maps with Burgess and its engineer. Burgess alleged in its First Supplemental and Amending Petition that its damages would include any reclassification of its property on federal flood maps.

[ ^Furthermore, during the three-year abandonment period, there'were numerous items of correspondence that were exchanged by the parties. On August 29, 2012, counsel for Burgess requested by email from the Parish a copy of the wetlands delineation. As the Parish was preparing for a hurricane, the Parish’s counsel directed her to the wetlands consultant hired by the Parish. Counsel for Burgess made this same request on November 26, 2012, and December 17, 2012. On December 18, 2012, the Parish counsel responded that another counsel was collecting the information requested. On January 2,2013, counsel for Burgess again emailed the Parish requesting the wetlands delineation from the Army Corps of Engineers.

Post-Abandonment Actions

Sometime in 2015, counsel for Burgess made an in-person request for the wetlands delineation during a meeting. Burgess ultimately obtained the wetlands delineation in March, 2016.

On March 5, 2015, the Parish issued its 2014 Annual Report and Stormwater Management Plan to the Louisiana Department of Environmental Quality indicating that the design phase of the Cypress Park drainage .project was complete with the acquisition of needed easements projected for 2015 and the construction projected to commence in 2016.

The July 31, 2015 budget for the Parish included a $100,000 provision to acquire easements and do design/study work to fix the drainage issues in Cypress Park. The Parish hired an outside surveyor to work on the Cypress Park drainage project, and the surveyor completed one set of surveys and drawings on August 7, 2015.

On September 1, 2015, Gina Campo, the Chief Administrative Officer for the Parish, approved the budgeting for servitude acquisition for the Cypress Park drainage project. On September 2, 2015, the Parish Engineering Department |inrequested approval to spend $950,000 to correct the problems in Cypress Park, and the approval was granted on December 21, 2015.

On January 20, 2016, the Parish was hiring a surveyor to get a more complete survey for the design. In December 2015 and January 2016, the Parish discussed the hiring of the surveyor, an outside consultant to work on the Cypress Park drainage project.

Step in the Prosecution

Under La. C.C.P. art. 561, a party takes a “step” in the prosecution or defense of a suit when he takes formal action, before the court and on the record, intended to hasten the matter to judgment. City of Baton Rouge/Par. of E. Baton Rouge v. Smuggy’s Corp., Inc., 2014-0134 (La. App. 1 Cir. 10/16/14), 156 So.3d 202, 205. Burgess claims that it made multiple requests for information which were tantamount to formal discovery and prevented abandonment, relying on Louisiana Dep’t of Transp. & Dev. v. Bayou Fleet, Inc., 2009-1569 (La. App. 1 Cir. 4/28/10), 37 So.3d 1066, 1075, (Bayou Fleet I) writ granted, judgment rev’d sub nom. Louisiana Dep’t. of Transp. & Dev. v. Bayou Fleet, Inc., 2010-1215 (La. 7/2/10), 39 So.3d 585, (Bayou Fleet II) and writ denied, 2010-1003 (La. 7/2/10), 39 So.3d 587. At issue.in Bayou Fleet I was whether correspondence between the parties concerning repair costs that the plaintiff had incurred were formal discovery. The defendant requested documentation of the plaintiffs expenses. This court held that such correspondence was not served on all parties as required by Article 561 to prevent abandonment, Bayou Fleet I, 37 So.3d at 1075. Thé Supreme Coprt reversed finding that • the correspondence was tantamount to formal discovery of requests for production of documents, “[g]iven the unique facts and circumstances” of the case. Bayou Fleet II, 39 So.3d at 586, Although the Supreme Court did not elaborate on what those facts' and circumstances were, there was an agreement between- the parties that DOTD would not take any adverse action Inagainst Bayou Fleet without providing thirty days written notice, which was not done. Bayou Fleet I, 37 So.3d at 1073

Bayou Fleet II does not stand for the proposition that correspondence between the parties requesting documents is formal discovery acting as a step in the prosecution. Guillory v. Pelican Real Estate, Inc., 2014-1539 (La. 3/17/15), 165 So.3d 875, 878 n.3, specifically limited Bayou Fleet to its facts finding that informal settlement negotiations were not a step in the prosecution. See Jackson v. Moock, 2008-1111 (La. App. 1 Cir. 12/23/08), 4 So.3d 840, 844-45 (finding that informal discussions and correspondence scheduling depositions were insufficient to constitute steps in the prosecution of an action); Miles v. Suzanne’s Cafe & Catering, Inc., 2011-907 (La. App. 5 Cir. 3/27/12), 91 So.3d 1107, 1111 (finding that informal requests for documents from a defendant do not constitute formal discovery and are not steps in the prosecution of the action for purposes of La. C.C.P. art. 561). The correspondence at issue in, this case regards Burgess’s attempt to obtain a wetlands delineation. In Breaux v. Auto-Zone, Inc., 2000-1534 (La. App. 1 Cir. 12/15/00), 787 So.2d 322, 326, writ denied, 2001-0172 (La. 3/16/01), 787 So.2d 316, this court held that letters containing supplementary discovery responses did interrupt the abandonment period. However, in Diez v. State, Dep’t. of Transp. & Dev., 2009-1057, p. 4 (La. App. 1 Cir. 12/23/09), 2009 WL 4981278 (unpublished), writ denied, 2010-0912 (La. 4/5/10), 31 So.3d 368, this court held that correspondence merely referencing discovery matters, explaining the availability of witnesses for depositions, and discussing dates to schedule a conference to discuss discovery matters were insufficient to constitute a step for purposes of interrupting or waiving abandonment.

Breaux also distinguished Parson v. Daigle, 96-2569 (La. App. 1 Cir. 12/29/97), 708 So.2d 746, 748, where there was no formal discovery, but just a letter containing a question. Like Parson, the correspondence in this case | ^requesting the wetlands delineation is just a question. It is not in furtherance or in response to any previously sent discovery. The interrogatories filed on February 3, 2012, did not in any way refer to or involve the federal government and the wetlands delineation.

Burgess also relies on State, Dep’t. of Transp. & Dev. v. Cole Oil & Tire Co., 36, 122 (La. App. 2 Cir. 7/17/02), 822 So.2d 229, 233-34, on reh’g (Aug. 8, 2002), writ denied sub nom. State v. Cole Oil & Tire Co., 2002-2325 (La. 11/15/02), 829 So.2d 436, an action by DOTD to expropriate land. During the three-year period of alleged abandonment, the counsel for Cole Oil wrote to DOTD’s counsel requesting deposition dates, who responded he preferred to delay the depositions until after receiving Cole Oil’s answers to interrogatories. DOTD’s counsel also informed Cole Oil’s counsel by letter that DOTD’s appraiser was moving, to another state,and that another appraiser had asked to inspect the property, but was unable to gain access. Cole Oil’s counsel responded that she believed the new appraiser had. inspected the property and requested the results of the inspection. ■ The trial court determined that the totality of the circumstances in the case revealed that DOTD was involved and was participating in this proceeding during the three-year period as evidenced by its correspondence to Cole Oil seeking responses to interrogatories before scheduling depositions and by its substitution of appraisers and subsequent inspection of the property. In addition, there was absolutely no evidence in the record that Cole Oil ever intended to abandon this action.

In addition, the trial court noted that the counsel for both parties were in communication on a consistent basis, addressing a matter .which presented - continuing changes and difficulties, the moving of Cole Oil’s pump and other facilities that were too close to the road. After receiving a cost estimate, the parties then learned that moving the pumps would place them too close to the | ^railroad tracks on the back of the property, which required obtaining additional cost information. During this time, apparently, Cole Oil was in danger of going out of business. The trial court recognized that counsel for Cole Oil and DOTD were actively seeking solutions to the problems presented in the case and stated, “we find that to dismiss-this case as abandoned would fly in the face of the well-established policy considerations underlying the abandonment doctrine.” Cole Oil, 822 So.2d at 234.

Duplechian v. SBA Network Services, Inc., 2007-1554 (La. App. 3 Cir. 5/7/08), 2008WL2545280 (unpublished), distinguished Cole Oil noting that the correspondence before it did not constitute discovery of any kind. The correspondence inquired about the status of a proposed investigation into the contents of a computer and the status of a planned review of the computer’s hard drive. In Moore v. Eden Garden Nursing Ctr., 37,362 (La. App. 2 Cir. 6/25/03), 850 So.2d 998, 1001, the court also distinguished Cole Oil and held that a letter to follow up prior discovery did not constitute a specific discovery-action or a waiver of abandonment.

Here,, the request for a wetlands delineation and the responses 'as to where to obtain the document did not constitute discovery. Burgess never requested the wetlands delineation in formal discovery and these facts are more similar to those in Duplechian. This court has stated that “mere ‘contact’ with opposing counsel is insufficient to prevent abandonment of an action. A litigant must take some ‘step’ in the prosecution or defense of the case in the trial court that hastens the case toward judgment.” Brown, 5 So.3d at 267. In Hutchison, 22 So.3d at 996, the court reversed and ordered the dismissal be set aside because it found that the defendant had taken steps to “hasten the matter to trial and judgment.” None of the contact in this, case between the parties .was a step to hasten the case to | ^judgment. Therefore, nothing relied upon by Burgess was a. step in the prosecution to interrupt the three-year abandonment period.

Waiver of Right to Plead Abandonment by Tacit Acknowledgment

Finding that no step in the prosecution occurred to interrupt the three-year abandonment period, we must now determine if the defense-oriented exception based on acknowledgment applies by taking into account the actions of the Parish either before or after the abandonment period accrued. See Hutchison, 22 So.3d at 994. Burgess relies on Clark, 785 So.2d at 792, claiming that during the three-year abandonment period, the Parish made a tacit acknowledgment by performing acts of reparation or indemnity, making an unconditional payment, or lulling Burgess into believing the Palish would not contest liability, thereby interrupting the accrual of abandonment. Burgess claims that the Parish’s acts of cooperation with it in order to find a drainage solution and the attempt to purchase the originally affected lots were evidence of acts of reparation. Burgess points to the (1) engineering designs and drawings that took place; (2) the budgeting by the Parish to repair the drainage problems in Cypress Park; (3) the hiring of an outside surveyor who completed a survey and drawings; (4) the Parish’s offer to buy certain lots (which was never completed after the Parish failed to receive a grant); and (5) the Parish’s work to change the FEMA flood maps. Burgess argues that all the work, budgeting, planning, design, and offer to purchase lots by the Parish were acts of reparation or an unconditional partial performance resulting in a tacit acknowledgement.

The Parish asserts that its duties include addressing drainage problems whether there is litigation or not. It further claims that it is trying to find a solution to the drainage problems in the Cypress Bayou area, not just one neighborhood.

Waiver by acknowledgement can occur before the accrual of the abandonment period and cause the period to begin anew. Clark, 785 So.2d at 789. The issue in Clark was whether the defendant’s pre-abandonment, unconditional tender pursuant to statute was sufficient conduct to constitute a waiver. The Supreme Court recognized that “extrajudicial efforts,” such as informal settlement negotiations between the parties are insufficient to constitute a step for purposes of interrupting abandonment. Clark, 785 So.2d at 790-91. However, an acknowledgment is “a simple admission of liability resulting in the interruption of prescription that has commenced to run, but not accrued, and may be made on an informal basis.” Clark, 785 So.2d at 792, quoting Lima v. Schmidt, 595 So.2d 624, 634 (La. 1992) (emphasis added). Furthermore, “[a] tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing that he will not contest liability.” Clark, 785 So.2d at 792, quoting Lima, 595 So.2d at 634 (emphasis added).

Burgess asserts that since a request for proposed scheduling dates was held to be an acknowledgment sufficient to waive abandonment in Hutchison, the Parish’s actions of engineering, planning, permitting, and budgeting should be more sufficient than a single letter to constitute an acknowledgment. This court, specifically stated in Hutchison that the case did “not involve an attempt to use informal correspondence between the parties to demonstrate that a step in the prosecution of the case has occurred that is sufficient to interrupt or waive abandonment.” Hutchison, 22 So.3d at 996. Instead, the defendant specifically requested proposed dates for pre-trial scheduling deadlines and a plaintiff responded by submitting a signed scheduling order on a form required by the trial court. The intent and purpose behind the actions of both parties was that a “scheduling order be entered to hasten the matter to trial and judgment.” Hutchison, 22 So.3d at 996.

l1fiWe note some instances when an acknowledgment has been found. A defendant’s monthly payments of workers’ compensation benefits and medical expenses were deemed an acknowledgment and thus a continuing waiver of the right to plead abandonment. Sterling v. Insurance Co. of Pennsylvania, 572 So.2d 835, 837 (La. App. 4 Cir. 1991). See also, Young v. Laborde, 576 So.2d 551, 552-53 (La. App. 4 Cir. 1991) (finding no abandonment where defendant was vigorously prosecuting reconventional demand). The action of defense counsel in sending a letter to plaintiffs counsel requesting dates for a scheduling order were within the acknowledgment exception to the abandonment rule. Hutchison, 22 So.3d at 995-96. The issuing of payments sent directly to health care providers of an injured plaintiff were held to be made unconditionally and thus constituted tacit acknowledgment of the plaintiffs claim sufficient to waive its right to assert the action was abandoned. Boudreaux v. Simoneaud Grocery & Mkt., Inc., 2007-511 (La. App. 3 Cir. 12/19/07), 972 So.2d 440, 443.

We find no facts here similar to any of the above cases. We agree with the trial court that even though there was engineering design work, surveys, and meetings that took place during the abandonment period, none of these resulted in an acknowledgment by the Parish. Furthermore, as to the offer to purchase the lots, it is undisputed that no purchase ever took place due to lack of grant funds. In any event, this was nothing more than informal settlement negotiations with regard to the litigation of the lots, which is insufficient to constitute a step to interrupt or waive abandonment. Clark, 785 So.2d at 790. The trial court noted that even the attorneys for Burgess distinguished the litigation of the lots where the canals were dug from the overall drainage problems. The trial court recognized that “the Parish has exclusive authority and responsibility for drainage in unincorporated parts of the Parish.” Furthermore, the Parish engineer at the time of the hearing established that the resolution of Cypress Park’s drainage li7problems would proceed regardless of whether there was any litigation. The informal meetings and exchanges of information were insufficient to constitute an ac-knowledgement by the Parish.

Post-Abandonment Waiver of Right to Plead Abandonment

Unlike a plaintiff, whose post-abandonment actions cannot serve to revive an abandoned action, a defendant’s post-abandonment actions can serve to waive his right to plead abandonment. Whether the defendant’s action occurred before or after the abandonment period elapsed is a distinction without a difference. The timing of a defendant’s conduct cannot be logically construed as altering its character insofar as whether it is sufficient to constitute a waiver of abandonment. Logic dictates that the same standard should apply regardless of whether the action occurred before or after the abandonment period elapsed. Wilkerson, 152 So.3d at 975, citing Clark, 785 So.2d at 789; Satterthwaite v. Byais, 2005-0010 (La. App. 1 Cir. 7/26/06), 943 So.2d 390, 393.

This court has specifically stated:

This waiver exception to Article 561, however, has been applied only where, after the abandonment period has accrued, a defendant has taken steps that facilitated the judicial resolution of the dispute on the merits and were an expression of the defendant’s willingness or consent to achieve judicial resolution of the dispute. Thus, the following post-abandonment actions by a defendant have been found to constitute a waiver: submission of a case for decision, participation in a status conference and signing a case management schedule, and the filing of an answer and reconventional demand. Porter v. Progressive Specialty Ins. Co., 99-2542 (La. App. 1st Cir. 11/8/00), 771 So.2d 293, 295. Furthermore, an insurer’s unconditional tender to a plaintiff to satisfy the statutory requirement of [La.] R.S. 22:658(A)(1), even though of an informal nature, has been held to constitute a waiver, Clark, 785 So.2d at 789 n. 15 and at 791. Other examples of post-abandonment conduct by defendants that have been held sufficient to waive abandonment include seeking security for costs and provoking or responding to discovery. Clark, 785 So.2d at 789 n. 15.
By comparison, a defendant’s participation in post-abandonment settlement negotiations was found to reflect the defendant’s intent to achieve a non-judicial resolution of the dispute, which, by definition, did not constitute a waiver of the right to plead | ^abandonment. Porter, 771 So.2d at 295. This ruling is in conformity with the jurisprudence that has held that extrajudicial efforts, such as informal settlement negotiations between the parties, are insufficient to constitute a step for purposes of interrupting or waiving abandonment. Clark, 785 So.2d at 790; Succession of Wright, 37,670 (La. App. 2nd Cir. 9/24/03), 855 So.2d 926, 929, writ denied, 03-2969 (La. 1/16/04), 864 So.2d 632.

Satterthwaite, 943 So.2d at 393-94 (footnotes omitted). See also, Wilkerson, 152 So.3d at 975.

For the Parish to have waived abandonment, after the abandonment period accrued, it would have had to take steps that facilitated a judicial resolution of the dispute on the merits and be an expression of its willingness or consent to achieve a judicial resolution of the dispute. Smuggy’s Corp., 156 So.3d at 205; Wilkerson, 152 So.3d at 975; Satterthwaite, 943 So.2d at 393. Although the Parish did engage in designing, budgeting, and hiring a consultant after the abandonment period accrued, none of the activities by or correspondence of the Parish constitute a step to facilitate a judicial resolution of this dispute. Therefore, the Parish did not waive its right to assert abandonment due to any- of its, post-abandonment actions.

CONCLUSION

For the above and foregoing reasons, the trial court’s September 13, 2016 judgment denying the Motion to Set Aside Dismissal is affirmed. All costs of this appeal are assessed against Burgess, Inc.

AFFIRMED.

      . A dismissal of an action on the grounds of abandonment may only be made without prejudice. See Argence, L.L.C. v. Box Opportunities, Inc., 2011-1732 (La. App. 4 Cir. 5/23/12), 95 So.3d 539, 541.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    STATE of Louisiana v. Tracy P. DASPIT
    NO. 2016 CA 1522
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017

      WARREN L. MONTGOMERY, DISTRICT ATTORNEY, MATTHEW CA-PLAN, ASSISTANT DISTRICT ATTORNEY, COVINGTON, LA, ATTORNEYS FOR STATE OF LOUISIANA
    DAVID R. PADDISON, COVINGTON, LA, ATTORNEY FOR DEFENDANT-APPELLEE TRACY P. DASPIT
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   PETTIGREW, J.

■lain this case, the State of Louisiana challenges the trial court’s August 4, 2016 order granting defendant’s motion for ex-pungement. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On February 25, 2016, defendant, Tracy P. Daspit, filed a Motion to Set Aside Conviction and Dismiss Prosecution and a Motion for Expungement relative to his October 1, 2013 conviction for driving while intoxicated, first offense. On the front of the Motion to Set Aside Conviction and Dismiss Prosecution, there is a stamp by the St. Tammany Parish District Attorney’s Office dated March 3, 2016, indicating opposition to same. The following handwritten notation is included: “Per C.Cr.P. Article 977D(2), expungement of a misdemeanor DWI shall occur only once during a 10-year period. This defendant had a misdemeanor DWI expunged on or about 10/15/08 under docket #389285.” Said notation appears to be signed by Assistant District Attorney Bruce G. Dear-ing.

The trial court heard arguments on the Motion to Set Aside Conviction and Dismiss Prosecution on April 5, 2016, after which the trial court granted said motion. On May 20, 2016, the District Attorney for the Parish of St. Tammany, appearing on behalf of the State of Louisiana, filed an Affidavit of Response, again setting forth the State’s position that pursuant to Article 977D(2), defendant was not entitled to an expungement in this case because of his prior expungement in 2008.

The Motion for Expungement proceeded to hearing on August 4, 2016. After considering the arguments of the parties, the trial court granted the motion for expungement, stating:

All right. Still have questions in my mind as to the eligibility, only because of the 10 year cleansing period and the date in which it commences, based upon the prior plea and expungement thereof. I’m going to grant the motion to ex-pungement. But I’m not going to pass judgment on whether the department is going to honor that order. It may be an issue that needs to [be] addressed through [the] 19th Judicial District Court, in their venue, to determine whether that is going to be a successful order, and their expungement of the record.

|sThe trial court signed the Order of Ex-pungement of Arrest/Conviction Record on August 4, 2016, but did not check the boxes on the form judgment regarding the specific relief that was granted in the proceeding.

On August 30, 2016, the State filed a Motion for Suspensive Appeal and for Designation of Record, requesting that “a copy of the court record under docket number 389285” be included in the record on appeal. Defendant opposed this motion. Thereafter, on September 13, 2016, the trial court signed the order of appeal providing that the record on appeal would include “the proceedings designated in the foregoing Motion for Appeal.” Defendant subsequently filed a Motion to Suppress the Record, arguing that the records from docket number 389285 had been expunged, and therefore, were confidential and not allowed to be produced under any exceptions under the law. This matter was set for hearing on November 3, 2016, at which time the trial court informed the parties that due to the matter being on appeal, the motion would be continued without date.

This court issued a rule to show cause order on November 21, 2016, advising the parties that the August 4, 2016 judgment lacked specificity. The matter was remanded to the trial court for the limited purpose of allowing the trial court to sign an amended judgment to cure the defects in same. On December 1,2016, the trial court corrected the order of expungement by specifically checking the applicable boxes on the judgment. The record herein was supplemented with the corrected judgment on December 6, 2016.

Thereafter, on August 16, 2017, this court issued an order remanding the matter to the trial court for the limited purpose of conducting a hearing on the motion to suppress that had previously been continued without date. The trial court heard the motion on September 7, 2017, and, denying the motion to suppress, noted as follows:

I struggle with what to do here, but I think in an abundance of caution to give the Court of Appeal the benefit of all information I am going to deny the Motion to Suppress the Record. ... At least now they ... can look at it and try to come up with a decision one way or the other I don’t care.

14Thus, the record in this case was again supplemented, this time with a copy of the record of the proceedings from St. Tammany Parish bearing docket number 389285 (“Exhibit 1”).

SUPPLEMENTATION OF RECORD

At the outset, we must address the supplementation of the appeal record with Exhibit 1. Although the way by which Exhibit 1 has found its way into the appeal record is somewhat convoluted, what is clear from our review of the record below is that Exhibit 1 was not filed in any of the trial court proceedings below, and therefore, did not become part of the trial court record. This court can neither supplement the record with nor consider on appeal documents that were not introduced or filed into the record during the proceedings below. See White v. West Carroll Hosp., Inc., 613 So.2d 150, 154 (La. 1992). As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Niemann v. Crosby Development Co., L.L.C., 2011-1337, p. 7 (La. App. Cir. 5/3/12), 92 So.3d 1039, 1044. The material in Exhibit 1 is not the supplementary material envisioned by La. Code Civ. P. articles 2088 or 2132, which authorize supplementation of the record by stipulation of the parties, by the trial court, or by order of the appellate court. These articles permit the correction of evidence or the furnishing of omitted evidence that was actually introduced or filed into the trial court record. Strawn v. Superfresh, 98-1624, p. 3 n.2 (La. App. 1 Cir. 9/24/99), 757 So.2d 686, 688 n.2. Thus, while the trial court granted the State’s motion for designation of the record on appeal, which included a request for Exhibit 1, and subsequently denied defendant’s motion to suppress Exhibit 1 thereby allowing the appeal record to be supplemented with Exhibit 1, we have no authority to consider Exhibit 1 as it was not filed into the record below as evidence.

MOTION FOR EXPUNGEMENT

The sole issue for our review in this appeal is whether the defendant was entitled to the expungement granted by the trial court on August 4, 2016. Citing La. Code Crim. P. art. 977D(2), the State argues that the trial court’s judgment is erroneous because it was rendered less than 10 years after the last expungement defendant received in 2008 |sfor a prior misdemeanor DWI offensp. In response, defendant argues the State’s objection to the motion for expungement was untimely pursuant to La. Code Crim. P. art. 980, and thus, the expungement was properly granted.

The rules for expungement of records are set forth in La. Code Crim. P. arts. 971, et seq. Pursuant to Article 977D(2), “Expungement of a record of arrest and conviction of a misdemeanor offense of operating a vehicle while intoxicated shall occur only once with respect to any person during a ten-year period.” Moreover, the code provides for service instructions in La. Code Crim. P. art. 979 as ■ follows:

A. The clerk of court shall serve notice of the motion of expungement by United States mail or electronically upon the following entities:
(1) The district attorney of the parish • of conviction.
(2) The Louisiana Bureau of Criminal Identification and Information.
(3) The arresting law enforcement agency.
B. When service is made by United States mail, a certificate of service shall be' filed into the record indicating the date thé motion was placed in the United States mail for service.

At the expungement hearing, defendant’s counsel argued that the State’s Affidavit of Response, which was filed on May 20, 2016, was untimely because the motion for expungement had been “filed and served on the district attorney’s office as well as, according to the clerk, the Louisiana Bureau of Criminal Identification and Information, on or about February 23rd.” Defendant’s argument on appeal as to the timeliness of the State’s objection to the motion for expungement does not mention the service date of the motion on the district attorney’s office. Rather, defendant asserts that the Affidavit of Response'was untimely because it was filed after the “granting of the ex-pungement” on April 6, 2016. We find no merit to either of these arguments.

| ¡/There is nothing in the record to support defendant’s claim that the parties were actually served with the motion for expungement on February 23, 2016. In fact, the motion to set aside conviction and dismiss prosecution and the motion for expungement were not filed with the clerk of court until February 26, 2016. The only evidence in the record concerning service of process by the clerk of court’s office appears in the record following the Order of Expungement of Arrest/Conviction Record. According to same, service was requested on the district attorney, the Louisiana Bureau of Criminal Identification and Information, the arresting agency, the sheriff, defendant’s attorney, and the clerk of court. The following language is included in the Certificate of Service by the Deputy Clerk of Court for St. Tammany Parish: “Pursuant to LA CCrP Article 979, I hereby certify that I have served the foregoing Order of Expungement to the named entities as listed above on this 20th day of May, 2016, by: Placing in U.S. Mail.” Therefore, if service was only made on the parties on May 20, 2016, and the State’s Affidavit of Response was filed on the same date, May 20, 2016, defendant’s timeliness argument fails.

However, our inquiry does not end here. We turn now to a discussion of whether the trial court was authorized to grant defendant’s motion for expungement. As argued by the State, defendant had obtained expungement for another misdemeanor DWI offense less than 10 years prior to this proceeding and, therefore, was not entitled to have this arrest/conviction record expunged.

As previously indicated, when defendant originally filed his Motion to Set Aside Conviction and Dismiss Prosecution and a Motion for Expungement, the State, through the district attorney’s office, opposed the motion with the following handwritten notation dated March 3, 2016: “Per C.Cr.P. Article 977D(2), expungement of a misdemeanor DWI shall occur only once during a 10-year period. This defendant had a misdemeanor DWI expunged on or about 10/15/08 under docket #389285.” Similarly, at the expungement hearing, defendant’s counsel seemed to acknowledge the prior expungement, stating, “This defendant had a misdemeanor DWI -expunged on or about- 2008, which related to a 2005 conviction.” Thus, as defendant already had his arrest/conviction record ex-pungedjjfor a misdemeanor DWI offense in 2008, it appears clear that pursuant to Article 977D(2), he was not entitled to the expungement granted herein by the trial court on August 4, 2016. .

We note an additional argument made by the State below concerning the additional requirements set forth in La. Code Crim. P. art. 984 for the expungement of a record involving a DWI. The State maintained that none of these requirements were complied with by defendant in the instant ease, and thus, objected to the expungement.

Article 984 provides as follows:

A.A person convicted of operating a vehicle while intoxicated shall be required to: supplement the motions required in this Title with proof in the form of a certified letter from the Department of Public Safety and Corrections, office of motor vehicles, that the person has complied with the requirements of this Article. The certified letter shall be attached to the motion to expunge the record of arrest and conviction for operating a-vehicle while-intoxicated.
B. The court shall order the clerk of court to mail to the Department of Public Safety and Corrections, office of motor. vehicles, all of the following as provided by the defendant:
(1) A certified copy of the record of the plea of guilty.or nolo contendere.
(2) Fingerprints of the defendant.
(3) Proof that the defendant meets the requirements as set forth in Article 556 or 556.1 of this Code which shall include the defendant’s date of birth, social security number, and driver’s license number.
C. An additional fifty-dollar court cost shall be assessed at this time against the defendant and paid to the Department of Public Safety and Corrections, office of motor vehicles, for the costs of storage and retrieval of the records. The court cost provided by this Paragraph shall be submitted to the department regardless of whether the clerk of court is submitting this matter to the department pursuant to Paragraph B or D of this Article,
D. In lieu of forwarding the items listed in Paragraph B of this Article, the clerk of court may send a copy of the letter issued by the department pursuant to Subparagraph (B)(1) of Article 894 if the clerk had previously submitted records of the plea to the department pursuant to that Article.

We find no evidence in the record before us that any of these requirements were met. Article 984 clearly states that a person convicted of DWI- shdll be required to supplement the motion to expunge with a certified letter that he has complied with requirements of the article. This language is mandatory and does not allow for any Isdiseretion by the trial court. See La. Code Civ. P. art. 5053. Accordingly, ex-pungement was not proper herein as these statutory requirements were not satisfied by defendant.

CONCLUSION

For the above and foregoing reasons, we reverse the August 4, 2016 Order of Ex-pungement and Arrest/Conviction Record signed by the trial court. All costs associated with this appeal are assessed against defendant, Tracy P. Daspit.

REVERSED.

Guidry, J. concurs

Crain, J. concurs

      . While defendant refers to the action taken by the trial court on April 5, 2016, as the "granting of the expungement,” we note that what the trial court actually signed on April 5, 2016, was not the order of expungement, but rather an order of dismissal, setting aside defendant's conviction and dismissing the prosecution pursuant to La, Codo Crim. P. art.894B.


author: HIGGINBOTHAM, J. Holdridge J.,

text:
    The LOUISIANA DEPARTMENT OF JUSTICE and Jeff Landry, in his official capacity as Attorney General for the State of Louisiana v. John Bel EDWARDS, in his official capacity as Governor of the State of Louisiana
    NO. 2017 CA 0173
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 01, 2017

      Elizabeth Baker Murrill, Wilbur L. Stiles, III, Angelique D. Freel, Baton Rouge, LA, Attorneys for Plaintiffs-Appel-lees, the Louisiana Department of Justice and Jeff Landry, in his official capacity as Attorney General for the State of Louisiana
    Matthew F. Block, Megan K. Terrell, Donald W. Price, Mary Olive Pierson, Baton Rouge, LA, Attorneys for Defendant-Appellant, John Bel Edwards, in his official capacity as Governor of the State of Louisiana
    Christopher T. Victory, Shreveport, LA, Attorney for Intervenors, Hon. Beryl A. Amedee, et al.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

12This appeal centers on an Executive Order issued by the Governor of the State of Louisiana and challenges the legal authority and discretion of two elected state officials, the Governor and the Attorney General, relating to anti-discrimination language included in all state services, state contracts, and employment by the state.

FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. On April 13, 2016, Governor John Bel Edwards issued Executive Order No. JBE 2016-11 (“Executive Order”), concerning “EQUAL OPPORTUNITY AND- NON-DISCRIMINATION” in all state services, all employment by the state, and all state contracts for the purchase of services. The Executive Order specifically required that, effective July 1, 2016, all state contracts for the purchase of services must include a provision that the contractor shall not discriminate on the basis of “race, color, religion, sex, sexual orientation, gender identity, national origin, political affiliation, disability, or age” of the persons seeking such contracts or in any matter relating to employment. The Executive Order further directed all “state agencies, departments, offices, commissions, boards, entities, or officers of the State of Louisiana, or any political subdivision ... to cooperate with the implementation of the provisions” of the Executive Order. In accordance with the Executive Order, the Division of Administration, through the Office of State Procurement, began notifying contractors of the need to revise all professional services contract documents, including legal service contracts, to comply with the new anti-discrimination provision by adding the terms “sexual orientation” and “gender identity” so that the contracts could be reviewed and/or approved.

1 ¡¡Shortly after the Executive Order was issued, a group of state legislators requested that the Attorney General for the State of Louisiana, Jeff Landry, issue a formal opinion addressing the validity and enforceability of the ■ Executive Order. The legislators were concerned because proposed anti-discrimination legislation that had been intended to expand the protected groups of individuals to- include “gender identity” had repeatedly failed to pass during legislative sessions for several years prior to the issuance of the Executive Order. The Attorney General issued an opinion on May 24, 2016, concluding that the Executive Order had no binding or legal effect since there was no constitutional or statutory provision in Louisiana that banned discrimination on the basis of “gender identity.” The Attorney General stated that the Executive Order exceeded the Governor’s authority to see that state laws are faithfully executed and enforced by attempting to create new legislation in violation of the separation of powers. Consequently, the Attorney General refused to approve various state agency requests for the appointment of private legal counsel if the proposed state contracts included the term “gender identity” in the anti-discrimination provision.

The Governor filed a separate mandamus action seeking an order for the Attorney General to approve a number of pending state contracts, but that action was denied on the grounds that the Attorney General had discretion in the state contract approval process. No appeal was taken in that action; therefore, the issues in the mandamus action are not ■ currently before us. However, because the conflict remained concerning the impasse over approval of private legal counsel contracts, the Attorney General instituted the current litigation pertinent to this appeal.

In a petition for injunctive relief and for a declaratory judgment filed against the Governor on October 20, 2016, thé Attorney General, as the executive head and chief administrative officer of the Louisiana Department of Justice, requested the district court to declare that the Executive Order was invalid and to enjoin any ^implementation or. enforcement of the Executive Order. A group of state legislators filed a petition for intervention joining and asserting the same claims as the Attorney. General regarding the question of which branch of state government has the' constitutional authority to add “gender identity” as a protected class under Louisiana’s anti-discrimination laws. In response, the Governor filed a reconventional demand for injunctive relief and declaratory judgment, seeking to have the Executive Order declared valid and insisting that the Executive Order does not create new law, does not conflict with current law,' and was a lawfully issued policy directive relating to the issuance of state contracts and state employment in the executive branch of government. The Governor also requested that the district court define the role and authority of the Attorney General with regard to legal proceedings and the approval of private legal counsel for the state and its agencies, departments, boards, and commissions. The Attorney General filed several exceptions to the Governor’s recon-ventional demand, asserting objections. on the grounds of res judicata, no cause of action, and prematurity.

The parties agreed to proceed to an expedited trial on the exceptions and the merits on November 29, 2016. The district court considered the law, evidence, and arguments of all counsel before denying all of the Attorney General’s exceptions and granting the Attorney General’s request for permanent injunctive and declaratory relief, enjoining the mandatory adoption and implementation of the Executive Order. The district court declared that the Executive Order constituted an unlawful ultra-vires . act because it created new and/or expanded upon existing Louisiana law as opposed to directing a faithful execution of the existing laws, of Louisiana, which was the sole purpose for the issuance of the Executive Order. The | ^district court further declared that the Executive Order was a violation of the Louisiana Constitution’s separation of powers doctrine and an unlawful usurp of the constitutional authority vested only in the legislative branch of government.

As for the Governor’s reconventional demand, the district' court declared that the law permits the Attorney General’s involvement in the appointment of private legal counsel to state agencies, boards, and commissions, but the Attorney General’s authority does not extend to the review of the retention of private legal counsel to assert claims on behalf of the state, and the Attorney General’s actions may not supersede the actions of private legal counsel once appointed, except for cause. The district court also found that the drafters of the Louisiana Constitution intended for the office of the Governor to be superior to the office of the Attorney General within the executive branch of state government, but the district court declined to issue an advisory opinion as to which of the state officers would prevail in any given dispute that could possibly arise between them. Written , reasons were issued by the district court on December 14, 2016, and a judgment was signed accordingly on January 3, 2017. The Governor filed an appeal and the Attorney General answered the appeal.

ASSIGNMENTS OF ERROR

The Governor assigns the following specifications of error for our review: (1) the district court erred in finding that the Governor had exercised legislative powers in issuing the Executive Order; (2) the district court erred in failing to limit the Attorney General’s involvement with the appointment of private legal counsel to represent state entities; and (3) the district court erred in failing to recognize that the Attorney General has limited authority to appoint private legal counsel to represent the state.

|flFour assignments of error are raised in the Attorney General’s answer to the Governor’s appeal: (1) the district court erred in denying the Attorney General’s exceptions; (2) the district court erred in declaring that the Attorney General may hot supersede actions of private legal counsel except for cause once counsel is appointed to represent a state entity; (3) the district court erred in declaring that the Attorney General cannot review retention of outside legal counsel once appointed; and (4) the district court erred in declaring the Governor is superior to' the Attorney General within the executive branch of government after determining there was no justiciable controversy.

DISCUSSION

The ‘main issues in the appeal and answer to appeal concern the validity of the Executive Order, as well as the extent of the Governor’s and the Attorney General’s respective authority. Such questions of law are reviewed de novo, as they involve statutory interpretation. See Thibodeaux v. Donnell, 2008-2436 (La. 5/5/09), 9 So.3d 120, 122-23; Crowe v. Bio-Medical Application of Louisiana, LLC, 2014-0917 (La. App. 1st Cir. 6/3/16), 208 So.3d 473, 483, writ denied, 2017-0502 (La. 5/12/17), 219 So.3d 1106. The Governor maintains that the Executive Order is merely an important anti-discrimination policy statement related to state contracts and employment services within the executive branch of government, and that nothing prohibits the Governor from establishing policy through an Executive Order that does not conflict with existing law. The Attorney General and intervenors contend that the Governor acted outside of his lawful powers in issuing the Executive Order, which unconstitutionally usurped the constitutionally granted power of the Legislature.

The Louisiana Constitution divides the powers of government into three separate branches: legislative, executive, and judicial. La. Const, art. II, § 1. Our constitution further provides that no branch may exercise power belonging to ^another. La. Const, art. II, § 2. The legislative power of the state rests exclusively in the Legislature. La. Const, art. II, § 1; La. Const, art. III, § 1; Hill v. Jindal, 2014-1757 (La. App. 1st Cir. 6/17/15), 175 So.3d 988, 1006, writ denied, 2015-1394 (La. 10/23/15), 179 So.3d 600. The Governor has constitutional authority, as chief executive officer of the state, to see that all laws of the state and the United States are faithfully executed, and nothing prohibits the Governor from establishing policy through Executive Orders. See La. Const.- art. IV, § 5(A); La. R.S. 49:215(A). However, the limited power of the Governor to issue Executive Orders does not inherently constitute authority to exercise the legislative lawmaking function. See Louisiana Hospital Ass’n v. State, 2013-0579 (La. App. 1st Cir. 12/30/14), 168 So.3d 676, 687, writ denied, 2015-0215 (La. 5/1/15), 169 So.3d 372. See also P. Lamonica & J. Jones, 20 La. Civ. L. Treatise, Legis. Law & Proc. § 8:1, n. 2 (2016).

The Governor’s Executive Order in this case goes beyond a mere policy statement or a directive to fulfill law, because there is no current state or federal law specifically outlining anti-discrimination laws concerning and/or defining sexual orientation or gender identity. The current laws simply prohibit discrimination based on a person’s biological sex. Louisiana Constitution Article I, Section 3, provides that no person shall be denied the equal protection of the laws and that no law shall “arbitrarily, capriciously, or unreasonably discriminate against a person 1 «because of birth, age, sex, culture, physical condition, or political ideas or affiliations.” Similarly, Louisiana law concerning intentional discrimination in employment declares it unlawful for an employer to engage in discrimination because of a person’s “race, color, religion, sex, or national origin.” See La. R.S. 23:332. Clearly, the Louisiana Legislature and the people of the State of Louisiana have not yet revised the laws and/or the state Constitution to specifically add “sexual orientation” or “gender identity” to the list of protected persons relating to discrimination. Further, there is no binding federal law or jurisprudence banning discrimination on the basis of sexual orientation or gender identity. Thus, we agree with the district court that the Governor’s Executive Order constituted an unconstitutional interference with the authority vested solely in the legislative branch of our state government by expanding the protections that currently exist in anti-discrimination laws rather than directing the faithful execution of the existing anti-discrimination laws of this state.

Having found the Governor’s Executive Order invalid, we conclude that the district court did not err in permanently enjoining the mandatory adoption and implementation of the Executive Order. The remainder of the Governor’s and the Attorney General’s assignments of error are mooted by our affirmation of the district court’s ruling concerning the Exedutive Order, because the evidence reveals that the Attorney General’s actions in approving or disapproving state contracts concerning the employment of private legal counsel revolved exclusively around the inclusion of the disputed anti-discrimination language. Once the controversial language is removed and not an issue, we find no- evidence that a justiciable controversy remains. It is well settled that courts will not decide abstract, hypothetical, or moot controversies and will not render advisory opinions with respect to such controversies. Louisiana Associated General Contractors, Inc. v. State, Through Div. of Admin., Office of State Purchasing, 95-2105 (La. 3/8/96), 669 So.2d 1185, 1193.

We decline to issue an advisory opinion as to the Attorney General’s authority and involvement in approving the employment of private legal counsel to. represent the interests of the state when there is. no evidence that such an opinion is ripe for review. It was legal error for the district court to go beyond the declaration and injunction stating that the Governor’s Executive Order could not be implemented. See Jordan v. Louisiana Gaming Control Board, 98-1122 (La. 5/15/98), 712 So.2d 74, 85. Therefore, we affirm that portion of the district court’s judgment granting the Attorney General’s declaratory judgment declaring the Governor’s Executive Order unconstitutional, as it exceeds the authority of the Governor and is a violation of the separation of powers doctrine. We further affirm that portion of the judgment granting the Attorney General’s request for injunctive relief and permanently enjoining the Governor, or anyone acting on his behalf, from the mandatory adoption and implementation of the Executive Order. We vacate all other portions of thé district court’s judgment for the reasons cited above.

CONCLUSION

The district court’s judgment is affirmed in part and- vacated in part. All appellate costs in the amount of $4,732.50 are assessed equally between the Governor and the Attorney General in their official capacities for the State of Louisiana.

AFFIRMED IN PART AND VACATED IN PART.

Holdridge J.,

concurs in the result. I agree that the executive order is overly broad and is certain limited circumstances, it may extend additional protection to certain individuals not currently permitted by the constitution, legislation, or jurisprudence.

      . The anti-discrimination provision was not required for - contracts involving a religious corporation, religious association, religious educational institution, or religious society.

      . Intervenors are fifteen duly-elected Louisiana State Representatives: Beryl A. Amedee, Lawrence A. Bagley, Phillip R. DeVillier, Rick Edmonds, Raymond E. Garofalo, Jr., Lance Harris, Cameron Henry, Dodie Horton, Frank A. Howard, Mike Johnson, Blake Miguez, Jay Morris, Clay Schexnayder, Alan Seabaugh, and Julie Stokes.

      . After this Court ex proprio motu issued a rule to show cause concerning our jurisdiction, we maintained this appeal in a separate action on May 1, 2017, finding that the Governor’s Executive Order was not a "law or ordinance” that would warrant the Louisiana Supreme Court's direct review as provided in La. Const, art, V, § 5(D). See Benelli v. City of New Orleans, 474 So.2d 1293, 1294 (La. 1985).

      . Louisiana courts have looked to federal jurisprudence to interpret Louisiana discrimination laws. King v. Phelps Dunbar, L.L.P., 98-1805 (La. 6/4/99), 743 So.2d 181, 187. See also Martin v. Winn-Dixie Louisiana, Inc., 132 F.Supp.3d 794, 811 (M.D. La. 2015).

      . While recognizing that federal law prohibits discrimination on the basis of sex, at least one federal court has held that a person who alleges employment discrimination on the basis of sexual orientation has put forth a case of sex discrimination for Title VII (the Civil Rights Act of 1964) purposes. See Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 351-52 (7th Cir. 2017). Other federal courts have held that persons with gender identity disorders, including those discharged from employment because they were transsexuals, did not have claims cognizable under Title VII, because "sex” means discrimination on the basis of the person’s biological sex. See Oiler v. Winn-Dixie Louisiana, Inc., 2002 WL 31098541, *6 (E.D. La. 2002). The United States Supreme Court has yet to make such a ruling and the meaning of the word "sex” in Title VII has never been clarified legislatively. See Id. at *4. Nevertheless, we note that federal law provides the familiar list of protected categories found in Louisiana’s counterpart to Title VII: “race, color, religion, sex, or national origin[.]” See 42 U.S.C. § 2000e-2(a) and La. R.S. 23:332.

      . "[A] declaration of rights must be refused if 'the issue presented to the court is academic, theoretical, or based upon a contingency which may or may not arise.” Jordan, 712 So.2d at 85, quoting Tugwell v. Members of the Board of Highways, 228 La. 662, 83 So.2d 893, 899 (1955) (on rehearing).


author: McCLENDON, J.

text:
    Ricky PATRICK, BY AND THROUGH Glenn PATRICK his Agent v. J. PATRICK, INC. MACHINE, PUMP & FABRICATION, Melisa Patrick and Dale Patrick
    2017 CA 0050
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 01, 2017

      John F. Jakuback, William L. Caugh-man, III, Michael J. deBarros, R. Devin Ricci, Baton Rougé, LA, Counsel for Plaintiff/Appellee ' ■ Ricky Patrick, By and Through Glenn Patrick His Agent
    John B. Brumfield, Jr., Baton Rouge, LA, Counsel for Defendants/Appellants J. Patrick, Inc., Machine, Pump & Fabrication, Melisa Patrick and Dale Patrick
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. .
   McCLENDON, J.

lain this appeal, the defendants contest a trial court judgment that found them in contempt of court for failing to turn -over certain business records to the plaintiff, a shareholder of the defendant corporation. The judgment also ordered that the defendants allow the plaintiff’s counsel and expert to enter onto the defendant corporation’s premises to review its business records. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter arises out of and is a continuation of a fight for control of a family-held corporation that has resulted in the filing of multiple lawsuits, several of which have been before this Court. With regard to this latest suit, on November 7, 2014, the plaintiff, Ricky Patrick, by and through his agent, Glenn Patrick, filed a Petition for Writ of Mandamus against J. Patrick, Inc., Machine, Pump & Fabrication (J. Patrick Machine), Melisa Patrick, and Dale Patrick, alleging that he sought to examine, as a shareholder of J. Patrick Machine, through his certified public accountant, the corporate records of J. Patrick Machine, and that the defendants not only refused to provide the requested records, but threatened the plaintiff with arrest should he set foot on the premises of J. Patrick Machine. The plaintiff therefore requested that a writ of mandamus issue requiring the defendants to allow the plaintiff and/or his agents to inspect all books and records of J. Patrick Machine.

After the judges of the Eighteenth Judicial District Court recused themselves, an ad hoc judge was appointed to handle the matter. Following a hearing on July 13, 2015, the trial court signed a Stipulated Judgment on Petition for Writ of Mandamus on August 11, 2015, wherein the plaintiffs petition for a writ of mandamus was granted and the defendants were ordered to provide the requested information. Additionally, the trial court limited disclosure of the records to plaintiffs counsel and expert.

Thereafter, on September 15, 2015, the plaintiff filed a motion to hold the defendants in contempt of court for failing to comply with the court’s order and requesting penalties until they complied with the order. According to the plaintiff, on September 3, 2015, counsel for the defendants provided a CD with the records listed in lahis letter of that date, but that, while some of the corporate records of J. Patrick Machine were provided, none of the financial records of the company were provided.

At the hearing on the motion for contempt, held on November 30, 2015, the parties entered into another stipulation. This stipulation was on the record and read in open court, in which the defendants agreed to produce the requested financial records, including “electronic files such as Quickbooks wherever those records are available.” Thereafter, the defendants did produce some records, but rather than providing the electronic files, they exported the information into an Excel spreadsheet, which the plaintiff contends eliminates the ability of the plaintiffs accountants to confirm the veracity of the information contained in the records.

After requesting the records in electronic format on two occasions and receiving no response from the defendants, the plaintiff filed a second motion for contempt on April 4, 2016. The hearing on the second motion for contempt was held on July 27, 2016, and the trial court again ruled in favor of the plaintiff. The trial court signed a judgment on August 19, 2016, granting the plaintiffs motion and finding the defendants in contempt of the court’s prior orders. The judgment also provided that the plaintiff was entitled to copy and inspect all QuickBooks files of J. Patrick Machine and that the plaintiffs counsel and expert could enter the business premises and copy all QuickBooks files of J. Patrick Machine in their native electronic format. The defendants were also assessed attorney fees in the amount of $500.00 plus the costs of filing the second motion for contempt. Lastly, the trial court limited disclosure of the records to counsel for the parties and the plaintiffs expert.

The defendants suspensively appealed and assert the folio-wing as error: ■

1. The trial court was manifestly erroneous and clearly wrong in finding J. Patrick Machine in contempt of court;
2. The trial court committed legal error in issuing an order compelling and requiring J. Patrick Machine, its president, and its secretary-treasurer to allow plaintiffs counsel and expert accountant to enter onto the premises of J. Patrick Machine and copy all QuickBooks files thereof in their native format; and
148. The trial court was manifestly erroneous and clearly wrong in failing to find that J. Patrick Machine had completely satisfied all the requirements of the writ of mandamus.

DISCUSSION

Contempt of court is defined in LSA-C.C.P. art. 221 as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” There are two types of contempt. A direct contempt is one committed in the immediate view and presence of the court and of which it has personal knowledge. LSA-C.C.P. art. 222. A constructive contempt of court is any contempt other than a direct one, including willful disobedience of any lawful judgment, order, mandate, writ, or process of the court. LSA-C.C.P. art. 224(2). See also LSA-C.C.P. art. 3785.

To find a person guilty of constructive contempt,.it is necessary to find that he or she violated the order of the court intentionally, knowingly, and purposely, without justifiable excuse. Charter School of Pine Grove, Inc. v. St. Helena Parish School Bd., 07-2238 (La.App. 1 Cir. 2/19/09), 9 So.3d 209, 224; Barry v. McDaniel, 05-2455 (La.App. 1 Cir. 3/24/06), 934 So.2d 69, 73. The trial court is vested with great discretion in determining whether a party should be held in contempt of court, and its decision will be reversed only when the appellate court discerns a clear abuse of that great discretion. Haydel v. Pellegrin, 07-0922 (La. App. 1 Cir. 9/14/07), 970 So.2d 629, 632.

In their appeal, the defendants maintain that LSA-R.S. 12:1-1601, et seq., of the Louisiana Business Corporation Act do not require the release of all data contained in the QuickBooks files in electronic format. They assert that, notwithstanding the requirements of the statutes, they provided financial statements beyond those required 15by law and were in full compliance with the records and documents requested by the plaintiff. The defendants also contend that the files of J. Patrick Machine, in their electronic format, contain financial data and other confidential commercial or private information, the disclosure of which would put J. Patrick Machine at a competitive disadvantage with its direct competitor Bayou Fabricators & Machine Works, Inc. Accordingly, the defendants maintain that the trial court’s order is overreaching, unreasonable, and wholly unjustified.

To the contrary, the plaintiff asserts that the defendants’ statutory arguments are- inapposite to the issues currently before the Court, as they have stipulated on two occasions to produce the corporate records of J. Patrick Machine. The plaintiff therefore maintains that the defendants’ stipulations are not subject to review.

Parties are bound by their stipulations regarding factual matters. Cordon v. Parish Glass of St. Tammany, Inc., 15-1078 (La.App. 1 Cir. 4/15/16), 195 So.3d 109, 112, writ denied, 16-0896 (La. 9/6/16), 205 So.3d 918. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court when it is not in derogation of law. Id. Such agreements are the law of the case. Mill Creek Homeowners Ass’n, Inc. v. Manuel, 04-1385 (La App. 1 Cir. 6/10/05), 916 So.2d 268, 269.

' The stipulated judgment, signed on August 11, 2015, provided that the defendants would provide the records of J. Patrick Machine “as requested by Plaintiffs in their Petition for Mandamus, and such other records as Plaintiffs’ experts ... may request.” That judgment was not appealed. Moreover, the transcript of the November 30, 2015 hearing clearly reflects the second stipulation and agreement of the parties:

[The Court]: You have a stipulation.
[Plaintiffs Counsel]: ... I believe the stipulation will be as follows: Within 15 days the defendants will produce an unredacted version of the records that they have previously provided.
Secondly, they will additionally provide the same types of records from 2012 forward, including up to date in 2015 to the extent those records exist. They will provide electronic files such as Quickbooks wherever those records are available.
And I believe that’s the extent of what we have discussed.
|fi[The Court]: You’re not going to hold [the defendants’ counsel] in contempt?
[Plaintiffs Counsel]: No, sir.
[Defendants’ counsel]: Your Honor, just for the record, the limitations on access to this information is [the plaintiff’s counsel] and [the plaintiffs expert].
[Plaintiffs Counsel]: Yes, sir, Your Hon- or. It was my understanding that the Judge’s previous order in this case is still; of course, in existence and does not go away by this stipulation.

(Emphasis added.)

Based on the defendants’ admissions and stipulations, we need not address whether the plaintiff was statutorily entitled to said documents or whether they had previously satisfied the requirements of the writ of mandamus. The defendants agreed to produce the requested materials and “provide electronic files such as Quick-books wherever those records are available.” Accordingly, we cannot say that the trial court abused its great discretion in finding the defendants in contempt of court for . their failure to produce same.

CONCLUSION

Based on the foregoing, we affirm the August 19, 2016 judgment of the trial court in favor of the plaintiff, Ricky Patrick, by and through his agent, Glenn Patrick, finding the defendants in contempt of court. Costs of this appeal are assessed to the defendants, J. Patrick, Inc., Machine, Pump & Fabrication, Melisa Patrick, and Dale Patrick.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 3785 provides:
      A person who fails to comply with a writ of habeas corpus, or with a judgment rendered after a hearing on a petition for a writ of habeas corpus, mandamus, or quo warranto may be punished for contempt. When a, sentence of imprisonment is imposed for contempt, imprisonment may continue until the defendant obeys the writ or judgment.


author: HOLDRIDGE, J.

text:
    VANGUARD VACUUM TRUCKS, L.L.C. v. MID-AMERICA RESOURCES CORPORATION
    2017 CA 0434
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 01, 2017
    Timothy C. Ellender, Jr., Houma, LA, Attorney for Plamtiff/Appellee, Vanguard Vacuum Trucks, L.L.C.
    Joseph P. Brantley, IV, Baton Rouge, .LA, and Stephen C. Hanemann, Zoe W. Vermeulen, New Orleans, LA, Attorneys for Defendant/Appellant, Mid-America Resources Corporation
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
   HOLDRIDGE, J.

Un this lawsuit on an open account, defendant, Mid-America Resources Corporation (Mid-America), appeals a summary judgment awarding plaintiff, Vanguard Vacuum Trucks, L.L.C. (Vanguard), the principal amount due on the account, finance charges, attorney’s fees, and costs of the proceeding. Mid-America filed a peremptory exception raising the objection of prescription for the first time in this court, to which Vanguard responded with a motion to supplement the record with evidence relating to the prescription objection. For the reasons that follow, we deny the motion to supplement the record and remand the matter to the district court to permit the parties to introduce evidence on the prescription objection.

FACTUAL AND PROCEDURAL BACKGROUND

On March 28, 2013, Vanguard filed a petition on an open account pursuant to La. R.S. 9:2781 et. seq. against Mid-America. Vanguard alleged that it maintained an open account with Mid-America and that Mid-America failed to pay the balance owed on the account. Vanguard further alleged that Mid-America was indebted to it in the principal amount of $31,574.00, together with finance charges in the amount of 18% per annum on all invoices 30 days past due, reasonable attorney’s fees, and costs of the proceeding. To the petition, Vanguard attached five invoices dated from July 31, 2008, through September 30, 2009, the affidavit of its president attesting to the correctness of the account, and a demand letter it wrote to Mid-America on January 23, 2012. After a preliminary default judgment was rendered against Mid-America, Mid-America answered the petition, essentially denying the allegations and setting fourth four affirmative defenses.

On July 11, 2016, Vanguard filed a motion for summary judgment, seeking to recover the amounts set forth in its petition. Vanguard later filed an amended Rmotion for summary judgment, to which it attached the affidavit of its president regarding the correctness of the account as “Exhibit A” and seven alleged past-due invoices, dated from July 31, 2008, through September 30, 2009, as “Exhibit B.”

A hearing on the amended motion for summary judgment was held, at which Mid-America failed to appear. Vanguard offered Exhibits A and B, the documents attached to its amended motion for summary judgment, in support of the motion. Finding thei’e was no genuine issue of material fact and that Vanguard was entitled to judgment as prayed for, the district court granted Vanguard’s motion for summary judgment. On December 22, 2016, the district court signed a judgment against Mid-America awarding Vanguard the sum of $31,574.00, finance charges in the amount of 18% per annum on all invoices 30 days past due, attorney’s fees equal to 15% of principal and interest, and costs of the proceeding.

From this judgment, Mid-America appeals, contending that summary judgment was improper for the following reasons: (1) service of Vanguard’s amended motion for summary judgment was defective because Vanguard sought to have Mid-America served through an attorney who was not counsel of record at the time; (2) the demand letter did not correctly set forth the amount owed, and thus, the attorney fee award was in error; and (3) the invoices did not indicate that there would be any finance charges for past due payments, making the award of finance charges improper. In response, particularly with respect to the third assignment of error, Vanguard concedes that it was not entitled to judgment for finance charges, noting that at the time the invoices in question were incurred, it did not specify finance charges due and owing on delinquent accounts. Thus, Vanguard asserts that the judgment should be amended by this court to remove the order for the payment of finance charges.

UMid-America also filed a peremptory exception raising the objection of prescription for the first time in this court. Therein, it asserts that Vanguard’s suit is subject to a three-year prescriptive period provided for in La. C.C. art. 3494(4), and that the lawsuit has prescribed because it was filed on March 28, 2013, more than three years after the date of the last invoice sued upon, September 30, 2009. Vanguard filed a motion to supplement the record to include, two cheeks written to it by Mid-America on May 9, 2011, and June 25, 2011, along with a May 13, 2011 accounts receivable open invoice report and an accounts receivable detail report from May 1, 2011 to June 30, 2011, referencing invoices issued to Mid-America. Vanguard insists this evidence demonstrates that prescription has been interrupted, making this lawsuit timely. Vanguard asks this court to order that the documents “be deemed admitted into evidence.”

Appellate review is limited to the record. La. C.C.P. art. 2164. This court cannot consider evidence submitted in connection with a peremptory exception filed for the first time in this court. Robinson v. Ieyoub, 97-2204 (La. App. 1 Cir. 12/28/98), 727 So.2d 579, 582, writs denied, 99-0933, 990981 (La. 9/17/99), 747 So2d 1096, 1097. The evidence offered by Vanguard in opposition to the prescription objection does not appear in the record, and this court may not consider it in ruling on Mid-America’s prescription objection. Accordingly, Vanguard’s motion to supplement the record is denied.

Louisiana Code of Civil Procedure article 2163 allows an appellate court to consider a peremptory exception filed for the first time in that court “if proof of the ground of the exception appears of record.” The only evidence in the record which could relate to prescription are the invoices introduced by Vanguard, all of which are dated more than three years from the date of the lawsuit. While the face of the invoices indicate that the lawsuit may be prescribed, Vanguard is entitled to ^demonstrate that a suspension, interruption, or renunciation of prescription has occurred. We believe that the interests of justice demand that we remand the matter to permit the parties to develop evidence on the prescription issue. See La. C.C.P. art. 2164; LeBlanc v. City of Donaldsonville, 2003-2533 (La. App. 1 Cir. 10/29/04), 897 So.2d 104, 108; Willett v. Premier Bank, 97-187 (La. App. 3 Cir. 6/4/97), 696 So.2d 196, 201.

CONCLUSION

For the foregoing reasons, the motion to supplement the record is cjenied. The case is remanded to the district court for proceedings consistent with this opinion. Costs of this appeal are to await a final determination in this matter.

MOTION DENIED; REMANDED


text:
    Patrick STRAUGHTER v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    2017 CA 0384
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 01, 2017
    Rehearing Denied December 14, 2017

      Patrick Straughter, Louisiana State Penitentiary, Angola, LA, Pro Se
    Terri L. Cannon, Legal Programs Department, Louisiana State Penitentiary, Angola, LA, Attorney for Defendant/Ap-pellee, Louisiana Department of Public Safety and Corrections
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
   HOLDRIDGE, J.

| ^Patrick Slaughter, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), appeals a judgment dismissing his petition for judicial review on the basis that the petition failed to state a cause of action or a cognizable claim for which relief is available in the district court. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Straughter, who had been tried on the charge of aggravated rape, was found guilty by a jury of the lesser included charge of forcible rape. Straughter was sentenced by the Criminal District Court for the Parish of Orleans to serve 40 years imprisonment at hard labor. Thereafter, Straughter pled guilty to a habitual offender bill and was sentenced by that court to 60 years imprisonment at hard labor.

In January 2015, Straughter filed administrative remedy procedure LSP-2015-0235, wherein he challenged the constitutionality of the forcible rape statute and the legality of the custody order under which he was imprisoned. Straughter insisted that the forcible rape statute is unconstitutionally vague because it does not inform a reasonable person that sexual intercourse with a person under the age of twelve is a crime in the State of Louisiana. He also argued that the forcible rape statute failed to provide a specific punishment guideline for offenders found guilty of having sexual intercourse with a victim under the age of twelve. Straughter contended that because the statute he was found guilty of violating is unconstitutional, the district court imposed an illegal sentence on him, thereby causing DPSC to illegally detain him under a void commitment. He demanded an “immediate release from his oppression.”

DPSC denied Slaughter’s request for relief at the first step for these reasons: (1) Straughter’s master prison record had been reviewed regarding the ^validity of his sentence, (2) Straughter had been validly committed to DPSC, and (3) Straughter’s sentence was within the parameter of the Habitual Offender Law. Slaughter’s request for relief was also denied at the second step on the basis that his concerns were adequately addressed by the first step response.

Straughter filed a petition for judicial review of the,administrative decision in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, in which he again attacked the constitutionality of the forcible rape statute and the legality of his detention. A commissioner assigned to review the appeal found that the petition failed to state a cause of action or cognizable claim for which relief is available in the district court and recommended that the matter be dismissed without prejudice. The commissioner noted that all of Straughter’s complaints challenged the validity of the indictment proceedings and ultimate sentence. The commissioner concluded that the district court lacked jurisdiction to hear the complaint as a civil proceeding, stressing that the proper procedure for Straughter to challenge his sentence was by a motion for post-conviction relief or an appeal of his sentence. The district court adopted the commissioner’s recommendation and reasons as its own in dismissing Straughter’s appeal without prejudice.

Straughter appealed, insisting that he is not challenging his conviction or sentence, but is challenging the DPSC’s authority to detain him. Again, Straughter submits that his detention is illegal because the forcible rape statute is unconstitutionally vague, and he contends that the failure of the district court to grant him declaratory relief constitutes a denial of his right to procedural due process.

LWe agree that DPSC and the district court lacked jurisdiction to grant Straughter’s demand for relief. Straughter is attempting to utilize the administrative remedy procedure to attack his conviction and the sentence imposed by an Orleans Parish Criminal District Court. However, it is well settled that prisoners may not use civil proceedings to collaterally attack previous criminal convictions. El-Mumit v. Fogg, 1988-0356 (La. App. 1 Cir. 9/28/17), 232 So.3d 590, 2017 WL 4310945; Williams v. Harding, 2012-1595 (La. App. 1 Cir. 4/26/13), 117 So.3d 187, 191. DPSC and the district court clearly had no authority to review the constitutionality of Straughter’s conviction and sentence and correct any error therein through the administrative remedy procedure. See Boddye v. La. Dept. of Corrections, 2014-1836 (La. App. 1 Cir. 6/26/15), 175 So.3d 437, 441-42, writ denied, 2015-1688 (La. 10/30/15), 180 So.3d 303. Therefore, the district court correctly dismissed Straughter’s petition for failing to state a cause of action or a cognizable claim for which relief is available in the district court.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, Patrick Straughter.

AFFIRMED.

      . In the petition, Straughter also claimed that he was- seeking to have an illegal detainer removed from the Sheriff of Orleans Parish’s computer relating to a 1995 trial for the crime of simple burglary, which resulted in a hung. jury. The commissioner’s report does .not address this allegation specifically and Straughter has not re-urged this claim in this ' appeal.


author: HIGGINBOTHAM, J.

text:
    Derrick PIERRE v. EAST BATON ROUGE PARISH CLERK OF COURT
    NO. 2017 CA 0688
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 01, 2017
    Derrick Pierre, Angie, LA, Plaintiff-Appellant, In Proper Person
    Benjamin D. Beychok, Baton Rouge, LA, Attorney for Defendant-Appellee, East Baton Rouge Parish Clerk of Court
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

| ¡/This appeal challenges the dismissal of an inmate’s petition for writ of mandamus directing the East Baton Rouge Parish Clerk of Court to provide a public records request. '

BACKGROUND

Derrick Pierre is an inmate who has been confined in the custody of the Louisiana Department of Public Safety and Corrections at Rayburn Correction Center in Angie, Louisiana since 1997. On November 10, 2011, Mr. Pierre filed a pro se petition for writ of mandamus in the Nineteenth Judicial District Court. In his petition, Mr. Pierre alleged that he had previously mailed a public records request to the East Baton Rouge Parish Clerk of Court on May 19, 2010, but the Clerk of Court failed to respond. In his request, Mr. Pierre sought the following documents: (1) a reproduction of the entire District Attorney file for Docket No. 6-97-846; (2) a reproduction of the entire District Attorney file for Docket No. 6-98-961; and (3) a reproduction of all adjudicated and settled criminal litigation involving the victim of Mr. Pierre’s 1997 conviction for attempted aggravated rape.

The Clerk of Court answered Mr. Pierre’s petition, averring that the requests were overly broad and that, according to the District Attorney, all of Mr. Pierre’s remedies were finalized for over three years, and the District Attorney no longer maintained the files that Mr. Pierre sought to have reproduced. In other words, the Clerk of Court simply did not have access to the requested records since they had been destroyed. Moreover, the Clerk of Court maintained that, pursuant to an exception under the Public Records Law at La. R.S. 44:31.1, Mr. Pierre was not entitled to public records unless they are related to grounds for which he could have fíléd for post conviction relief under La. Code Crim. P. art. 930.3.

LTwo hearings were held regarding Mr. Pierre’s mandamus action. The Commissioner for the district court recommended that the mandamus petition be dismissed, because the evidence was clear that the records request was made fourteen years after Mr. Pierre’s criminal conviction was final and the District Attorney’s office had authority to destroy the criminal records in accord with La. R.S. 44:36(E). Since Mr. Pierre offered no evidence to the contrary, the Commissioner reasoned that the mandamus petition should be dismissed as there were no available records that could be provided to Mr. Pierre. Mr. Pierre filed a traversal of the Commissioner’s recommendation; however, by judgment dated November 17, 2016, the district court adopted the Commissioner’s recommendation and dismissed Mr. Pierre’s mandamus action with prejudice and at his cost. Mr. Pierre appealed, arguing that the District Attorney’s office did not have authority to destroy his criminal records.

DISCUSSION

Generally, the right of access to public records is a fundamental right guaranteed by La. Const, art. XII, § 3. Johnson v. Stalder, 97-0584 (La. App. 1st Cir. 12/22/98), 754 So.2d 246, 248. An inmate in custody following a felony conviction, however, is only permitted access to public records if he has exhausted his appellate remedies- and the request is limited to grounds upon which the inmate could file for post conviction relief. See La. R.S. 44:31.1. If an inmate has identified specific constitutional errors in the proceedings leading to his conviction and sentence, and he specifies with reasonable particularity the factual basis for such Rrelief, he thereby'meets the initial requirements set for invoking post conviction -relief. See State ex rel. Bernard v. Criminal Dist. Court Section “J”, 94-2247 (La. 4/28/95), 653 So.2d 1174, 1175 (per curiam). See also La. Code Crim. P. art. 930.3, If an inmate does not properly file an application for post conviction relief, then he cannot make a showing of a particularized need for the documents request. Bernard, 653 So.2d at 1175.

The record in this case is void of any evidence that Mr. Pierre ever filed any application for post conviction relief, much less identified specific constitutional errors in the proceedings leading to his conviction and sentence, including his habitual offender status. Further, the enforcement provisions of the Public Records Law, found at La. R.S. 44:35, presuppose the existence of the records in the office of the custodian. Wallace v. Ware, 94-2204 (La. App. 1st Cir. 6/23/95), 657 So.2d 734, 737. Since Mr. Pierre has not provided evidence that he is actually entitled to the requested documentation, we conclude that it is of no moment that the requested records no longer exist due to the destruction of the files by the District Attorney’s office. We recognize that ordering the Clerk of Court to provide records that no longer exist would be a vain and useless act. See Id. Accordingly, mandamus relief is simply not available in this case:

CONCLUSION

After a careful review of the record and for the stated reasons, we affirm the district court’s dismissal of this mandamus action with prejudice. All costs of this appeal are assessed to plaintiff-appellant, Derrick Pierre.

AFFIRMED.

      . Louisiana Revised Statute 44:31.1 provides, in pertinent part, that a "person” entitled to public records "does not include an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 930.3.”

      . Louisiana Revised Statute 13:713 authorizes the Commissioners of the Nineteenth Judicial District Court to perform such duties as are assigned to them by the chief judge of the court, including hearing petitions for writs of mandamus relative to prisoners. See Wiggins v. District Attorney East Baton Rouge Parish, 2007-2398 (La. App. 1st Cir. 5/2/08), 2008 WL 2064979, *1 n.2 (unpublished), writ not considered, 2008-1208 (La. 9/19/08), 992 So.2d 960.

      .Louisiana Revised Statute 44:36(E)(1) provides, in pertinent part: "The public records of a prosecuting agency, pertaining to a criminal prosecution that results in a conviction ... shall be retained for a period of three years from the date on which a court of appeal affirms the conviction, the Louisiana Supreme Court denies writs, or the Louisiana Supreme Court makes its final ruling on the appeal, whichever occurs last.”

      . Louisiana Code Crim. P. art. 930.3 provides the grounds for which post conviction relief may be granted: (1) the conviction was unconstitutional; (2) the court exceeded its jurisdiction; (3) double jeopardy was involved; (4) prosecution of the offense was instituted after the limits had expired; (5) the statute creating the offense is unconstitutional; (6) a finding of an ex post facto application of law violation; and (7) the results of DNA testing proves by clear and convincing evidence that the petitioner is innocent of the crime for which he was convicted.