text:
    Nathaniel POOLE, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1442
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017
    Melissa Montle and Seth E. Miller, of Innocence Project of Florida, Inc., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Nathaniel Poole, Jr., appeals the summary denial of his motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. The postconviction court’s one-page unelaborated denial order was entered without ordering the State to respond to the motion and without any court records attached to the order. Due to these deficiencies, we reverse and remand.

In 1981, following a jury trial, Poole was convicted of kidnapping, sexual battery, robbery, and aggravated assault. According to the victim’s testimony, Poole was one of the three perpetrators of these crimes against her. Poole denied committing the crimes or even being present when the crimes were committed. The objective tidal evidence that the State used to link Poole to the crimes was that blood type “0” was discovered at the crime scene and that Poole has type “0” blood. No other scientific tests were performed on other evidence prior to trial, which consisted of pubic hairs, blood, semen, and oral swabs. Poole’s convictions were affirmed on direct appeal. Poole v. State, 413 So.2d 898 (Fla. 5th DCA 1982).

Florida Rule of Criminal Procedure 3.853(d) provides that a “motion for post-conviction DNA testing may be filed or considered at any time following the date that the judgment and the sentence in the case becomes final.” Prior to Poole’s present motion, in 2012, Poole, by counsel, moved for DNA testing. Following an evi-dentiary hearing, the postconviction court granted Poole’s motion in part. The court found that Poole met his burden of proof that there exists a reasonable probability that he would have been acquitted if the DNA evidence had been admitted at trial. The court ordered the Florida Department of Law Enforcement (“FDLE”) to perform the DNA testing, declining Poole’s request for the DNA testing to be conducted by an accredited laboratory other than the FDLE because Poole-had not established the requisite “good cause” under rule 3.853(c)(7). We affirmed the State’s appeal of this order without opinion. State v. Poole, 162 So.3d 1039 (Fla. 5th DCA 2015).

The FDLE performed the DNA testing on various items of evidence and issued a report that was favorable to Poole but did not completely, exonerate him. Poole, through counsel, then sought the unredact-ed FDLE case file for review by his own DNA expert to determine whether additional, more sensitive DNA testing on these same items of evidence that had not been performed by the FDLE could exonerate him. Poole eventually moved to compel the production of this information, which the court granted.

Poole has now filed the instant motion for additional testing, attaching an affidavit from Dr. Julie Heinig, the laboratory director in the forensics department of the DNA Diagnostic Center located in Fair-field, Ohio, in support of his motion. Dr. Heinig opined that she agreed with the results and conclusions in the FDLE report but that more advanced and sensitive DNA testing, which was not performed by the FDLE, would be particularly useful in this case and may achieve more robust and complete DNA profiles, especially on the more degraded samples tested. Dr; Heinig farther opined that there was no scientific reason not to perform this additional testing and that her lab is accredited and has both the capability and the extensive experience to perform this more particularized DNA testing in these types of cases. Finally, Poole alleged that he would bear the cost of this additional testing at this independent laboratory. ■

Rule 3.853(c) sets forth the procedure that the court must follow where, as here, the motion for postconviction DNA testing is facially sufficient. First, the court must order the prosecuting authority to respond to the motion within thirty days or such other time as determined by the court. Fla. R. Crim. P. 3.853(c)(2). Thereafter, upon receipt of this response, the court shall review the response and then either enter an order on the merits or set the motion for hearing. Id. at 3.853(c)(3).

The postconviction court erred when it denied Poole’s motion without holding an evidentiary hearing or attaching to the order portions of the record conclusively refuting Poole’s motion. See Girley v. State, 935 So.2d 55, 56 (Fla. 1st DCA 2006); Reddick v. State, 929 So.2d 34, 36-37 (Fla. 4th DCA 2006); Schofield v. State, 861 So.2d 1244, 1246 (Fla. 2d DCA 2003). The court also erred by ruling on the motion without requiring a response from the State. See Girley, 935 So.2d at 56.

Accordingly, we reverse the order on appeal and remand to the postconviction court with directions that the court order the State to file a response to the motion, and thereafter, upon receipt and review of the response, to either set the motion for hearing or enter an order on the merits. Moreover, because the postconviction court previously held that Poole met his eviden-tiary burden to demonstrate that there is a reasonable probability that Poole would have been acquitted if DNA evidence had been admitted at trial, the State’s response should, at a minimum, address whether it has any objections to the additional, more sensitive DNA testing techniques described in Dr. Heinig’s affidavit to be performed at Poole’s expense at an accredited outside laboratory, and if so, the specific grounds for the objection.

REVERSED and REMANDED, with directions.

COHEN, C.J., LAMBERT and EISNAUGLE, JJ., concur.

      . Rule 3.853(c)(7) states:
      (7) The court-ordered DNA testing shall be ordered to be conducted by the Department of Law Enforcement or its designee, as provided by statute. However, the court, upon a showing of good cause, may order testing by another laboratory or agency certified by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) or Forensic Quality Services, Inc. (FQS) if requested by a movant who can bear the cost of such testing.


source: Caselaw Access Project

author: WALLIS, J.

license: Public Domain

text:
    Charles MILLS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-517
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017
    Charles Mills, Lake City; pro se.
    No Appearance for Appellee.
   WALLIS, J.

Charles Mills appeals the' trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. In his motion, -Mills alleged that a third party; Ronnie Bright, authored an affidavit seven years after Mills’s conviction, judgment, and sentence for burglary of a conveyance. In the affidavit, Bright admitted sole responsibility for the burglary and asserted that he was unwilling to incriminate himself at the time of trial. The trial court summarily denied this claim, finding that Bright’s affidavit did not qualify as newly discovered evidence because Mills was aware of the evidence at the time of trial. This court has previously concluded that a similar affidavit constituted newly discovered evidence. See Barrow v. State, 940 So.2d 1235, 1236-37 (Fla. 5th DCA 2006); see also Brantley v. State, 912 So.2d 342, 342-43 (Fla. 3d DCA 2005); Totta v. State, 740 So.2d 57, 58 (Fla. 4th DCA 1999); Kendrick v. State, 708 So.2d 1011, 1012 (Fla. 4th DCA 1998). Thus, we reverse the summary denial. On remand, the trial court must- either attach a portion of the record'that conclusively refutes Mills’s claim or' conduct an eviden-tiary hearing on the matter. See Barrow, 940 So.2d at 1238; Kendrick, 708 So.2d at 1013.

REVERSED and REMANDED with Instructions.

COHEN, C.J. and EVANDER, J., concur.


author: PER CURIAM.

text:
    James Scott PENDERGRAFT, IV, Orlando Women’s Center, LLC, Wilson Medical Management, LLC, Wilson Medical Management, Inc., Gorilla Realty Management, LLC, et al., Appellants, v. C.H., as Settlor of the J.F. Special Needs Trust and the Center for Special Needs Trust Administration, Inc., as Trustee of the J.F. Special Needs Trust, Appellees.
    Case No. 5D17-49
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017

      Elizabeth Siano Harris, of Widerman Malek, PL, Melbourne, for Appellants.
    Richard J. Stone, of Richard J. Stone, P.A., Miami; and Frank F. Fernandez, III, The Fernandez Firm, Tampa, for Ap-pellees.
   PER CURIAM.

Appellants appeal from an order freezing their assets in proceedings supplementary filed below. We affirm in part and reverse in part.

An order freezing assets for further determination of the ownership right to those assets is in the nature of an injunction. TJ Mgmt. Grp., L.L.C. v. Zidon, 990 So.2d 623, 625 (Fla. 3d DCA 2008). When an appeal is taken from the entry of a temporary injunction, Appellants cannot raise arguments that should have been, but were not, raised at the hearing in the trial court. See id. at 626. However, here, the trial court failed to require Appellee to post a bond, a ministerial act. See Fla. High Sch. Activities Ass’n v. Mander ex rel Mander, 932 So.2d 314, 315-16 (Fla. 2d DCA 2006) (holding that trial court cannot waive' bond requirement nor can bond be nominal); Cushman & Wakefield, Inc. v. Cozart, 561 So.2d 368, 370 (Fla. 2d DCA 1990) (“A trial court must require the mov-ant to post an injunction bond before it enters a temporary injunction.”). Though the circuit court, can determine the appropriate amount of the bond after hearing evidence from all-parties, the court is without discretion to determine whether to set bond in the first place. See Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997).

For these reasons, we affirm the order freezing Appellants’ assets, but remand for the trial court to determine an appropriate injunction bond.

AFFIRMED in part; REVERSED in part; and REMANDED. ,

COHEN, C.J., ORFINGER and BERGER, JJ., concur.


text:
    G.F.C., a Child, Appellant, v. Dr. Debra P. PACE, Superintendent of Schools, Appellee.
    Case No. 5D16-1923
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017
    Andrew C. Hill, and Stephen J. Calvae-ca, of NeJame Law, PA, Orlando, for Appellant.
    Amy J. Pitsch, Usher L. Brown, Susana Cristina Garcia, and Victor Kline, of Greenspoon Marder, Orlando, for Appel-lee.
   PER CURIAM.

We grant Appellee’s motion to dismiss this appeal for the reasons explained below.

Following investigation and an expulsion" hearing, Appellee determined that Appellant had falsely claimed that one of her teachers touched her inappropriately. Appellant was given the choice of accepting expulsion or accepting an administrative transfer from her then-current school to a virtual school with the right to return to her original school in January 2017. Appellant, with her parents’ agreement, chose to accept the administrative transfer. Appellant timely, but improperly, appealed the order imposing her punishment.

“[H]earings that result in expulsion fall within the [Administrative Procedure Act (“APA”) ] and are entitled to judicial review in the appropriate district court.” D.K. ex rel. Kennedy v. Dist. Sch. Bd. Indian River Cty., 981 So.2d 667, 667 (Fla. 4th DCA 2008) (citing § 1006.07(1)(a), Fla. Stat. (2006)). However, hearings that result in suspension do not fall under the APA, and thus are exempt from its protections. Id. Judicial review of proceedings that result in expulsion are permitted under the APA, and “not those where expulsion is a possibility.” Id. at 668. Appellate courts have “no jurisdiction to review a direct appeal of a School Board’s decision that results in suspension.” Id. at 667.

Because Appellant’s punishment for making the false accusation was an administrative transfer, rather than expulsion, the order is not appealable. Appellee’s motion to dismiss the appeal for lack of jurisdiction is granted.

APPEAL DISMISSED.

ORFINGER, EVANDER, and EDWARDS, JJ., concur.


text:
    Dwight DOBSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2835
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
    Dane K. Chase of Chase Law Florida, P.A., Saint Petersburg, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

RAY, BILBREY, and WINSOR, JJ., CONCUR.


text:
    Dontavious MOYE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0331
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017.
    Andy Thomas, Public Defender, and Samantha Porche, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied.

RAY, BILBREY, and WINSOR, JJ., CONCUR.


text:
    Rachel LINTON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2905
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
    Bruce A. Miller, Public Defender, and David A. Dunkerley, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


author: GENOVESE, Justice. WEIMÉR, J.,

text:
    James ROBINSON v. The BOARD OF SUPERVISORS FOR the UNIVERSITY OF LOUISIANA SYSTEM and Joey Strum, individually and in his official capacity as Chief of Police for the University of Louisiana at Lafayette
    No. 2016-C-2145
    Supreme Court of Louisiana.
    06/29/2017

      LOUISIANA ATTORNEY GENERAL’S OFFICE, Hon. Jeffrey Martin Landry, Attorney General, KEOGH, COX & WILSON, LTD, Andrew Blanchfield, for Applicant-Defendant.
    G. KARL BERNARD & ASSOCIATES, G. Karl Bernard, for Respondent-Plaintiff.
   GENOVESE, Justice.

I,This suit for alleged age discrimination was instituted by plaintiff, James Robinson, against his employer, the Board df Supervisors for the University-of Louisiana' System (ULL). We granted this writ of certiorari to review the district court’s judgment in accordance with a jury verdict finding that ULL discriminated against Robinson based on his age and awarding him damages. After reviewing the record of these proceedings, as to liability, we find no legal or manifest error in the jury’s verdict in favor of plaintiff; thus, we affirm the jury’s finding of age discrimination in favor of Robinson. However, as to damages, we find that the amount of the jury’s damage award of $367,918.00 is not supported by the record. Therefore, we amend the judgment in part and affirm the jury’s damage award as amended herein.

REACTS AND PROCEDURAL HISTORY

In 1971, James Robinson, at the age of twenty-seven, was hired at the University of Southwestern Louisiana, presently the University of Louisiana at Lafayette (ULL), defendant herein, in the security department, which later became the campus police department. In 1980, Officer Robinson was promoted by Police Chief Joey Sturm and obtained the rank of Captain, the second highest rank in the chain of command of the ULLPD. Captain Robinson was appointed ULL police department (ULLPD) evidence custodian in 1999 by Chief Sturm, and, in that capacity, he was solely responsible for the contents of the evidence room.

In 2002, Chief Sturm left the ULLPD and pursued other employment opportunities. During Chief Sturm’s absence, from 2002 until his subsequent .return to the ULLPD in 2009, Captain Robinson served as Interim Chief on three separate occasions. Near the end of 2010, Joey Sturm returned to ULL, again as campus police chief. At the direction of Chief Sturm, the ULLPD began to implement organizational and policy changes. In keeping with Louisiana Civil Service Requirements, many ULLPD officers received salary and rank increasés. Captain Robinson benefit-fed as a result thereof and was promoted by Chief Sturm to Police Major A, continuing as the second highest in' the chain of command of the ULLPD, effective October 27, 2010. Major Robinson was then sixty-six years of age and the oldest ULLPD employee, with most of the employees being in their early forties.

' Near the end of 2010, O.K. Allen Hall, the building hodsing the 'evidence room, was scheduled to undergo renovations. Plans were made for the contents of the evidence room to be physically relocated to a new facility. In December 2010, RChief Sturm directed Major Robinson to conduct an audit of the contents of the evidence room prior to its relocation. Once accomplished, the evidence room custodian duty was to be transferred from Major Robinson to Officer Billy Abrams. The evidence room had been located in O.K Allen Hall since 1999, and its relocation was a significant undertaking. Major Robinson requested the assistance of Officer Daniel Mendoza to accomplish the move to the new facility known as the Creamery Building.

By the end of 2010, the ULLPD evidence room had been relocated to the Creamery; however, the audit. had not been done. In March 2011, Major Robinson received an unsatisfactory work performance evaluation from Chief Sturm, his first negative evaluation since beginning his employment with ULLPD -back in 1971. Also in March 2011, Major Robinson’s duties as custodian of the evidence room were taken from him and given to Officer Abrams, a lower ranking officer. On March 15, 2011, Chief Sturm recommended to the ULL Vice President of Student Affairs, Dean Edward Pratt, that disciplinary action- be taken against Major Robinson, citing insubordination in failing to follow direct orders relative to the audit and transfer process of the -evidence room. Chief Sturm agreed to reduce his recommendation of a five-day suspension to a three-day suspension, given Major Robinson’s past work history, after discussions with ULL’s Human Resource Director, Charlene Hamilton.

Major Robinson executed the'requisite paperwork on May 9, 2011, certifying his ■ intent to retire effective July 15, 2011. Subsequently, Chief Sturm’s proposed disciplinary action was rescinded upon Major Robinson certifying his retirement plans.

Major Robinson became the subject' of an internal affairs investigation in May 2011 over alleged missing evidence. Chief Sturm instituted the internal |4affairs investigation, which was to be conducted by Lieutenant Michael Louviere, ULLPD’s Investigative Lieutenant. Lieutenant Lou-viere’s investigation substantiated misconduct for unsatisfactory performance on the part of Major Robinson, .Chief Sturm drafted a letter to Major Robinson in June 2011 advising him of the. internal investigation findings. The letter was forwarded to the Human Resources Department (HR); however, disciplinary action was withheld due to Major Robinson’s retirement effective July 15, 2011.

Major Robinson was given a new assignment by Chief Sturm to patrol the Primate Research Center (Primate Center) in New Iberia, Louisiana, on May 23, 2011. This new assignment as a patrolman was not in conformity with Major Robinson’s classification as a Police Major A, although his salary remained unchanged.

Major Robinson retired on July 15,2011. By the time of his retirement, Major Robinson had been employed at-ULL for- forty years and was sixty-seven years old.

In August 2012, Major Robinson filed the present suit for‘damages based'upon age-based employment discrimination by the ULLPD under both federal and state law. Following a trial' by jury, a verdict was rendered in favor of Major Robinson for $367,918.00. A judgment was signed by the district court in conformity with the jury verdict, and Major Robinson was awarded attorney fees and court costs. That verdict was appealed to the First Circuit Court' of Appeal, which affirmed the jury verdict finding that Major Robinson had successfully established a prima facie case of age discrimination. Additionally, the appellate court found that the jury permissibly rejected ULL’s proffered legitimate, non-discriminatory reason for its actions and found that a rational fact-finder could conclude that the action was discriminatory. Robinson v. Bd. of Supervisors for Univ. of La. Sys., 15-1707 (La. App. 1 Cir. 11/4/16), 208 So.3d 511 (Chutz, J., dissents and assigns reasons). ULL then filed an application for certiorari with this Court, which was granted by order of February 3, 2017. Robinson v. Bd. of Supervisors for Univ. of La. Sys., 16-2145 (La. 2/3/17), 215 So.3d 688.

DISCUSSION

Standard of Review

The trial court’s findings of fact may not be reversed unless they are manifestly erroneous or clearly wrong. Stobart v. State of Louisiana, through Dep’t Transp. & Dev., 617 So.2d 880, 882 (La.1993). The issue to be resolved by a reviewing court is not whether the jury was right or wrong, but whether the conclusion reached was a reasonable one. Id. When there is conflict in the testimony, a jury’s reasonable evaluations of credibility and reasonable inferences of facts should not be disturbed, even though an appellate court may feel that its own evaluations and inferences are reasonable. Id. The reviewing court must remain mindful that if the “jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighted the evidence differently.” Id. at 882-83 (citing Housley v. Cerise, 579 So.2d 973 (La.1991)) (quoting Sistler v. Liberty Mut’l Ins. Co., 558 So.2d 1106, 1112 (La.1990)). Additionally, where there are two permissible views of the evidence, the jury’s choice between them cannot be manifestly erroneous or clearly wrong. Id. (citing Canter v. Koehring Co., 283 So.2d 716 (La,1973)).

This Court has repeatedly emphasized the deference due to the trier of fact, stating:

[A]n appellate court on review must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently:
| fi[w]hen findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.
Rosell [v. ESCO ], 549 So.2d [840] at 844-45 [ (La. 1989) ] (citations omitted).
While we understand and appreciate the reality that many times we would have judged the case differently had we been the trier of fact, this is not our function as a reviewing court. Menard v. Lafayette Ins. Co., 09-1869, p. 21 (La.3/16/10), 31 So.3d 996, 1011.

Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, pp. 9-10 (La. 12/8/15), 193 So.3d 1110, 1116.

Age Discrimination

Major Robinson’s claims of age discrimination are based upon alleged violations of the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and Louisiana’s Age Discrimination Employment Act (LADEA), La.R.S. 23:311-314, which make it unlawful for an employer to discharge any individual or otherwise discriminate against an individual with respect to compensation, or terms, conditions, or privileges of employment because of the individual’s age. 29 U.S.C. § 623; La.R.S. 23:312(A)(1). Because the LADEA “is identical to the federal statute prohibiting age discrimination, Louisiana courts have traditionally looked to federal case law for guidance.” LaBove v. Raftery, 00-1394, 00-1423, p. 9 (La. 11/28/01), 802 So.2d 566, 573 (footnote omitted).

Under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in order to establish a prima facie case of employment discrimination based on age, a plaintiff must prove that: (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge or demotion; and (4) he was either (i) replaced by someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged because of his age. Eastin v. Entergy Corp., 09-0293, p. 34 (La.App. 5 Cir. 7/27/10), 42 So.3d 1163, 1185-86 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). The establishment of a prima facie case raises an inference of unlawful discrimination. Id. at 1186 (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).

If the plaintiff can establish a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-diseriminatory purpose for the adverse employment action. Id. (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). The defendant must point to admissible evidence in the record, but the burden is one of production, not persuasion. Id. (citing Texas Dep’t of Cmty. Affairs, 450 U.S. at 254, 101 S.Ct. at 1094-95).

If the defendant satisfies its burden of production, the burden shifts back to the plaintiff to show that any nondiscriminatory reasons articulated by the employer are not true reasons, but only pretexts. Id. (citing Texas Dep’t of Cmty. Affairs, 450 U.S. at 253, 101 S.Ct. at 1093); McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. This may be accomplished either directly, by showing that a discriminatory reason more than likely motivated the employer, or indirectly, -by |8sh owing that the asserted. reason is unworthy of credence. Eastin, 42 So.3d at 1186 (citing Texas Dep’t of Cmty. Affairs, 450 U.S. at 256, 101 S.Ct. at 1095); McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825-26.

The ultimate burden of proof remains with the plaintiff to prove’ by a preponderance of the evidence that age was the “but-for” cause of the adverse employment action. Eastin, 42 So.3d at 1182 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009)). The rejection by the factfinder of an employer’s proffered legitimate, non-discriminatory reason for the adverse employment action does not compel a judgment in favor of a plaintiff. Reeves, 530 U.S. at 147-48, 120 S.Ct. at 2108 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993)). The factfin-der’s rejection, together with the elements of plaintiffs prima facie’case, permits a trier of fact to infer the ultimate fact of intentional discrimination. Reeves, 530 U.S. at 148, 120 S.Ct. at 2109; Eastin, 42 So.3d at 1186-87.

ULL contends that Major Robinson failed in his burden of proving that he was unlawfully discriminated against as an employee of the ULLPD due to his age and that he was forced to retire as a result of these discriminatory practices. ULL argues that the First Circuit Court of Appeal erred in not holding Major Robinson to the more demanding “but-for” burden of proof required in ADEA cases following Gross, 557 U.S. 167, 180, 129 S.Ct. 2343, 2352. Its argument is two-fold. First, ULL argues that in the instant matter, there is no evidence that an adverse employment action occurred. Second, it asserts that 'the evidence is insufficient to prove that the adverse action - would not have occurred without Robinson’s advanced age.-

Adverse Employment Action

|9On May 9, 2011, Major Robinson signed papers indicating his retirement effective July 11, 2011. According to ULL, the only possible adverse employment action prior to this date was the letter of reprimand issued by Chief Sturm, which was never carried out in light of Robinson’s imminent retirement. ULL disputes Major Robinson’s self-serving testimony that he was forced to resign. ULL argues that Major Robinson was never demoted, never had his salary reduced, and was never offered an early retirement or a continuation of employment under less favorable terms.

An age discrimination claim can be grounded on a theory of constructive discharge. The jury in this case was charged with the rule of law that a plaintiff can prove that he suffered wrongful discrimination on the basis of age by showing that he was constructively discharged. A constructive discharge occurs when an employee quits their job under circumstances that are treated as an -involuntary termination. Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004). If an employee’s working conditions are deliberately .made so intolerable-that the employee is forced to involuntarily resign, such constitutes a constructive discharge. Id. (quoting Young v. Sw. Sav. & Loan Ass’n, 509 F.2d 140, 144 (5th Cir.1975)). The inquiry is case-and-fact specific, and the relevant factors which may be present singularly or in combination include: (1) demotion; (2). reduction in salary; (3) reduction in-job -responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger (or less experienced/qualified) supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or (7) offers of early retirement (or continued employment on terms less favorable than the employee’s former status). Id. at 649-50 (quoting Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)). Making a determination of a constructive discharge requires ]inthat á “reasonable employee" test be employed. Id. at 650. The “reasonable employee” test is an objective test of whether a reasonable person in the employee’s shoes would have felt compelled to resign. Id. (citing Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 n. 19 (5th Cir.1994)).

Thus, we must consider whether the' record reasonably, supports the jury’s implicit determination that ULL constructively discharged Major Robinson, We conclude that it does. Evidence of Major Robinson’s constructive discharge includes a combination of the factors delineated above. Additionally, the record supports a determination that adverse employment "action was taken against Major Robinson prior to his signing of the retirement papers. The adverse treatment of Major Robinson also continued thereafter.

. Major Robinson testified that he was forced to resign. He,.explained that he felt he had , been “deleted” from, the ULLPD when he was omitted from command staff meetings and when his job, responsibilities began to be taken from him. According to Major Robinson, he had planned to work at the ULLPD three more years due to financial issues. He spoke to the HR Director, Charlene Hamilton, in March 2011, and questioned whether he had enough years to retire, but he denied advising Ms. Hamilton at that time that he wanted to retire. Despite his intention to remain employed with ULLPD for another three years, Major Robinson signed paperwork on May 9, 2011, indicating an effective retirement date of July 11, 2011.

Sergeant Tony Johnson testified that Chief Sturm had limited interaction with Major Robinson. He also confirmed Major Robinson’s exclusion from closed-door meetings Chief Sturm held with the command staff, his reliance on ^Lieutenant Larry Zerangue, instead of the true second in command, and the preferential treatment given to lower ranking employees who, unlike Major Robinson, were allowed the use of a ULLPD credit card, and who were provided iPads and iPhones. Officer Michelle Broussard echoed this testimony, describing how the chain of command was not followed by Chief Sturm and that closed-door meetings were held without Major Robinson. Officer Broussard agreed that it was a common sentiment at the ULLPD that Major Robinson was not treated “with the respect that he deserved. Due to the palpable tension, Officer Brous-sard testified that she began to avoid going into the office. In Officer Broussard’s opinion, Major Robinson was forced out of his job.

The record also contains other evidence of Major Robinson being subjected to embarrassment, humiliation, and to treatment with less respect than that deserved by a Major and second in the chain of command of the ULLPD. Major Robinson and Officer Mendoza testified that Chief Sturm yelled at him, called him names, and called him incompetent. This treatment of Major Robison by Chief Sturm had a negative impact on Major Robinson’s stature among other members of the ULLPD. As discussed further below, Sergeant Johnson testified about the open and repeated negative statements made about Major Robinson related to his age, which began only after Chief Sturm’s return to ULLPD.

In January 2011, Chief Sturm removed Major Robinson’s duty as patrol commander. According to Sergeant Johnson, he was told by Lieutenant Charles Gisclair that he was not to report anything to Major Robinson anymore; rather, all patrol activities were to be reported to Lieutenant Ze-rangue. Sergeant Johnson explained that basically all of Major Robinson’s duties were taken from him. Thereafter, Major Robinson was also relieved of his payroll duties. As of March 11g2011, Chief Sturm relieved Major Robinson of'his duties as evidence custodian. The reduction of Major Robinson’s job duties continued to the degree that Chief Sturm himself admitted that by the time Major Robinson was assigned to the primate center, “[h]e had no duties at that point.” Chief Sturm had “removed them all from him.” Moreover, all of Major Robinson’s duties were assigned to lower ranking ULLPD officers.

We find that the record reasonably supports the conclusion that Major Robinson’s duties were taken from him prior to May 2011, and that these duties were reassigned to subordinates. In addition to being stripped of his duties, Major Robinson was subjected to embarrassing and demeaning behavior by Chief Sturm, who also ostracized him from command staff meetings, who yelled at him, who called him incompetent, and who called him names within earshot of lower ranking officers.

Finally, we do not find the lack of a reduction in Major Robinson’s salary to be determinative of whether he suffered an adverse employment action. The factors delineated in Brown, 237 F.3d 556, may exist singularly or in combination and are case-and-fact specific. Haley, 391 F.3d at 649. The lack of a reduction in salary is but one of the factors, and its absence does not necessarily negate a finding of an adverse employment action.

Preferred, Legitimate, Non-Discriminatory Reason

ULL argues that even if Major Robinson proved a constructive discharge, he failed to prove that his age was the “but-for” cause of his discharge. Gross, 557 U.S. 167, 129 S.Ct. 2343. In Gross, the Court concluded that the ADEA requires proof that the prohibited criterion was the “but-for” cause of the prohibited | ^conduct. In other words, a plaintiff in an age discrimination case must establish by a preponderance of the evidence that age was the “but-for” reason the employer took the adverse action, rather than simply a motivating factor. Gross, 557 U.S. at 180, 129 S.Ct. at 2352. ULL maintains that the legitimate, non-discriminatory reason for the adverse employment action, if any, was the' result of Major Robinson’s insubordination.

ULL asserts that it is nonsensical to contend that Chief Sturm would have promoted Captain Robinson to Major Robinson only to begin acting with age-discriminatory intent six weeks later. It was the testimony of Chief Sturm that he was not obligated to promote Captain Robinson to the position of Major, but, instead, he could have given that position to another officer or he could have hired from outside of the ULLPD. Chief Sturm chose Major Robinson, and the problems only arose subsequently, when Major Robinson failed to follow Chief Sturm’s directives.

ULL argues that there is evidence of its stated non-discriminatory reason of insubordination based upon the testimony of Chief Sturm and documentation beginning with his December 14, 2010 email to Major Robinson. In that email, Chief Sturm directed Major Robinson to perform an audit of the evidence room and to report back to him on the progress. Major Robinson failed to do so. Again, on December 15, 2010, Chief Sturm emailed Major Robinson with a written reprimand for failing to respond. Therefore, in February 2011, Chief Sturm emailed Major Robinson again stating, “[Y]ou still have not followed direction nor have you taken charge of the project.” Frustrated at the lack of response, Chief Sturm sent Major Robinson a letter on March 1, 2011, relieving him of his duties as evidence custodian. On March 15, 2011, Chief Sturm wrote the Vice President of Student Affairs and recommended a five-day suspension for Major Robinson’s | uMlure to follow his directions. Chief Sturm agreed to reduce the recommended suspension to three days at the urging of the HR Director, Ms. Hamilton. Notably, ULL points to Ms. Hamilton’s testimony that she discussed the recommended suspension with Major Robinson, that it was Major Robinson who chose not to respond to the reprimand, and that it was Major Robinson who, instead of responding, chose to retire.

Evidence of Pretext

Major Robinson maintains that the jury’s verdict of age discrimination and its rejection of ULL’s proffered legitimate, non-discriminatory reason for its action are supported by age-based comments, disparate treatment, and the building of an unjustified file against him by Chief Sturm. Major Robinson asserts that Chief Sturm’s negative and disrespectful treatment of him “infected” other officers of the ULLPD, who made negative statements directed at him due to his age. Major Robinson argues that Chief Sturm’s treatment of him and the manner in which he undermined his authority had a detrimental effect on his stature and the respect he previously held in the department. The fact that such comments were made was admitted at trial by ULL’s own employees, and they were unrefuted.

Officer Johnson testified that the command staff; including Lieutenant Gfeclair, Lieutenant Stelly, and Lieutenant Ze-rangue, would talk openly and negatively about Major Robinson’s age. Statements were made such as: “He does not know what he is doing. He has gotten too old. He has been here too long. He needs to retire or go home.” Further, comments were made in the office by ULLPD officers that Major Robinson was not provided with an iPhone and an iPad (which were provided to others) because Major Robinson was too old and he would not know how to use them. Officer Johnson characterized statements about |1RMajor Robinson’s need to retire as being “regular office discussion” and of a “regular occurrence.”

ULL discounts the relevance of the age-animus statements made by the officers of the ULLPD. ULL relies on Wyvill v. United Companies Life Insurance, 212 F.3d 296 (5th Cir. 2000), cert. denied, 531 U.S. 1145, 121 S.Ct. 1081, 148 L.Ed.2d 957 (2001), to discount the probative value of these statements to demonstrate discrimination. However, we are not persuaded, nor do we agree that the reasoning of Wyvill renders the subject remarks irrelevant. We find that the nature and frequency of these remarks directed at Major Robinson, which were clearly based upon age, while not necessarily determinative of discrimination, are certainly probative. Additionally, these age-based remarks, which were heard by the jury, along with the other evidence presented by Major Robinson, provide a reasonable and legal basis for the conclusions reached by the jury.

In Wyvill, the court characterized generalized age related statements as “stray remarks” which the court did not find to be temporally stated with the employee’s termination: Id. at 304. These facts differ significantly from the instant matter where the remarks were being made during the same time period that Chief Sturm was stripping away Major Robinson’s duties. The remarks were also a regular and repeated occurrence, and they were being made by more than one person. Although the age-animus comments were being made by officers lower in rank by virtue of their titles, these individuals, in truth and in fact, had been elevated over Major Robinson, who remained the. second in command in title only.-

The Wyvill decision was not without criticism and rebuke, as evidenced by the fifth circuit decision in Palasota v. Haggar Clothing Co., 342 F.3d 569, 577-78 (5th Cir. 2003), cert. denied, 540 U.S. 1184, 124 S.Ct. 1441, 158 L.Ed.2d 89 (2004) (footnote omitted), wherein the court opined:

hfiRelying on Wyvill, a pre-Reeves' decision, the court found the remarks insufficient to create an inference of discriminatory intent. Wyvill stated that, for an age-based comment to be probative of an employer’s discriminatory intent, it must be “direct and unambiguous, allowing a reasonable, jury .to conclude without any inferences or presumptions that age was a determinative factor in the decision to terminate the employee.” 212 F.3d at 304. After Reeves, however, so long as remarks are not the only evidence of pretext, they are probative of discriminatory intent.-
Post-Reeves, this court has' taken a more “cautious” view of the stray remark doctrine discussed in Wyvill. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir.2000). Age-related remarks “are appropriately taken into account when analyzing the- evidence supporting the jury’s verdict,” even where the comment is not in the, direct context of. the termination. and even if uttered by one other than the formal decision maker, provided that the individual is in a position to influence the decision. Id.

' More recently, in Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir, 2012), the court expounded on a plaintiffs use of allegedly discriminatory comments made by Go-workers in making a discrimination claim and distinguished between the use of such remarks as direct evidence from those offered as additional circumstantial evidence, stating:

Where a plaintiff offers remarks as circumstantial evidence alongside -other alleged discriminatory conduct, however, we apply a more flexible two-part test. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir.2000).'In that circumstance, a plaintiff need only show (1) discriminatory animus (2) on the part of a person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decisionmaker. See Laxton[v. Gap, Inc., 333 F.3d 572, 583 (5th Cir. 2003) ] (citing Russell, 235 F.3d at 226).

Considering the foregoing, we are unpersuaded by Wyvill, and we find, based upon Reeves, that negative age-based comments that are direct, unambiguous, and of temporal proximity to the adverse employment action, when considered in combination with other circumstantial evidence of pretext, are probative of discriminatory intent, Considering the record in this case, the nature h7and frequency of the negative age-based statements, and the timing in which these statements arose, along with the additional circumstantial evidence that was presented to the jury, we find the remarks to be probative.

Finally,, relative to the second component set forth in Reeves, that the comments need to be.made by the decision maker or those in a position to influence the- decision, we And that the record reasonably supports the conclusion that the officers with the ULLPD who made these age-animus statements directed toward Major Robinson had such influence. Though technically considered lower ranking officers, these officers, for- all practical purposes, had ascended in rank over Major Robinson. His prior job duties were now their job duties. Although not formally in title, but in truth and in fact, they were his superiors; and, they were part of the .ULLPD command staff. Given their status, these individuals were in positions to influence, and did influence, the decision maker.

After thirty-nine years of unblemished employment at ULL, and being viewed as the “go to guy” in the ULLPD, according to Major -Robinson, Chief Sturm used the significant task of relocating the evidence room from O.K. Allen Hall to a new facility as an opportunity to denigrate -him. and “paper” his file with baseless criticism. Major Robinson asserts that the documentary evidence and the testimony of Chief Sturm, when compared to that of all other witnesses—Lieutenant Zerangue, Officer Mendoza, Lieutenant Broussard, and Sergeant Johnson—reveal Chief Sturm’s true motivation and demonstrate that it was to create a justification for stripping him of all of his duties as Major predominantly due to and because of his age. Ultimately, Chief Sturm’s goal was to frustrate and hshumiliate this sixty-six-year-old, forty-year employee, to the extent that he would remove himself from his employ, which he ultimately did.

O.K. Allen Hall was described as a rat-infested, dingy building with paint peeling from the walls, and likely to contain asbestos. This condition was confirmed by all of the officers who joked that the rats kept returning because they were consuming the drugs stored therein. Despite the less than desirable facility, Major Robinson historically had been able to manage the evidence and to meet the demands of the district attorneys who needed the evidence for purposes of pursuing convictions for crimes committed on campus.

Notably, Chief Sturm had observed the evidence room a short time prior to the relocation plans getting underway, and he did not express outrage or displeasure, in any form. The beginning of the documentation of unsatisfactory conduct of Major Robinson began December, 14, 2010, via email from Chief Sturm to Major Robinson, when he requested Major Robinson to perform the audit and to acknowledge receipt of the email. Major Robinson was also instructed to provide Chief Sturm with written updates on his progress.:

The evidence room had nfever previously been audited, and Major Robinson advised Chief Sturm that he did not know how to perform an audit. Although Chief Sturm testified that he issued the written reprimand on December 15, 2010, for Major Robinson’s failure to respond, Major Robinson testified that he had always communicated verbally with Chief Sturm, and, after receiving the December 14, 2010 email, he acted accordingly. Major Robinson also stated that he advised Chief Sturm that his email was not working properly. Officer Abrams corroborated this testimony, stating that he had looked into the email problem and that he had determined that Major Robinson had been given a bad email address.

ImMajor Robinson maintains that the testimony of Chief Sturm was contradicted by the other ULLPD officers in many respects. Chief Sturm testified that after bfeing asked to help Major Robinson, Officer Mendoza came to his office “visibly shaken” after seeing the condition of'the evidence room. Chief Sturm further testified that Officer Mendoza advised him that Major Robinson was going to throw away some of the evidence stored in the O.K. Allen facility at that time. ■

Major Robinson testified that after receiving the December 14, 2010 email, he spoke to Chief Sturm about his lack of knowledgfe on how to conduct an audit. Major Robinson asked Officer Mendoza for help in completing the task. It was Officer Mendoza’s testimony that he went to speak to Chief Sturm so that he would not be held responsible for missing or unaccounted for evidence. Officer Mendoza’s concern arose from the evidence not being bagged any longer, and some of it now being out of the bags and on the floor. Officer Mendoza also denied telling Chief Sturm that Major Robinson was going to throw away evidence. Following the conversation, Officer Billy Abrams was placed in charge of the evidence room and the evidence, and Lieutenant Zerangue was to oversee Officer Abrams.

Lieutenant Zerangue’s testimony concerning the audit process and the relocation of the evidence also differed from Chief Sturm’s. Lieutenant Zerangue testified that because of the construction at O.K. Allen Hall, the moving of the evidence to the new location had to be done ■ very quickly. Despite Major Robinson being criticized for his inaction, Lieutenant Zerangue testified that the evidence was in fact moved to the Creamery in December 2010, prior to the audit being done, and that the audit process could not and did not begin until March 2011. Additionally, Lieutenant Zerangue knew that the audit process would take more 12nthan six months to complete. According to Lieutenant Zerangue, the auditing process was still ongoing at the time of the trial, over two years later.

Chief Sturm’s testimony also differed from that of Officer Mendoza and Lieutenant Zerangue on who was in charge of the relocation. While Chief Sturm insisted that Major Robinson failed to follow through on his directives, these individuals testified that in December 2010, it was the two of them, along with Officer Abrams, who were in charge of the move. Major Robinson had already been relieved of his duties as evidence custodian. Therefore, in February 2011, when Chief Sturm maintained that Major Robinson still had not done as directed and had not facilitated the transfer of the evidence, these officers agreed that Major Robinson was no longer in charge of the evidence room, having been relieved of this duty in December 2010. Major Robinson testified he did not even have the authority to make the requisite purchases to have the new location set up and functioning.

There was also testimony regarding the steps Major Robinson had taken in furtherance of transferring his duties to Officer Abrams and his communicating thereof with Chief Sturm. He explained that he was not able to have the necessary alarm installed due to the Mardi Gras holiday, which he let Chief Sturm know. He also advised, and Chief Sturm was aware of the fact that a temporary two-party system had been implemented.

Major Robinson argues that contrary to what had actually transpired, on March 1, 2011, Chief Sturm authored a disingenuous letter to Major Robinson constituting a written reprimand for the deplorable condition of the evidence room, for moving evidence prior to the performance of the audit, for disobeying a direct order to begin the auditing process on February 21, 2011, for keeping his office door locked, and for jeopardizing the integrity of the department. Continuing | ¾1 thereafter, on March 15, 2011, Chief Sturm wrote to the Vice President of Student Affairs, Dean Edward Pratt, requesting a five-day suspension of Major Robinson, citing his failure to follow through on the orders given to him relative to the evidence room in December 2010 and repeated in March 2011. Notably, all of this occurred before Major Robinson signed his intended retirement papers on May 9, 2011.

Major Robinson also points to the internal investigation which was instituted in May 2011 at the direction of Chief Sturm. This investigation centered around Major Robinson being in possession of evidence in his office after being relieved of his duties as evidence custodian and for an item of evidence that was allegedly missing when an empty cell phone box was found in Major Robinson’s office. Sergeant Abrams, having taken over the duties of evidence custodian, reported the empty box to Chief Sturm. Chief Sturm directed Lieutenant Louviere to conduct a Level I internal affairs investigation. After beginning the investigation, Lieutenant Louvi-ere remembered that he and Major Robinson had previously returned the cell phone to its owner. Major Robinson denied that he executed the necessary property release form, although it contained his name. Although the iPhone was accounted for, Lieutenant Louviere’s investigation resulted in a finding of malfeasance and insubordination based on Major Robinson still having evidence in his office. According to Major Robinson, some of the items which remained in his office were simply unclaimed property. The internal investigation, in his view, was simply another opportunity to “paper” his file.

The final action taken by Chief Sturm, which was the reassignment of Major Robinson to the primate center in New Iberia, was also the subject of trial testimony. ULL minimizes the relevance of this action since it was taken after Major Robinson signed the paperwork indicating his retirement in July 2011; ^however, Major Robinson avers that he could have changed his mind and not gone forward with his retirement. He further contends that this reassignment resulted in yet another reprimand, which he felt was unwarranted.

Chief Sturm’s testimony relative to the primate center was clearly contradicted by the testimony of the other officers, including Lieutenant Broussard, Officer Mendoza, and Sergeant Johnson. Chief Sturm testified that Major Robinson’s transfer to the primate center was due to the need for an administrative position there, and further, that the transfer was not intended as a punishment to Major Robinson. Undeniably, Major Robinson did not suffer a reduction in pay as a result of the reassignment, but the other officers’ testimonies consistently described the assignment as undesirable. The officers all confirmed that the only individuals who were assigned to the primate center were those that lived in the New Iberia area or those that were being “punished.”

For all practical purposes, Major Robinson’s new assignment, which was thirty miles away, put him back in the position of a patrolman. Major Robinson and the other members of the ULLPD perceived this as a demotion. In this newly assigned and lesser position, Major Robinson was given an older vehicle for his transportation to and from New Iberia; and, the new patrol vehicle, which he was using prior thereto, was given to Lieutenant Zerangue, who was permitted full use of the vehicle.

ULL has maintained that if there was any adverse employment action taken against Major Robinson, it was done, not because of his age, but rather as a result of his insubordination. In closely scrutinizing the record of this trial by jury, we find it significant that in order to prove his claim of age discrimination, apart from his own testimony, Major Robinson had to rely upon only employees of the ULLPD. As concluded by the court of appeal, “[a]f-ter viewing the record in its | ^entirety, we find that the jury had conflicting evidence before it and apparently did not find credible defendant’s explanation that Robinson voluntarily retired or that any adverse employment action taken against him was due to his insubordination.” Robinson, 208 So.3d at 522. In this case, the jury found that ULL’s actions were unlawfully motivated. For the foregoing reasons, we find that a reasonable factual basis for the jury’s findings exists, and the record does not demonstrate that the jury’s findings were clearly wrong or manifestly erroneous.

Damages

ULL argues that the jury’s verdict of $367,918.00 was excessive. We agree, finding that the jury’s award is not supported by the evidence in the record.

Major Robinson sought damages for lost wages due to his constructive discharge in July 2011. It was his testimony that had he not been subjected to age-based discrimination, it was his intention to work for the ULLPD for three more years. Further, Major Robinson testified that at the time of his" retirement, he was earning $69,000.00 annually. Consistent with this testimony, in closing arguments, plaintiff’s counsel reiterated .his demand , for three years lost wages.

The manner in which the jury arrived at the damage award of $367,918.00 is not discernable from the record. Lost wages was the sole element of damages for which testimony or other evidence was presented to the jury. There was no general damage award sought by Major Robinson, and no such jury instruction was provided to. the jury. The First Circuit Court of Appeal affirmed the award, but failed to provide any discussion in support thereof in the majority opinion.

It is apparent from the record that the only evidence presented on damages was the element of lost wages. Given Major Robinson’s testimony of an annual salary of $69,000.00, and considering his intention to remain employed for an additional three years, the amount of the award supported by the evidence in the | ^record is $207,000.00, representing three years of wages at $69,000,00 a year, and nothing more. Because we conclude that Major Robinson prevailed on his age discrimination claim, we affirm the judgment below as to liability and amend the damage award as set forth above.

DECREE

For the reasons set forth above, we affirm the jury’s finding of age discrimination in favor of plaintiff, James Robinson. However, we find that the jury’s damage award of $367,918.00 is not supported by the record; therefore, we amend the jury’s damage award to $207,000.00, and affirm the award as amended!.Costs are assessed seventy-five percent to defendant, the Board of Supervisors for the University of Louisiana System, and twenty-five percent to plaintiff, James Robinson. ■

AFFIRMED AS AMENDED.

WEIMER, Justice, dissents and assigns reasons,

WEIMÉR, J.,

dissenting.

hi very respectfully dissent for the reasons assigned by the dissenting judge in the appellate court. Among the most notable reasons is the plaintiff failed to prove age-based comments were attributed to decision-makers, whose actions led to plaintiffs constructive discharge. The age-based comments plaintiff presented at trial were made by police offícérs' who were lower ranking than the plaintiff. The plaintiff failed to show that the-lower-ranking officers were decision-makers for any of the adverse employment actions plaintiff claimed occurred. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (“In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer’s decision.”)

The uncontroverted evidence regarding decision-making authority established that the police chief held and exercised such authority. The police chief assigned plaintiffs duties, cited plaintiff for insubordination, imposed a suspension for the insubordination, and rescinded the suspension when the plaintiff declared his intent to retire. ,

li/The plaintiff had the burden at trial to “prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Plaintiff failed to carry this burden. There was no evidence by which the jury could find an age-based motivation for the police chiefs actions, which is why the plaintiff attempted—unsuccessfully—to equate plaintiffs subordinates as his superiors for the purposes of the employment actions taken prior to plaintiffs announced plan to retire. For the period of time, after the plaintiffs retirement announcement, plaintiff failed to demonstrate the existence of any actionable, adverse employment action that might rise to the level of forcing his hand into a constructive discharge. Even assuming plaintiffs post-retirement announcement assignment to . a brief patrol duty at a university research center constituted an adverse employment action, plaintiff failed to demonstrate age-based animus. Instead-of the change of duties being grounded in age discrimination, the record evidence demonstrates that, after plaintiffs announcement, the police chief changed plaintiffs duties to facilitate transitioning the department to function after the plaintiffs actual retirement.

      . Robinson filed his petition after having received a "right to sue” letter from the United States Equal Employment Opportunity Commission permitting him to file suit,

      . Robinson's petition also named Joey Sturm, individually and in his official capacity as the Chief of Police for ULL, as a defendant. Robinson’s petition also included a claim for breach of contract; however, the breach of contract claim against ULL and Chief Sturm and the claim of age-based employment dis-criminatioh against' Chief Sturm individually were voluntarily dismissed.

      .The reorganization of the ULLPD by Chief Sturm transformed the department from a community-based policing operation to an in- ■ telligence-led policing organization.

      . Major Robinson, also testified that after signing his retirement papers in May 2011, he could have changed his mind and elécted not to retire in July 2011. The record contains no evidence either in support of or in contravention of this testimony.

      . Major Robinson maintains that his duties as evidence custodian were taken from him in December 2010.

      6. Reeves, 530 U.S. 133, 120 S.Ct. 2097.

      . According to the record, by the time of the trial, Lieutenant- Zerangue had obtained the title of Major; however, for consistency and clarity, we refer to him as Lieutenant throughout this opinion. .


author:
Guidry, Justice
     JOHNSON, Chief Justice,

text:
    CENTRAL PROPERTIES v. FAIRWAY GARDENHOMES, LLC, et al. Husker Partners/US Bank d/b/a Husker Partners v. Fairway Gardenhomes, LLC, et al. Husker Partners/US Bank d/b/a Husker Partners v. Fairway Gardenhomes, LLC, et al.
    No. 2016-C-1855, No. 2016-C-1946
    Supreme Court of Louisiana.
    06/27/2017

      ADAIR ASSET MANAGEMENT, LLC, Melisssa T. Castille; FLANAGAN PARTNERS LLP, Thomas More Flanagan, Andy Joseph Dupre, Camille Elise Gauthier; PHELPS DUNBAR, LLP, Harry Alston Johnson, III; US ASSETS, LLC, Van Vy Ky; for Applicant; (No. 2016-C-1855)
    TALLEY, ANTHONY, HUGHES & KNIGHT, LLC, E.B. Dittmer, II; for Respondent. (No. 2016-C-1855)
    TALLEY, ANTHONY, HUGHES & KNIGHT, LLC, E.B. Dittmer, II; for Applicant; (No. 2016-C-1946)
    ADAIR ASSET MANAGEMENT, LLC, Melisssa T. Castille; FLANAGAN PARTNERS LLP, Thomas More Flanagan, Andy Joseph Dupre, Camille Elise Gauthier; PHELPS DUNBAR, LLP, Harry Alston Johnson, III; US ASSETS, LLC, Van Vy Ky; for Respondent. (No. 2016-C-1946)
   Guidry, Justice

|,In this consolidated case, the tax sale purchasers of three condominium units brought actions to quiet title following the tax debtor’s failure to pay ad valorem taxes on the units. The district court found the tax sale purchasers had provided insufficient notice of the right to redeem to the mortgagee for the units, denied the petitions to quiet title, and afforded the defendant mortgagee thirty days to redeem the properties. A majority of the court of appeal affirmed on different grounds, finding that the failure of the tax collector to provide post-sale written notice of the tax sale to the mortgagee required the tax sales to be set aside, whether or not the tax sale purchaser had effected such post-sale notice on the mortgagee. Essentially the court held that a private actor could not duly notify an interested party of its redemption rights, but that the tax collector itself, lest the tax sale, be deemed null and void, must effect such post-sale notice •given the mandatory language of the | ¡¡statute. Thus, the issue presented is whether the post-sale notice required by La. Rev. Stat. 47:2122(4) may be effectuated either by the tax collector under La. Rev. Stat. 47:2156(B) or by the tax sale purchaser under La. Rev. Stat. 47:2156(A). We granted the writ application to answer this narrow question under the 2008 revisions to Title 47 of the Louisiana Revised Statutes governing the collection of ad va-lorem taxes, more specifically the statutes governing tax sales and redemptions, La. Rev. Stat. 47:2141 et seq. After our review of the applicable statutes, we find the court of appeal erred in finding the failure of the tax collector, though mandated to do so by La. Rev. Stat. 47:2156(B), to mail or attempt to mail post-sale written notice of the tax sales to the mortgagee required the tax sales to be set aside. Instead, we find the plain language of the governing statutes allows post-sale notice to the interested tax party to be provided by a tax sale purchaser in accordance with La. Rev. Stat. 47:2156(A), and thus the requirement that the interested party must be duly notified of the tax sale under La. Rev. Stat.-47:2122(4) could be satisfied by the tax salé purchaser. Accordingly, we reverse thé judgment of the court of appeal, and remand the case to that court for consideration of the issues pretermitted by the court of appeal’s reasoning.

FACTS AND PROCEDURAL HISTORY

The underlying facts relevant to our decision today are not in dispute. The subject properties, Units 13, 14, and 15, were owned by Fairway Gardenhomes, L.L.C. (“Fairway”), and located in Covington, Louisiana. In January 2009, the mortgagee, Resource Bank, granted a loan to La-porte Family Properties, L.L.C. (“La-porte”), which was secured by a mortgage covering the subject properties.. The | ¡¡mortgage was recorded in the St. Tammany Parish public records on January 9, 2009.

In 2009, Fairway failed to pay the ad valorem taxes due on the three properties. As a result of the tax delinquency, a tax sale was conducted by the Sheriff and Ex-Officio Tax Collector for St. Tammany Parish (the tax collector) on June 23, 2010. The properties were sold to tax sale purchasers, Central Properties (“Central”) and Husker Partners/U.S. Bank, d/b/a Husker Partners (“Husker”), for. the amount of taxes, interest, and costs due .on each condominium unit. Individual tax sale certificates were issued to Central for unit 14, and Husker for units 13 and 15.

The tax sale certificates, recorded in the St. Tammany Parish public records on July 8, 2010, stated the owner; Fairway, had three years from" the date of recordation, or until July 8, 2013, to-redeem the subject properties. The tax .sale certificates did not refer to the mortgagee’s, Resource Bank’s, interests in the subject properties. The tax collector mailed pre-sale and post-sale notices to Fairway, but those notices were returned, unclaimed. The parties, stipulated the tax collector did not send any pre-sale or post-sale notices to the mortgagee, Resource Bank.

On October 25, 2012, through certified and regular First Glass mail, the,tax sale purchasers, Central and Husker, mailed multiple notices of the right to redeem' the tax sales of the properties to Fairway, Laporte, and Resource Bank. Fairway and Laporte each received by certified mail the notices of the right to redeem, through their registered agent for service of process, Leroy J. Laporte, Jr., on October 29, 2012. The return receipts for right to redeem notices sent to Resource Bank were signed by a person with the initials “JL” on October 27-, 2012, and the | ¿notices were mailed to Resource Bank’s main office address as noted on the recorded mortgage documents. Resource Bank, however, disputed receipt of the notices and denied there was any employee working at Resource Bank in 2012 who had the initials of “JL”.,

None of the subject • properties was timely redeemed by the July 8, 2013 deadline'for-redemption. Thereafter, on December 18, 2013, Central and Husker filed petitions to quiet their tax titles on the properties, alleging Fairway, Laporte, and Resource Bank were all duly notified of their statutory rights to redeem the subject properties more than six months prior to the expiration of the three-year redemptive period. Resource Bank timely answered the petitions and filed reconven-tional demands against Central and Husker, seeking to invalidate the tax sale certificates as nullities due to the lack of pre-sale notices, as well as insufficient or unreasonable post-sale notices of its right to redeem. Resource Bank further alleged that, to the.extent the 2008 revision to.the law governing tax sale notices may have limited its light to annul the sales for lack of.pre-sale notice, the law. was unconstitutional.

At the bench trial, the parties entered certain stipulations, including that: (1) the subject properties had not been timely redeemed, (2) Resource Bank made no formal statutory request for notice, and (3) no pre-sale notice of either the tax delinquencies or tax sales was given to Resource Bank. Thereafter, the district court concluded Central and Husker’s post-sale notices of the right to redeem mailed to Resource Bank, were insufficient. The district court, as the court of appeal majority acknowledged, seemingly focused on the credibility of Resource Bank’s vice president’s testimony that there was no record of the notices ever being received by Resource Bank. Specifically, the district court reasoned: ..

[ fi[T]he Court is of the opinion that notice was not sufficient in this case. Specifically, the Court gave great consideration to the property rights held by Resource Bank through its security interest evidenced by the mortgage. Bearing in mind that the state of . the law at the time required no pre-sale notice be given, the Court feels; that Plaintiffs’ efforts to notify Defendants of the tax sale and redemption were not reasonable. Though Plaintiffs had ‘no duty to seek out Resource Bank’s, registered agent, that person’s identity was easily discoverable either online or by a simple phone call. -The Court also found the testimony of Mr. Ferrer persuasive as to lack of notice. The Court is of the'opinion that the initials “J.L.”—and nothing else—as is displayed on the return receipts of the notice letters, could be used just as easily to prove that the letters were not received by Resource Bank. Therefore, the Court attaches little or no weight to the “green cards” in the record as evidence of notice.

The district court declined to make a ruling on the constitutionality of the 2008 revision as it related to the lack of pre-sale notification to Resource Bank, Ultimately, the district court denied Central and Husker’s petitions to quiet tax title and allowed Resource Bank thirty days to redeem the subject properties.

| fiCentral and Husker suspensively appealed, maintaining the district court legally erred when it focused on whether Resource Bank had actually received the post-sale notices of the right to redeem. Resource Bank answered the appeal, challenging the district court’s failure to grant its reconventional demands seeking to annul the tax sales on the basis it was undisputed Resource Bank was not given any pre-sale notice. Further, Resource Bank argued that Central and Husker’s efforts to provide post-sale notice of Resource Bank’s right to redeem were unreasonable or insufficient. Central and, Husker maintained on appeal that, under the 2008 statutory revision, which became effective January 1, 2009, any issues with pre-sale notice requirements may be cured by the sending of post-sale redemption notices. Resource Bank countered that, if the 2008 revision is interpreted to have eliminated pre-sale notice requirements for mortgagees, the revision violates due process of law. Resource Bank further argued that post-sale notice of the right to redeem cannot cure the lack of pre-sale notice.

The court of appeal majority affirmed the district court’s judgment, but did not do so based on any of the arguments made by the parties. Central Properties v. Fairway Gardenhomes, LLC, 16-0111 (La. App. 1 Cir. 9/16/16), 204 So.3d 240. Instead, with regard to post-sale notice, the court relied on La. Rev. Stat. 47:2156, entitled “Post-sale notice,” which requires that the post-sale notice be sent by the tax collector to tax sale parties, including any mortgagees identified in the public records, so long as the mortgagee’s interest was filed prior to the filing of the tax sale certificates. The majority focused on La. Rev. Stat. 47:2156, and the version effective at the time of the 2010 tax sales provided in pertinent part:

A. Within the applicable redemptive period, the tax sale purchaser may send a written notice to any or all tax sale parties notifying the parties of the sale.
|7B. For each property for which tax sale title was sold at tax sale to a tax sale purchaser:
(1) If the redemptive period is greater than two years, each January or as soon as practical thereafter, each tax collector shall send a written notice by United States mail, postage prepaid, to each tax notice party and each tax sale party whose interest would be shown on a thirty-year mortgage certificate in the name of the tax debtor and whose interest was filed pri- or to the filing of the tax sale certificate that tax sale title to the property has been sold at tax sale.
* * *
(2) The notice shall be given until the end of the applicable redemptive period. ... [Emphasis added.]

The majority noted that Resource Bank’s mortgage interest was recorded well before the filing of the tax sale certificate and that the tax collector had not mailed or attempted to mail the mandatory post-sale written notice of the tax sales to Resource Bank, who was a tax sale party within the meaning of La. Rev. Stat. 47:2122(19). Because the tax' collector failed to provide the mandatory post-sale notices to Resource Bank, the majority found that Resource Bank had a valid ground to have the tax sales nullified based on that omission. The majority cited La. Rev. Stat. 47:2286, which provides that “[n]o tax sale shall be set aside except for a ... redemption nullity ... [and] the action may be brought as a reconventional demand ... in an action to quiet title ...,” which Resource Bank did in this case. Because Resource Bank was not “duly notified” by the tax collector as mandated by La. Rev. Stat. 47:2156, the majority found the tax sales were null, reasoning that the mortgagee was not afforded its right to due process. The court of appeal majority found the notice given by the tax sale purchaser was simply optional and implicitly concluded that, even if such notice was sufficient and reasonable, it would not satisfy the requirements of due process.

|sWe granted writs to review the correctness of that holding. Central Properties v. Fairway Gardenhomes, LLC, 16-1855, 16-1946 (La. 1/9/17), 214 So.3d 857, 860.

DISCUSSION

The issue presented is whether post-sale notice to a tax sale party effected by a private party, the tax sale purchaser under La. Rev. Stat. 47:2156(A), in the absence of the post-sale notice required to be made by the tax collector under La. Rev. Stat. 47:2156(B), satisfies the requirement that the interested party be duly notified of the tax sale under La. Rev. Stat. 47:2122(4). The plaintiffs argue the 2008 revision of the statutory scheme governing tax sales created a system in which failure by the tax collector to give the requisite post-sale notice of the tax sale to any interested party is a relative nullity capable of being cured by notice provided by the tax purchaser. The defendant mortgagee does not address that argument, but instead maintains the post-sale notices provided by the tax sale purchasers were insufficient and that their efforts in notifying the mortgagee were not reasonably calculated to apprise it of the tax sale and its redemptive rights "within the deadline prior to the expiration of the redemptive period, an issue the appellate court majority never reached. For the reasons set forth below, we find notice of the tax sale to the mortgagee effected by the tax sale purchaser satisfies the required notice.

It is well-settled that, under the Fourteenth Amendment to the United States Constitution and La. Const, art. I, § 2, deprivation of property by adjudication must be preceded by notice and opportunity to be heard appropriate to the nature of the case. Mullene v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950); Tietjen v. City of Shreveport, 09-2116, pp. 4-5 (La. 5/11/10), 36 So.3d 192, 194-95; Smitko v. Gulf South Shrimp, Inc., 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755-56. In Mullane, the Supreme Court established that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” 339 U.S. at 314, 70 S.Ct. at 657; see also C & C Energy, L.L.C v. Cody Investments, L.L.C., 09-2160, pp. 6-7 (La. 7/6/10), 41 So.3d 1134, 1138; Tietjen, 09-2116, p. 5, 36 So.3d at 195; Hamilton v. Royal Int’l Petroleum Corp., 05-846, p. 9 (La. 2/22/06), 934 So.2d 25, 32.

In Mennonite Bd. of Missions v. Adams, the Supreme Court recognized the sale of property for nonpayment of taxes is an action affecting a property right protected by the Due Process Clause of the Fourteenth Amendment. 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983). In Mennonite, the mortgagee of a property contested a tax sale that occurred after the homeowner had failed to pay her property taxes. 462 U.S. at 794, 103 S.Ct. at 2709. The mortgagee was not provided notice of the homeowner/mortgagor’s delinquent payment of the taxes or the subsequent tax sale. Id. The Supreme Court held that “a mortgagee possesses a substantial property interest that is significantly affected by a tax sale” and therefore “is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Id. at 798, 103 S.Ct. at 2711. The Supreme Court stated: “Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” Id. at 800, 103 S.Ct. at 2712. Because the mortgagee was not afforded its constitutional right to due process, the Supreme Court reversed the decision that upheld the tax sale. Id.

Article VII, Section 25(A) of the Louisiana Constitution of 1974 requires the tax collector to provide notice “in the manner provided by law” of the tax delinquency and the tax sale to all owners of record of any interest in the property. Lewis v. Succession of Johnson, 05-1192 (La. 4/4/06), 925 So.2d 1172; C & C Energy, 09-2160, p. 7, 41 So.3d at 1139; Smitko, p. 9, 94 So.3d at 756.

As an initial matter, we confine our review to the statutes in effect at the time of the tax sale in 2010. As explained below, and .noted elsewhere, the law governing the payment and collection of property taxes, , tax sales, and adjudicated property, in particular the manner by which the requisite constitutional notice is effected, was substantively revised by the legislature in.2008 by La. Acts, No. 819, effective January 1, 2009. Act 819 of 2008 re-enacted Chapter 5 of Subtitle III of Title 47 of the Louisiana Revised Statutes, and that law has since been amended several times. As the lower courts recognized, it is the language in effect at the time of the tax sale in 2010 that applies to this sale, and that we consider today.

The interpretation of any statutory provision starts with the language of the statute itself. Oubre v. La. Citizens Fair Plan, 2011-0097 (La. 12/16/11), 79 So.3d 987, 997, When the provision is clear and unambiguous and its application does not lead.to absurd consequences, the language must be given effect, and the | ^provision must be construed so as to .give effect to the purpose indicated by a fair interpretation of the language used. La. Civ. Code art. 9; La. Rev. Stat. 1:4, Although the Official- Revision Comments connected with' statutes are not the law, they can be useful in determining legislative intent. Arabie v. CITGO Petroleum Corp., 10-2605 (La. 3/13/12), 89 So.3d 307, 312.

. The purpose of Act 819 of 2008, as set forth in La. Rev. Stat. 47:2121(A), is to encourage the . payment and efficient collection pf.property taxes, satisfy the requirements of due process,.provide a fair process for the redemption pf tax sale property, and encourage the return of such properties to commerce. Under the amended law, when a property owner fails to pay ad valorem property taxes, the parish, through its tax collector, has a lien by operation of law against the property for the , unpaid taxes. La. Rev. Stat. 47:1993(G)(“[T]he day the [tax] roll is filed in the recorder’s office, it shall as act as a lien upon each specific piece of real estate thereon assessed, which shall be subject to a legal mortgage after the thirty-first day of December of the current year for the payment of the tax due on it....”). Under the tax sale laws as. amended in 2008, the tax collector no longer auctions the real estate itself; instead, the tax collector auctions a tax.sale title to the property, as evidenced by a tax sale certificate per La. Rev. Stat, 47:2155, which neither transfers nor terminates the property interest of any person in the property. See La. Rev. Stat..47:2121(B)(“No tax sale shall transfer or terminate the property interest of any person-in tax sale, property, or adjudicated property until that-person has been duly notified and ... the redemptive period ... [has] terminated”; La. Rev. Stat. 47:2121(C)(“A tax sale title confers on the tax sale purchaser ,. only tax sale title. If the- tax sale property is not redeemed within the redemptive period, then at the termination of the redemptive period, tax sale title transfers to its holder ownership of the tax sale property... .”) A “tax sale title” is defined as “the set of h ¿rights acquired by a tax sale purchaser ... pursuant to this Chapter.” La. Rev. Stat. 47:2122(22). Thus, we recognize the term “tax- sale” actually denotes that it is the tax lien that is purchased in the form of a tax sale title, albeit with future rights of ownership after due notice -to all “tax sale parties” and the expiration of the redemptive period, as well as the filing of a suit to quiet title. See, generally, Comment, Louisiana Tax Sales: A Mystery Unraveled, 41 S.U. Law Rev. 345 (2014).

The majority below found the tax sales at issue were required to be set aside because the tax collector had not mailed or attempted to mail post-sale written notice of the tax sales to the mortgagee, Resource Bank, as required by La. R.S. 47:2156(B). Because such notice was mandatory under the language of the statute, the majority found it irrelevant that the tax sale purchaser, a private party, had actually sent notice in compliance with the statute. We disagree with such reasoning, because, the plain language .of the applicable statute provides that post-sale notice provided by a tax sale purchaser to an interested party in accordance with La. Rev. Stat. 47:2156(A) satisfies the requirement that the interested party be duly notified of the tax sale under La. Rev. Stat. 47:2122(4).

Under the 2008 revisions to the tax sale laws, there are three grounds to nullify a tax certificate sale: “No tax sale shall be set aside, except for. a payment nullity, redemption nullity, or a nullity under R.S. 47:2162, all of which are relative nullities.” La. Rev. Stat. 47:2286. The type of nullity at issue in this case-is the redemption nullity, which refers to the right of a person to annul a tax sale in accordance with La. Rev. Stat. 47:2286 “because he was not duly notified at least six months before the termination of the redemptive period.” La. Rev. Stat. 47:2122(10).

hsThe 2008 revision of Title 47 provides that an interested person is “duly notified” in accordance with La. Rev. Stat. 47:2122(10) when “an effort meeting the requirements of due process of law has been made to identify and to provide that person with a notice that meets the requirements of R.S. 47:2156, 2157, 2206, 2236, or 2275 ... regardless of ... [wjhether the effort resulted in actual notice to the person[,] [or] [w]hether the one who made the effort was. a public official or a private party.” La. Rev. Stat. 47:2122(4). In pertinent part, La. Rev. Stat. 47:2156 provides: . .

A. Within the applicable redemptive period, the tax sale purchaser may send a written notice to any or all tax sale parties notifying the parties of the sale. The notice shall provide full and accurate information necessary to' contact the tax sale purchaser, including the name, physical address; and telephone number of the purchaser. It shall be accompanied. by a copy-of the tax sale certificate received by the tax sale purchaser under the provisions of this Part and copies of the documents that the purchaser received with that sale. The notice shall inform the tax sale parties that the' failure to redeem the property prior to the expiration of the applicable redemptive period will terminate the right to redeem the property, and the purchaser will have the right to seek confirmation of the tax title and take actual possession of the property. The notice shall be sufficient if it is in the form set forth in Subsection B of this Section.
B. For each property for which tax sale title was sold at tax sale to a tax sale purchaser:
(1) If the redemptive period is greater than two years, each January or as soon as practical thereafter, each tax collector shall send a written notice by United States mail, postage prepaid, to each tax notice party and each tax sale party whose interest would be shown on a thirty-year mortgage certificate in the name of the tax debtor and whose interest was filed prior to the filing of the tax sale certificate that tax sale title to the property has been sold at tax sale.
(2) If the redemptive period is two years or less, within thirty days after filing a tax sale certificate to a third party, and thereafter each January and June or as soon thereafter as practical, each tax collector shall send a written notice by United States mail, postage prepaid, to each tax notice party and each tax sale party whose interest would be shown on a thirty-year mortgage certificate in the name of the tax debtor and whose interest was filed prior to the filing of the sale that tax sale title to the property has been sold at tax sale.
| u(3) The notice shall be given until the end of the applicable redemptive period. The notice shall specify the property upon which the taxes are delinquent, the amount of taxes due, and the manner in which the property shall be redeemed and shall be sufficient if [set forth in accordance with the statutory form].

Although the court of appeal majority rightly noted La. Rev. Stat. 47:2156(B) uses the mandatory “shall” in setting forth the requirements of the post-sale notice that must be provided by the tax collector to interested parties, the court below ignored the clear language in La. Rev. Stat. 47:2122(4), which provides that an interested party may be duly notified through post-sale notice that meets the requirements of La. Rev. Stat. 47:2156, regardless of whether such notice is effectuated by a public official or a private party. The majority, in finding the tax collector’s failure to provide the requisite notice to Resource Bank rendered the tax sale void, fashioned a remedy for such failure that was not specifically provided for in La. Rev. Stat. 47:2122(4), which explicitly states that it is irrelevant whether the requisite post-sale redemption notice is provided by “a public official or a private party,” that is, regardless of whether the post-sale notice is provided by the tax collector under Subsection 2156(B) or the tax sale purchaser under Subsection 2156(A). The majority went astray in not harmonizing these provisions and not effectuating the legislature’s intent to adopt a statutory scheme under which the failure of the taxing authority to give notice to an interested party under La. Rev. Stat. 47:2156(B) is a relative nullity capable of being cured by post-sale notice provided by the tax sale purchaser under La. Rev. Stat. 47:2156(A). The intent of the legislature is revealed in the 2008 Official Revision Comments to La. Rev. Stat. 47:2156, which provide: “To the extent that a person is duly notified pursuant to other provisions of this Chapter and fails to take action in the applicable time period, the failure to give the notices provided in this Section do |1finot give rise to an action based on a redemption nullity.” La. Rev. Stat. 47:2156-Cmt. (f). The legislative intent is mirrored in La. Rev. Stat. 47:2121(D), which provides in pertinent part:

Except for acts or omissions that result in redemption or payment nullities, none of the provisions in this Chapter concerning notices or procedures required in connection with a tax sale provide a ground for nullifying: (1) The tax sale; (2) The transfer at the end of the redemptive period of the ownership of the property to which the tax sale title has been issued; (3) The transfer or termination of any duly notified person’s interest in the tax sale property...

Another Louisiana appellate court has reached a similar conclusion as we do today. In Adair Asset Management, LLC v. Turney, 50,574 (La.App. 2 Cir. 5/4/16), 195 So.3d 501, the appellate court interpreted the 2008 revision, including the provisions of La. Rev. Stat. 47:2156, and held that no redemption nullity occurred with respect to the tax sale of certain immovable property where the tax sale purchaser mailed post-sale redemption notices to all interested parties prior to expiration of the redemptive period in accordance with La. Rev. Stat. 47:2156(A). There, the trial court held the tax sales at. issue were null and void based upon the failure of the taxing authority to provide proper pre-sale notice to all interested parties in violation of the constitutional due process guarantees set forth in Mennonite. In the Adair Asset Management case, the record was not clear-who had provided the post-sale notice, whether it was the tax collector or the tax sale purchaser. Notwithstanding the possibility the tax collector, had failed to provide post-sale notice to the interested parties as required by La. Rev. Stat. 47:2156(B), the court held the tax sales were valid, reasoning: “According to [S]ubsection 2122(4), it does not matter who .sends the notice, public official or private party.... Therefore, any deficiency in the notices sent by the City was, in effect, ‘cured’ by the [post-sale] notices sent by [the tax sale purchaser].” Adair Asset Management, LLC, 195 So.3d at 511. The court reasoned that La. Rev. Stat. 47:2156(A) “supplies tax sale purchasers with the option to safeguard their purchase from nullity by allowing them to send post-sale notice of the right to redeem to interested parties, at least six months before the expiration of the redemption period.” Adair Asset Management, LLC, 195 So.3d at 511.

CONCLUSION

For the reasons above, we find that, under the 2008 legislative revision governing tax sales and redemptions, La. Rev. Stat. 47:2141 et seq., the court of appeal erred in finding the failure of the tax collector, albeit mandated to do so by La. Rev. Stat. 47:2156(B), to mail or attempt to mail post-sale written notice of the tax sales to the mortgagee required the tax sales to be set aside. Instead, we hold that, under the language of the applicable statutes, post-sale notice to the interested tax party may be effectuated by a tax salé purchaser in accordance with La. Rev. Stat. 47:2156(A), and thus the requirement that ■ the interested party must be duly notified of the tax sale under La. Rev. Stat. 47:2122(4) may be satisfied by the tax sale purchaser. Accordingly, we reverse the judgment of. the court of appeal and remand the case to that court for consideration of the pretermitted issues.

REVERSED AND REMANDED

Johnson, C.J., dissents and assigns reasons.

JOHNSON, Chief Justice,

dissents and assigns reasons.

hi respectfully dissent, finding the majority errs in holding post-sale notice to an interested tax party can be effectuated by a tax sale purchaser.

La. R.S. 47:2156 sets forth the requirements for post-sale tax notice and provides, in pertinent part:

B. (1) For each property for which tax sale title was sold at tax sale to a tax sale purchaser, each collector shall within thirty days of the filing of the tax sale certificate, or as soon as practical thereafter, provide written notice to the following persons that tax sale title to the property has been sold at tax sale. The notice shall be sent by postage prepaid United States mail to each tax notice party and each tax sale party whose interest would be shown on a thirty-year mortgage certificate in the name of the tax debtor and whose interest was filed prior to the filing of the tax sale certificate.

In. this case, Resource Bank was not duly notified by the tax collector as mandated by the statute. In my view, the mandatory language in La. R.S. 47:2156, requiring | ..an official tax collector to provide notice, cannot be satisfied through notice provided by ■ the tax purchaser, a private entity.

For this reason, I would affirm the ruling of the court of appeal, declaring the tax sales null and void for want of due process.

       Retired Judge Walter James Rothschild, assigned as Justice ad hoc, sitting for Hughes, J., recused.

      . The court of appeal majority declined to consider whether the notices provided by the tax sale purchaser to the mortgagee were reasonable. Furthermore, neither the district court nor the court of appeal reached the constitutional issues raised by the mortgagee as to whether procedural violations in noticing the tax sale, such as the lack of pre-sale notice, may void the tax sale.

      . As the district court noted, at the time of the tax sale in 2010, La. Rev. Stat. 47:2153(A) did not require Resource Bank to be notified .of the delinquency or tax sale, unless it was a “tax notice party.” Prior to the 2012 revision, La. Rev. Stat. 47:2153(A) provided for notice of the delinquency and the tax sale to each "tax notice party,” A "tax notice party” is defined in La. Rev. Stat. 47:2122(16), as the tax debtor and any person requesting notice pursuant to La. Rev. Stat. 47:2159, which provides that any person may request that all notices that are sent to a tax debtor also be sent to the requesting person. According to La.- Rev. Stat. 47:2159, "[a] mortgage holder who has requested notice and paid the fee shall receive notices until such time that the tax collector receives notice of the cancellation of the mortgage inscription.” Resource Bank did not request such notice, and thus was not a "tax notice party” within the meaning of the statute. Some courts have held that the mortgagee does not waive its right to prior notice of the tax sale by failing to request notice of delinquency. At any rate, the legislature makes a distinction between a “tax notice party” and a “tax sale party.” Under La. Rev. Stat. 47:2122(19), a “tax sale party” is "the tax notice party, the owner of property, including the owner of record at the time of the tax sale, as shown in the conveyance records of the appropriate parish, and any other person holding an interest, such as mortgage, privilege, or other encumbrance on the property, including a tax sale purchaser, as shown in the mortgage and conveyance records of the appropriate parish.” Thus Resource Bank is a "tax sale party” within the meaning of the statute.
      As amended in 2012, La. Rev. Stat. 47:2153(A)(l)(a) now requires the tax collector to send by certified mail, return receipt requested, written notice to each tax sale party when the tax debtor has not paid the taxes imposed on the property, that the taxes must be paid within twenty days of the notice or before the tax sale is scheduled, or the tax sale tide will be sold according to law. La. Rev. Stat. 47;2153(C)(1), as revised, provides in pertinent part: "In the absence qf actual notice of the sale to a tax sale party ... including a transferee, or the demonstration of a reasonable effort to provide notice, where the name and address of the tax sale party were reasonably ascertainable the tax collector shall cancel the sale of the property and refund the tax sale purchaser the tax sale purchase.” Thus/Resource Bank, as the holder of a mortgage as shown in the mortgage and conveyance records of St. Tammany Parish, is a tax sale notice party and would be entitled to notice of the tax sale under La. Rev. Stat, 47:2153(A), as amended in 2012.

      . As explained below, the legislature changed the law in 2008 with regard to the manner by which notice of delinquencies in immovable property taxes must be provided in compliance -with La. Const. art. VII, § 25, Smitko, for example, analyzed the law prior to the 2008 amendment, namely former La. Rev. Stat. 47:2180, Under the former law, “in order to give property owners reasonable notice so as not to deprive them of constitutionally protected property rights, the tax collector [was] required to provide ‘each taxpayer’ with written notice, sent by certified mail return receipt requested, alerting each record owner of the immovable properly that the owner’s failure to pay the taxes within twenty days will result in the sale of the property.” Smitko, pp, 10-11, 94 So.3d at 757 (quoting C & C Energy, 09-2160, p. 7, 41 So.3d at 1139). Failure to provide this notice was deemed fatal to a tax sale. Id. (relying on Lewis, 05-1192, pp. 8-9, 925 So.2d at 1177, and C & C Energy, 09-2160, pp. 6-7, 41 So.3d at 1139)).