text:
    Michael SWINEA Plaintiff-Appellee v. HUMANA INC. Defendant-Appellant
    No. 51,179-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 15, 2017

      BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, By: Katherine L. Cieardo, Errol J. King, Jr. Counsel for Appellant
    LAW OFFICES OF GARY D. NUNN, By: Gary D. Nunn Counsel for Appellee
    Before PITMAN, GARRETT, and STONE, JJ.
   GARRETT, J.

It Humana, Inc., appeals from a trial court judgment denying its request to annul a default judgment rendered against it. The plaintiff, Michael Swinea, answers the appeal, seeking attorney fees for responding to Humana’s appeal. We affirm the trial court judgment and award the plaintiff additional attorney fees of $1,000.

FACTS

The plaintiff was employed at Graphic Packaging in West Monroe when he became disabled around April 1, 2012. He was covered by a disability insurance policy obtained through his employment from Kanawha Insurance Company (“Kana-wha”). He was paid disability benefits of $2,700 per month until November 15, 2013, when they were terminated.

The plaintiff received a letter from Hu-mana dated November 25, 2013, informing him of the termination decision and his appeal rights. The name “Humana” appears in large, bold letters in the top left-hand corner of this document, with the phone number, name and mailing address of Kanawha underneath it in much smaller, non-bold print. In pertinent part, the letter recited:

Your claim has been denied
Dear Michael Swinea:
We recently received your claim regarding your disability benefits. However after a thorough review, the claim is denied as the submitted services are not covered benefits on your policy.
Per your policy:
Total Disability—means, for the first 24 months of a disability that the Member is:
|¾* Unable to perform the substantial and material duties of His Regular Occupation;
• Not working in any other occupation; and
• Under the care of a Physician for the disability.
After (24) months of Total Disability, Totally Disabled means that the Member is[:]
• Unable to perform the duties of Any Occupation; and
• Under the care of a Physician for the disability.
We will not require care of a Physician when it is no longer needed for the sound medical care of the condition causing Total Disability.
Information submitted did not warrant further disability beyond 11/15/13.
If you disagree with our claim determination, you do have the right to appeal the decision. Enclosed you will find your appeal rights and how to file an appeal with Humana.
We value you as a policyholder and appreciate the opportunity to be of service to you.

The accompanying document entitled “Your Appeal Rights” specified that appeals be sent to an address in Lancaster, South Carolina, for “Grievance and Appeals.” The last line in this document stated, “Insured by Kanawha Insurance Company, a Humana company.” Both this document and the letter contained a notation in the bottom left-hand corner which read:

Humana.com
InSystem

The plaintiff appealed the denial. In a letter dated January 3, 2014, the plaintiff was advised that the matter was being researched. The letter specifically stated:

Thank you for your inquiry we received on January 2, 2014. We are currently doing research and will send a decision letter within the required timeframe. Please be assured we’re committed to providing a full and fair review.
IsYou are covered by Kanawha Insurance Company, a subsidiary of KMG America, under a disability plan from April 1, 2012 to present, Humana, Inc. acquired KMG America on November 30,2007.

The letter instructed the plaintiff to send any other documents he wanted included in the review to “Humana Inc., Grievance and Appeal Department” at the same Lancaster, South Carolina post office box address provided in the previously sent appeal rights document. The letter was signed by a person who identified herself as a specialist for “Humana Grievance and Appeal Department.”

The plaintiff received another letter, which was dated January 27, 2014, and purported to be from a different specialist for “Humana Grievance and Appeal Department.” The letterhead on this document consisted solely of the word “Huma-na” in large, bold letters in the top left corner of the first page of the two-page letter. The letter stated:

We disapproved your request for disability benefits because from November 16, 2013, forward because [sic] the claim was processed correctly according to the terms of the plan.
You are covered by Kanawha Insurance Company, a subsidiary of KMG America, under a disability plan from April 1, 2012, through the present. Humana Inc. acquired KMG America on November 30, 2007.
This decision was based on review of your appeal request, the claim submission, medical records, and the disability plan. The information was reviewed by an independent external reviewer, a board certified orthopedic surgeon.
Disability benefits are limited as specified in the plan. The plan defines Totally Disabled as the inability of the employee to perform their job duties, not working in any other occupation, and be under [sic] the care of a physician. The report from the external reviewer stated that the clinical notes do not support there is an indication for total disability from November 16, 2013, forward. The documentation supports you have some limitations, but these are not supported with any physical therapy (PT) notes or significant exam findings. Therefore, no additional benefits are payable.

| ¿The plan states on page 15:

Totally Disabled (Total Disability) means, for the first 24 months of a disability that You are:
• Unable to perform the substantial and material duties of Your Regular Occupation;
• Not working in any other occupation; and
• Under the care of a Physician for Your disability.
After 24 months of Total Disability, Totally Disabled means that You are:
• Unable to perform the duties of Any Occupation or employment for which You are qualified by reason of education, training, or experience and which provides You with substantially the same earning capacity as Your former earning capacity prior to the start of Your Disability; and
• Under the care of a Physician for Your disability.
We will not require care of a Physician when it is no longer needed for the sound medical care of the condition causing Total Disability!.]

The letter then informed the plaintiff that he could obtain a copy of “any guideline, criteria or clinical rationale” relied upon by the company by sending a written request to “Humana Inc., Grievance and Appeal Department” at the same Lancaster, South Carolina post office box address previously given in the company’s correspondence with him, In the final paragraph of the letter, the plaintiff was urged to “[b]e sure to visit humana.com, where you can check claim status, verify eligibility, and find answers to commonly asked questions, 24 hours a day, seven days a week.” (Emphasis theirs.)

Thereafter, the plaintiff retained counsel, who sent Humana/Kanawha a demand letter dated May 15, 2014, by certified mail. No response was made to the demand letter and the disability benefits were not reinstated.

|fiOn October 8, 2014, the plaintiff filed suit against Humana, asserting that it was “a foreign insurance company authorized to do and doing business in the State of Louisiana” which could be served through the Louisiana Secretary of State. He further alleged that he was receiving disability payments of $2,700 per month at the time his benefits were cut off. Consequently, he sought benefits totaling«$14,850, from November 16, 2013, through April 28, 2014, at which time his total disability ended when he returned to work. He also requested attorney fees and double damages under La. R.S. 22:1821, as well as interest and court costs. Service on Huma-na was made through the Louisiana Secretary of State.

On February 4, 2015, a preliminary default was entered against Humana. The default was confirmed on July 22, 2015. At the beginning of the confirmation hearing, the trial court questioned whether service on the Louisiana Secretary of State was appropriate. Plaintiffs counsel informed the court that, to his knowledge, Humana did not have a registered agent for service of process.

Testimony was given by the plaintiff as to his total knee replacement surgery and the ensuing disability, which commenced on or about April 1, 2012, and ended on April 28, 2014, when he returned to work. He stated that, under a disability insurance policy obtained through his employment, he received disability payments of $2,700 per month until they were terminated on November 15, 2013. He received the letter from Humana dated November 25, 2013, informing him of the termination decision and his appeal rights. The plaintiff testified that he was unable to perform the duties of any occupation until April 28, 2014, that he did not work in any other occupation, and that he was under the care of a physician for his disability. |fiHe further stated that his physicians documented that he was qualified for total disability under the policy. He testified that he was owed $14,850 in unpaid disability benefits.

The plaintiff introduced into evidence all of the letters exchanged between himself and Humana described above, as well as letters and affidavits from his physicians. In their affidavits, Dr. Randolph Hill Taylor and Dr. Clyde E. Elliot stated that they treated the plaintiff for his knee problems, including his total knee replacement in March 2013, and attested to his inability to perform his work duties. In an October 2013 letter, Dr. Elliot opined that the plaintiff was permanently impaired/disabled with little reasonable expectation of improvement. In a March 2014 letter, Dr. Taylor—who performed the plaintiffs total knee revision—released the plaintiff to return to work on April 28, 2014, with no restrictions or limitations. The plaintiff testified that he returned to work for six months, but the doctors subsequently “took me back off.” At the time of the hearing, he was not working. The plaintiff asserted that he had complied with every request made by the insurer and that no independent medical exam was ever requested or conducted. On the issue of attorney fees, the plaintiff testified that he agreed to pay his lawyer one-third of his recovery.

At the conclusion of the hearing, the trial court rendered judgment in favor of the plaintiff. It specifically found that service of process was proper and that an award of double damages under La. R.S. 22:1821 was appropriate. The judgment signed that day awarded the plaintiff $29,700,17plus attorney fees of $9,900, legal interest from the date of judicial demand, and court costs.

On August 20, 2015, Humana filed a motion for new trial on the basis that it is not an insurance company. In support of the motion, it submitted the affidavit of its senior litigation manager, Lori Mattingly. She stated that Humana was a Delaware corporation with a principal place of business in Louisville, Kentucky; that it was not registered to do business in Louisiana; that it never designated the Louisiana Secretary of State as its agent for service of process; that it is not an insurance company, and does not serve as a third-party administrator or claims adjudicator; and that it was not responsible for the payment of claims or the determination of coverage under any insurance policy. She further attested that Humana did not issue any insurance policy to or otherwise contract with the plaintiff. She stated that she had reviewed Humana’s records as to the plaintiff; that he was covered under a policy for group disability income insurance issued by Kanawha, which was an authorized insurance company in Louisiana currently doing business there; and that Kanawha was a wholly-owned subsidiary of KMG America Corporation, which Hu-mana acquired in 2007. Attached to the affidavit was a document entitled “GROUP DISABILITY INCOME INSURANCE CERTIFICATE NON-PARTICIPATING” and “CERTIFICATE OF GROUP DISABILITY INCOME INSURANCE FOR: S OF [sic],”- which purported to be the Kanawha group policy under which the plaintiff was insured. However, it provides no information as to the identity of the named insured.

|sOn September 30, 2015, the motion for new trial was argued. Humana sought to have the prior judgment vacated by challenging service. It argued that, as a foreign corporation, it should have been served by long-arm service since it did not have a designated agent for service in this state. Humana asserted that suit should have been brought against Kanawha instead, The trial court ordered that the record remain open for 30 days to allow Humana to submit corporate paperwork and to obtain information from the appropriate Louisiana state agency as to whether Humana had a certificate to do business as an insurer in this state.

On October 29, 2015, Humana fax filed to the clerk of court a supplemental memorandum and two exhibits, one of which was an affidavit from Ralph M. Wilson, its vice-president and associate general counsel. He stated that he had reviewed its corporate records and found no records indicating that Humana possessed a certificate for doing business as an insurance company in Louisiana or that it was otherwise registered to do business there. He further found no records indicating that Humana had designated the Louisiana Secretary of State as its agent for service of process. Attached to his affidavit as an exhibit was a copy of Humana’s 1989 restated certificate of incorporation from Delaware. The second exhibit attached to the supplemental memorandum was an affidavit from an assistant commissioner of licensing for the Louisiana Department of Insurance, which stated that he had confirmed that Humana had never been authorized or approved to act as an insurer in Louisiana. He further stated that the records indicated that Hu-mana is the ultimate controlling party of numerous insurers who are licensed in this state, including Kanawha.

|9On January 5, 2016, the trial court issued a written ruling. It noted that the motion for new trial appeared untimely under La. C.C.P. Art. 1974. However, in the interest of judicial economy, the court treated the motion as a request to annul the default judgment due to lack of proper service of process, which could be brought at any time under La. C.C.P. Art. 2002. The court rejected Humana’s contention that it was not a foreign insurance company doing business in Louisiana. While it was undisputed that the policy was issued by Kanawha, the court found Humana’s correspondence with the plaintiff “problematic.” The court pointed to the language in the January 3, 2014, letter from a specialist for “Humana Grievance and Appeal Department,” which assured the plaintiff of a “full and fair review”; informed him that he was covered by the Kanawha policy; and explained Kanawha’s status as a KMG America subsidiary and the acquisition of KMG America by Humana. The letter also directed the plaintiff to send additional documents to “Humana, Inc., Grievance and Appeal Department.” The court found that the plaintiff correctly served Humana through the Louisiana Secretary of State pursuant to La. R.S. 22:335. All costs were assessed to Huma-na.

In a footnote, the court found that the plaintiff produced competent evidence to support the confirmation of the default. It then stated that, despite its order to hold the record open for 30 days, Humana failed to file | many additional public record paperwork addressing its corporate purpose. On January 29, 2016, the trial judge sent a letter informing counsel that Huma-na’s fax filing from October 29, 2015, was not in the suit record at the time it ruled. Consequently, the court decided to revisit its decision in light of this filing.

On March 18, 2016, the trial court issued a supplemental written ruling in which it again denied Humana’s motion. It ruled that Humana was de facto doing business as an insurer in Louisiana through its wholly-owned subsidiaries. In support of this decision, it pointed to the affidavit from the Department of Insurance stating that Humana was the ultimate controlling party of such insurers licensed in Louisiana as Kanawha. The court also pointed to the correspondence to the plaintiff from Humana, in particular the portions indicating that Humana had authority to deny payment of benefits under the policy. The court further found that the correspondence from Humana to the plaintiff “makes it plain that entity is acting as the administrator of his disability claim under the policy issued by its wholly owned subsidiary Kanawha Insurance Company.” It further classified Humana, under La. R.S. 22:1902, as an unauthorized insurer transacting the business of insurance in this state. In particular, it found that Humana’s actions with respect to the plaintiffs claim constituted “transaction of any matter subsequent to the execution of such a contract and arising out of it” under La, R.S. 22:1902(5). The court concluded that service of process on Humana through the Louisiana Secretary of State was authorized and valid lnunder La. R.S. 22:1907(A). It again found the evidence presented at the confirmation of default hearing was sufficient.

Judgment denying Humana’s request to vacate the default judgment was signed on April 18,2016. Costs were assessed against Humana.

Humana filed a suspensive appeal.

UNAUTHORIZED INSURER PURSUANT TO LA. R.S. 22:1902

Humana argues that the trial court erred when it concluded that, under La. R.S. 22:1902, Humana was an unauthorized insurer transacting the business of insurance in this state. In particular, the trial court found that Humana’s actions with respect to the plaintiffs claim constituted “transaction of any matter subsequent to the execution of such a contract and arising out of it” under La. R.S. 22:1902(5).

In relevant part, La. R.S. 22:1902 states:

A. Any of the following acts in this state, effected by mail or otherwise, by an unauthorized insurer or by any person acting with actual or apparent authority of the insurer, on behalf of the insurer, is deemed to constitute the transaction of an insurance business in or from this state:
(5) The transaction of any matter subsequent to the execution of such a contract and arising out of it.

Humana contends that the insurance policy in this case was issued by Kanawha, a licensed insurer and a wholly-owned subsidiary of Humana. It concedes that it does not possess a license to transact a business of insurance in Louisiana, but maintains that it is only a parent holding company of | ^several insurers, including Kanawha, which are licensed here. Humana also claims that the use of its logo in connection with products and services provided by these insurer-subsidiaries does not constitute the transaction of an insurance business by Humana. It further asserts that there is no evidence that any entity other than Kanawha was responsible for evaluating and denying the plaintiffs claim. We disagree with these arguments and agree with the cogent reasoning of the trial court.

The evidence presented at the default confirmation unequivocally demonstrated that Humana was acting as an insurer in Louisiana by administering the plaintiffs claim. Throughout Humana’s correspondence with the plaintiff, Humana portrayed itself as the party deciding the merits of the plaintiffs claim. The two letters received by the plaintiff in January 2014 were signed by persons who explicitly identified themselves as specialists for “Humana Grievance and Appeal Department.” Both of these letters specifically directed the plaintiff to communicate with “Humana Inc., Grievance and Appeal Department.”

By its own actions and words, Humana repeatedly held itself out to the plaintiff as the party tasked with reviewing his claim and ultimately responsible for its denial. Under the facts of this case, we find that the trial court correctly held that Humana conducted itself as an unauthorized insurer transacting the business of insurance in this state, as set forth in La. R.S. 22:1902(5).

J^SERYICE OF PROCESS

Humana contends that the trial court erred when it held that service of process on Humana through the Louisiana Secretary of State was authorized and valid under La. R.S. 22:1907(A).

In pertinent part, La. R.S. 22:1907 provides:

A. The transacting of business in this state by a foreign or alien insurer without a certifícate of authority is equivalent to an appointment by such insurer of the Secretary of State and his successor or successors in office to be its true and lawful attorney, upon whom may be served all lawful process in any action, suit, or proceeding maintained by the commissioner of insurance or arising out of such policy or contract of insurance, and the transacting of business by such insurer is a signification of its agreement that any such service of process is of the same legal force and validity as personal service of process in this state upon it.

Humana contends that it is not an insurance company and not engaged in the business of insurance in Louisiana or any other state. Therefore, it contends that it is properly classified as a foreign corporation—not a foreign or unauthorized insurer—for purposes of service of process. Because it had no designated agent for service of process, Humana insists that it should have been served pursuant to La. C.C.P. Art. 1261 and La. R.S. 13:3204.

Because we have concluded that the trial court correctly held that Humana was acting as an unauthorized insurer transacting business in Louisiana under La R.S. 22:1902, we likewise uphold the trial court’s corresponding finding that service of process on the Secretary of State pursuant to La. R.S. 22:1907 was proper.

TIMELINESS OF MOTION FOR NEW TRIAL

Humana claims that the trial court erred in finding that its motion for new trial was untimely. However, despite its finding of untimeliness, the trial court elected to consider the motion for new trial as an action to annul a [ judgment under La. C.C.P. Art. 2002, which could be brought at any time. The trial court then diligently addressed and ruled upon all of the matters raised by Humana in its motion for new trial, i.e., Humana’s status as an insurer, the propriety of service of process, and the sufficiency of the evidence at the default confirmation. As a result, Hu-mana has failed to demonstrate that it suffered any prejudice as a result of the alleged error. Accordingly, we pretermit consideration of this issue as moot.

SUFFICIENCY OF EVIDENCE AT DEFAULT CONFIRMATION

Humana argues that the plaintiff failed to prove a prima facie case because he failed to introduce the Kanawha policy into evidence at the default confirmation hearing. Upon this basis, Humana seeks to have the default judgment rendered against it reversed.

In support of its position, Humana cites Johnston v. Broussard, 41,477 (La.App. 2 Cir. 9/20/06), 940 So.2d 79; Martin v. Sanders, 35,575 (La.App. 2 Cir. 1/23/02), 805 So.2d 1209; Sudds v. Protective Cas. Ins. Co., 554 So.2d 149 (La. App. 2d Cir. 1989); and Brown v. Trinity Ins. Co., 480 So.2d 919 (La. App. 2d Cir. 1985). Johnston was a legal malpractice case while the three other cases involved auto accidents. In each of these cases, a default judgment was confirmed without the plaintiff admitting into evidence a copy of the insurance policy affording coverage at the time of the tort. In each case, the court held that the written instrument was an essential element of the plaintiffs prima facie case and that no valid default judgment could be rendered without introducing it in evidence. The default judgments were vacated in all of these cases.

|1tiBased upon its unique facts, we distinguish the instant case from this line of jurisprudence. In the cited cases, the absence of the policies prevented a determination of whether any coverage was provided for the torts at issue. Here, Humana admitted in all of its correspondence that the plaintiff was covered under the policy at issue. Indeed, the plaintiff was actually receiving monthly payments until Humana chose to terminate his benefits. Further, Humana even quoted the relevant policy provisions in its January 27, 2014 letter and paraphrased them in the November 25, 2013 letter. We find that the factual pattern presented by this case, together with the many and extensive admissions made by Humana in its correspondence, serve to distinguish the instant case from the cited ones.

Our review of the record reveals no abuse of the trial court’s discretion in its holding that the plaintiff established a pri-ma facie case at the confirmation of the default.

ATTORNEY FEES

In his answer to the appeal, the plaintiff sought additional attorney fees for defending against the instant appeal. The general rule is an increase in attorney fees is usually allowed where a party was awarded attorney fees by the trial court and is forced to and successfully defends an appeal. Houston v. Blue Cross Blue Shield of La., 37,097 (La.App. 2 Cir. 4/9/03), 11fi843 So.2d 542, writ denied, 2003-1342 (La. 9/19/03), 853 So.2d 641. Stated another way, an increase in attorney fees for services rendered on appeal is appropriate when the defendant appeals and obtains no relief. Houston v. Blue Cross Blue Shield of La., supra. We find that an award of additional attorney fees of $1,000 is warranted.

CONCLUSION

The trial court judgment is affirmed. Additional attorney fees of $1,000 are awarded to the plaintiff, Michael Swinea.

Costs of this appeal are assessed to the appellant, Humana, Inc.

AFFIRMED; ADDITIONAL ATTORNEY FEES AWARDED.

      . The record established that Kanawha was a subsidiary of KMG America, which was acquired by Humana in 2007.

      . The only variance in the address was the zip code. In the first letter, it was ‘‘29721-3000” and ‘‘29720” in the two subsequent letters.

      . Humana did not complain about the amount of attorney fees below or on appeal.

      . It states:
      Every foreign or alien insurer shall appoint the Secretary of State to be its true and lawful attorney in this state upon whom, or some other person in his office during his absence he may designate, all lawful process in any action or proceeding against such insurer may be served, which shall constitute service on such insurer, Such appointment shall continue in force so long as any contract or other liability of such insurer in this state shall remain outstanding. Whenever such process shall be served upon the Secretary of State, he shall forthwith forward a copy of the process by registered or certified mail or by commercial courier as defined in R.S. 13:3204(D), when the person to be served is located outside of this state to the person designated for the purpose by the insurer.

      . The trial court made the following observation about finding that Humana’s actions made it a de facto foreign insurer doing business in this state and rendered the service made valid:
      To hold otherwise in this case would be to allow Humana, Inc. to transact the business of insurance in this State, independently and in concert with its wholly owned subsidiary, to take all actions of an insurer, and to reap all benefits of an insurer, without accepting the conditions placed upon such activity by our law. Sanctioning this result would be a circumvention of the public policies embodied in our Insurance Code and related statutes regulating such activities for the welfare of the general public.

      . Based upon Humana’s blatant and independent actions, we easily distinguish this case from Keaty v. RPM Int'l, Inc., 51,019 (La.App. 2 Cir. 10/21/16), 208 So.3d 507, 2016 WL 6134912, wherein this court found insufficient evidence to support a default judgment against a parent company for the acts of its subsidiary.

      . In Brown, there was a letter from the insurer asking for a wage loss verification and another referring to a settlement draft; in Sudds, there was a letter discussing a settlement offer; in Martin, there was a police report reciting that the defendant driver had an expired policy; and in Johnston, there were letters and a claims-made policy that did not cover the period when the claim was made which, taken together, tended to show that there was no coverage. Factually, none of these cases comes even remotely close to the admissions contained in the letters in the instant case.
      Furthermore, because the insurer itself quoted the specific provisions of the policy which it felt were dispositive in rejecting the claim in its correspondence to the plaintiff, we distinguish the instant case from Arias v. Stolthaven New Orleans, L.L.C., 2008-1111 (La. 5/5/09), 9 So.3d 815, In that case, the supreme court vacated a default confirmation when the only documents admitted into evidence to show the insurance coverage failed to provide any information on the terms and conditions of the policy.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Cornelius YOUNG, Appellant
    No. 51,175-KA, No. 51,176-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 15, 2017

      J. SCHUYLER MARVIN, District Attorney, HUGO A. HOLLAND, JR., JOHN M. LAWRENCE, Assistant District Attorneys, Counsel for Appellee
    LOUISIANA APPELLATE PROJECT, By: Annette F. Roach, Counsel for Appellant

      Before BROWN, WILLIAMS & PITMAN, JJ.
   PITMAN, J.

| j This is an appeal after a remand wherein this court ordered the trial court to conduct an evidentiary hearing on the issue of an alleged breach of a plea agreement by the state. After the hearing, the trial court held that it was the Defendant, Cornelius Young, who had breached his plea agreement. Therefore, it held that the imposition of the original sentences consecutively, which was not in conformity with the plea agreement, was proper. Defendant now appeals. For the following reasons, the sentences are vacated and the matter is remanded with instructions.

FACTS

The original opinion in this case and in which the remand was ordered is State v. Young, 50,072 (La.App. 2 Cir. 8/12/15), 174 So.3d 719 (“Young I”).

On January 6, 2014, Defendant pled guilty to two felony charges (unauthorized entry of a place of business and theft) and one misdemeanor charge (simple battery) pursuant to a plea agreement. He agreed to enter guilty pleas on the three charges and to testify in an unrelated criminal case, State v. Warmack, an aggravated incest and molestation of a juvenile case (“the Warmack trial”), in exchange for concurrent sentences, a presentence investigation (“PSI”) bond reduction and no multiple offender bill. After accepting the guilty pleas, the trial court set Defendant’s sentencing date for June 30, 2014, nearly seven months from the date of the guilty plea, so that he could testify in the Warmack trial scheduled for March 10, 2014. His | pPSI bond was to be reduced to $7,500 as part of the plea agreement; however, because of confusion and a lack of communication between the district attorney (“DA”) and Bayou Dorcheat Correctional Center (“BDCC”), there was a very lengthy delay in the bond reduction paperwork. The Webster Parish Sheriffs Office received notice of the bond reduction on March 7, 2014.

Defendant remained incarcerated throughout the months leading up to the Warmack trial. While the case was being prepared for trial, Defendant wrote letters and made comments to the DA’s office that caused doubt to be cast upon his reliability as a witness. His letters indicated that he feared for his safety once he became known as a snitch among the other inmates and also implied that, because his bond had not been reduced, he would not testify at the Warmack trial unless the state complied with the agreement.

Defendant wrote a letter to the DA postmarked May 21, 2014, which stated that he was “very upset” about not receiving the bond reduction. For that reason, the DA chose not to call him at the Warmack trial even though Defendant was dressed and transported to the courthouse ready to testify on the day he was told to be there. Although he waited for two hours to be called, he was told that it was his “lucky day” and he was not going to testify.

At his sentencing hearing on June 30, 2014, the trial court reviewed Defendant’s PSI and found that he had been convicted of 13 felony offenses, including the two felony offenses for which he was before the court. After the PSI review, it stated as follows:

I will state that at the time you pled guilty the agreement was there would be no multiple offender bill and that if you were—if you testified in the case of State versus Leland Warmack the | ¡¡State was recommending that your sentences would run concurrently with each other. However, you—that case was tried two weeks ago... And you were not—you did not testify. Now whether you were called or refused to testify or you were available and they chose not to call you, I don’t know. I wasn’t privy to that conversation, but all I do know is you did not testify.

It sentenced Defendant to six years at hard labor for unauthorized entry and five years at hard labor for a middle-grade theft, both maximum sentences, and ordered that the sentences be served consecutively. Defendant filed a timely motion to reconsider sentence and argued that the sentences were not in compliance with the plea bargain agreement and were excessive. The trial court denied the motion to reconsider sentence and Defendant appealed.

In Young /, this court remanded with instructions to the trial court to hold an evidentiary hearing to determine whether Defendant breached the plea agreement by refusing to testify at the Warmack trial. This court stated, “If the evidence is not sufficient to show that the defendant was unwilling to fulfill his obligation under the plea agreement, the plea agreement must be enforced, or Young must be allowed to withdraw his guilty pleas.”

On remand, the sole issue to be determined was whether there was a breach of the plea agreement between Defendant and the state such that the subsequent imposition of consecutive, rather than concurrent, sentences was proper.

A contradictory hearing was held on November 9, 2015. The state’s only witness was Angela Hall, an employee of the DA’s office who coordinated Defendant’s testimony for the Warmack trial. Ms. Hall confirmed that there was a communication failure between the DA’s office and the BDCC where Defendant was housed, which delayed, and ultimately precluded, his bonding out before sentencing. According to Ms. Hall, ^Defendant had related to her that, by the time the bond reduction was sent to the jail, his family had spent the “tax money” that was intended to bond him out.

As explained in Young I, the tenor of Defendant’s letters to the clerk of court and DA’s office reflected his belief that the officials wanted him to remain incarcerated until the Warmack trial in order to ensure his presence to testify, while he was relying on the state’s agreement to reduce his bond so that he could spend time with his family in Arkansas prior to sentencing, and that he was afraid for his safety since he would be known as a snitch. Ms. Hall corroborated this, testifying that Defendant was moved several times, primarily due to safety concerns. She testified that “they” were trying to help him pending his sentencing and the Warmack trial.

She testified that, on one occasion, Defendant was brought to the DA’s office for an interview wherein she informed him that his bond had been reduced to $7,500. When he requested to be released on his own recognizance, she informed him the trial judge would probably not agree to that since he had an extensive criminal record. She also testified that, at the time, Defendant had two holds on him from the State of Arkansas. She stated that she allowed Defendant 15 minutes to make phone calls in order to secure funds for .the bond because he advised her that he would not be able to make the calls from the jail. According to Ms. Hall, Defendant told her that his family had spent the money that was supposed to be for his bond. During this meeting, Defendant again expressed his fear for his safety in jail.

During her testimony, Ms, Hall identified handwritten notes of DA Schuyler Marvin in the Warmaek case, referencing Defendant, which stated, “don’t call this guy.” Ms. Hall also identified the May 21, 2014 letter |fias being from Defendant. She testified that the margin notation on the letter was what had led the state to question Defendant’s veracity and whether he would testify at all, even if called. This was the only letter introduced by the state at the hearing. The body of the letter is similar in substance to the other letters authored by Defendant and examined by this court in Young I, in that he complains that the state breached its agreement to let him bond out and expresses concerns for his safety. In the letter, Defendant implies that he understands the importance of his testimony and states that he had an understanding that he would be protected since he was going to testify; however, the point of the letter was to let the DA’s office know that the state was not complying with the agreement since he had been unable to get his bond lowered. The margin notation, relied upon by the state and the trial court for denying Defendant specific performance of the plea agreement, is somewhat illegible; however, Ms. Hall read the notation as follows during her testimony:

P.s. (sic) And I’m not going to testify either ... after all this drama against my freedom never be any chance to see my family or kids or have a chance to see the kids if I have sit in here until the June 16th for trial. I’ll still be—still be a witness. I don’t know what the judge may do. I only be helping your office even after I—even after I was done. I can’t help you if you help me—-ya’ll— something.

Ms. Hall confirmed that DA Marvin’s decision not to call Defendant as a witness was made after his receipt of Defendant’s letter and was based on this margin notation. She also testified that she was aware of no further communication between the DA’s office and Defendant regarding his willingness to testify at the Warmaek trial or to inquire about the meaning of the margin notation on the letter.

| ^Defendant testified that he was War-mack’s cellmate and that Warmaek had told him, “what happened between him [Warmaek] and his daughter.” He described the plea agreement reached in exchange for his testimony against Warmaek and stated that he continually relayed to Ms. Hall that he was receiving threats for being a snitch, after which she would move him. He testified that Ms. Hall allowed him to call his family about bonding out, but he denied ever telling her that his family had spent the “tax money” and that is why he could not make bond. According to him, once the communication issue regarding the bond was corrected and the paperwork was sent to the jail, he was satisfied that the agreement was in place and he intended to testify as agreed. He further testified that his family continued to try to raise the money for his bond, which they were ultimately unable to do. However, because of the “little girl,” the rape Victim, he was prepared to testify.

The state subpoenaed him to appear at the Warmaek trial. Defendant explained:

I voluntarily, I got dressed, they brought me down here. When they brought me down here, Mr. Schuyler Marvin and them had me to go to their office and then they told me that they weren’t going to need me to testify, today was my lucky day. And then they sent me back.
I was willing to testify. I was getting ready to come into the courtroom and they told me to hold on. ... they took me to the fourth floor. I sat there for about two hours. I went back. I called Ms. Angela Hall.

Defendant testified about asking Ms. Hall why he did not testify at the War-mack trial. He stated that Ms. Hall explained to him:

|7I’m going to tell you and be honest with you Mr. Young, 'the reason they didn’t call you for witness because due to you not being able to bond, they feel like that I was going to, you know, be mad and hurt them as a witness because they held me in jail all this time and didn’t allow me to bond.

He testified that he was present at the Warmack trial and was willing to testify and uphold his end of the plea agreement. He repeatedly stated that he was concerned for his safety; he advised the court: “But I never, Your Honor, I never—it was never me saying that I’m not going to testify. I feel like that if I’ve got to hold my part of the bargain, I feel like they should have too.”

On cross-examination, Defendant conceded that he was moved from facility to facility due to safety concerns. He admitted that Ms. Hall allowed him to call his family in an attempt to make bond and stated that he wrote the notation that he would not testify, but he urged that he wrote that “due to my bond.” The trial judge questioned him about the meaning of the notation:

Trial judge: Are you saying that somehow there’s a misunderstanding that they should not have, they being the district attorney’s office ... should not have taken from your letter where you say that, ’I’m not going to testify,” that you weren’t going to testify?
Young: Yes, sir. I—I told Ms, Angela Hall, I told her I was going to testify. I never told her I wasn’t.

Defendant then admitted that what he said in the letter was different than what he advised Ms. Hall later and in person.

The trial court took the matter under advisement and entered a written ruling on November 25, 2015, finding that Defendant breached the plea agreement by writing the notation; and, thus, the consecutive sentences Rwould remain in place. In so holding, it noted this court’s concern expressed in Young I that there was no evidence that he had “refused to testify” at the Warmack trial or that “the state had good grounds to believe” that he would not have testified. It then concluded: '

Clearly the letter from the Defendant declaring “I’m not going to testify” gavé the district attorney’s office sufficient confirmation that the defendant meant exactly what he wrote. Any assertions the Defendant was prepared to testify at the trial are contradicted by his own writings. As such, with Defendant’s declaration that he was not going to testify, the terms of the agreement for Defendant’s sentences to.run concurrent were no longer enforceable.

This appeal ensued.

DISCUSSION

Defendant complains that the trial court erred in concluding he was unwilling to fulfill his obligation under the plea agreement to testify truthfully at the War-mack trial. Thus, he submits that the imposition of consecutive sentences was a breach of the binding plea agreement. His argument relies heavily on this court’s opinion in Young I. He also asserts that the trial court took the margin notation out of context and that it did not consider the fact that the state subpoenaed him to testify and that he was present and willing to testify on the day of the Warmack trial. He urges that it was error to consider only one phrase in one letter in light of all of the other circumstances and his actions, which evidenced his intent to testify and honor the plea agreement. He states that his guilty pleas rested heavily on the agreement of the state and that he is entitled to specific performance of the agreement.

The state maintains that Defendant “could not testify as a truthful witness” in the Warmack trial because his credibility was called into | flquestion by his statement in the letter. The DA was justified in not calling him as a witness based on his written refusal to testify. The state asserts that his plea agreement was based on his agreement to testify truthfully, as a credible witness, at the Warmack trial, which, by his own statement, he had compromised.

A district court’s findings as to whether a defendant has breached a plea agreement will be overturned only if clearly erroneous. State v. Adams, 04-77 (La. App. 3 Cir. 9/29/04), 884 So.2d 694, writ denied, 04-2709 (La. 2/25/05), 894 So.2d 1131, and writ denied, 04-2880 (La. 2/25/05), 894 So.2d 1132, citing United States v. Ballis, 28 F.3d 1399 (5th Cir. 1994); United States v. Gerant, 995 F.2d 505, 508 (4th Cir. 1993); United States v. Tilley, 964 F.2d 66 (1st Cir. 1992); United States v. Wood, 780 F.2d 929 (11th Cir.), cert. denied, 479 U.S. 824, 107 S.Ct. 97, 93 L.Ed.2d 48 (1986).

This court, in Young I, stated the following general precepts concerning the validity of plea agreements:

In determining the validity of plea agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant’s constitutional right to fairness may be broader than his or her rights under contract law. State v. Givens, 1999-3518 (La. 1/17/01), 776 So.2d 443. The party demanding performance of a contract has the burden of proving its existence. State v. Louis, 94-0761, p. 7 (La. 11/30/94), 645 So.2d 1144 at 1149. In the context of plea bargains, a defendant may demand specific performance of the state’s promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right. Id. at 1149-50; see also, State v. Tanner, 425 So.2d 760, 763 (La. 1983).
Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art. 1983. A party has an implied obligation to make a good faith effort to fulfill the conditions of a contract. Bloom’s Inc. v. Performance Fuels, L.L.C., 44,259 (La.App. 2 Cir. 7/1/09), 16 So.3d 476, unit denied, 2009-2003 (La. 11/20/09), 25 So.3d 800. When there are reciprocal obligations, the obli-gor of one may not be put in default unless the obligor of the other has performed or is ready to perform his own obligation. La. C.C. art. 1993. Also, a party to a commutative contract may refuse to perform his obligation if the other has failed to perform. La. C.C. art. 2022.

A guilty plea is constitutionally infirm when the terms of the plea agreement are not honored. State v. Honeycutt, 41,601 (La.App. 2 Cir. 2/28/07), 953 So.2d 914; State v. Robinson, 33,921 La.App. 2 Cir. 11/1/00, 770 So.2d 868, citing State v. Dixon, 449 So.2d 463 (La. 1984). When a plea bargain is breached, the defendant has the options of specific performance or to withdraw the guilty plea. State v. Bouwell, 45,635 (La.App. 2 Cir. 9/22/10), 48 So.3d 335; State v. Davis, 41,430 (La.App. 2 Cir. 11/1/06), 942 So.2d 652; State v. Byrnside, 34,948 La.App. 2 Cir. 8/22/01, 795 So.2d 435.

A contractual plea agreement was formed by the parties herein. Defendant agreed to plead guilty and testify against Warmack and the state agreed to a reduction of his bond and that his sentences would run concurrently. All parties agree that, though delayed, the bond was eventually reduced to $7,500. He was incarcerate ed the entire time the DA was preparing for the Warmack trial. During that time period, Defendant was threatened as a snitch and bond was not reduced in a timely fashion. Although the bond was eventually reduced, Defendant’s family was unable to provide the funds for even the reduced bond.

| uFor whatever reason, whether it was that the state intended to hold Defendant in custody until the Warmack trial, or that the state feared releasing him since he had two holds on him from the State of Arkansas, or simply the confusion related to the failure of communication between the state and BDCC, it cannot be said the state complied with the reduction of bond in a timely manner, and Defendant did not think that the state was upholding its part of the bargain.

These circumstances caused Defendant to write the May 21, 2014 letter to the DA, which specifically stated, “I am not going to testify.” This statement caused the DA to conclude that Defendant would not be a forthcoming, truthful and credible witness and chose not to call him at the Warmack trial, despite the fact that Defendant was transported to the courthouse, dressed and ready to testify.

The result of these circumstances is that there is enough fault to be divided equally between the state and this Defendant in breaching the plea agreement. The War-mack trial has concluded and the need for Defendant’s testimony has been negated. His testimony was his “bargaining chip” and the only reason the state offered him the plea agreement. He pled guilty to the two felonies with the understanding that his sentences would run concurrently after he testified. Since the opportunity for Defendant to testify has passed, this issue can only be resolved by either the prosecutor agreeing to the implementation of concurrent sentences of the original plea agreement or by allowing Defendant to withdraw his guilty plea.

| ^CONCLUSION

For the foregoing reasons, we vacate the trial court’s ruling that Defendant’s sentences shall run consecutively and remand with instructions that the prosecutor either accede to the original sentencing terms of the plea agreement or allow Defendant to withdraw his guilty plea. This decision shall be memorialized in open court in the presence of Defendant and his counsel.

If the prosecutor refuses to agree with the implementation of the concurrent sentences of the original plea agreement, Defendant shall then be allowed 30 days to withdraw his plea of guilty. Should Defendant refuse to withdraw his guilty plea during the 30-day period, the trial court shall resentence him to consecutive sentences.

JUDGMENT REVERSED AND REMANDED WITH INSTRUCTIONS.

BROWN, C.J., dissents.

      . The Warmack trial apparently did not take place until June 2014. At Defendant’s sentencing on June 30, 2014, the trial court noted that the Warmack trial had taken place “two weeks ago” and that Defendant had not testified.

      . Compare—in cases involving a prosecutor’s agreement not to prosecute, constitutional principles dictate that, when the prosecutor in a criminal case himself causes the non-occurrence of the condition which would give rise to his obligation not to prosecute, the obligation becomes absolute. See United States v. San Pedro, 781 F.Supp. 761 (S.D. Fla. 1991); Jay M. Zitter, Annotation, Enforceability of Agreement By Law Enforcement Officials Not To Prosecute If Accused Would Help In Criminal Investigation Or Would Become Witness Against Others, 32 A.L.R.4th 990 (1984).


author: LILJEBERG, J.

text:
    Herbert L. LACASSAGNE and Cathy S. Lacassagne v. OSTER DEVELOPMENT, INC. and Donald C. Oster, Jr.
    NO. 16-CA-596
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, HERBERT L. LACASSAGNE AND CATHY S. LACASSAGNE, Anthony L. Glorioso
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   LILJEBERG, J.

11Plaintiffs/Appellants, Herbert L. La-cassagne and Cathy S. Laeassagne, appeal the trial court’s August 8, 2016 judgment, which granted a Motion for Nullity of Judgment and Dismissal filed by defendants/appellees, Oster Development, Inc. and Donald C. Oster, Jr. The trial court found null a September 1, 2010 judgment, which confirmed a default judgment and awarded damages in favor of the plaintiffs, because the matter was abandoned at the time the trial court entered the judgment. The trial court vacated the judgment and dismissed plaintiffs’ claims without prejudice. For the reasons stated more fully below, we affirm the trial court’s August 8, 2016 judgment.

FACTS AND PROCEDURAL HISTORY

On July 10, 2002, plaintiffs filed a lawsuit against defendants pursuant to La. R.S. 9:3141, et. seq., the New Home Warranty Act, alleging structural defects existed in the condominium they purchased from defendants. There was no activity in the record until plaintiffs submitted a motion for preliminary default. alleging that defendants received personal service of the petition on February 7, 2003, and defendants failed to file an answer in response. On July 12, 2005, the trial court granted a preliminary default. The next filing in the record is the September 1, 2010 judgment, which confirmed the preliminary default entered on July 12, 2005, and awarded plaintiffs damages against defendants. On September 3, 2010, the Clerk of Court mailed notices of signing of the September 1, 2010 judgment to defendants.

No further activity appears in the record until March 24,2016, when plaintiffs filed a Motion and Order to Examine Judgment Debtor. In response, defendants filed a Motion for New Trial or Alternatively, Nullity of Judgment on May 4, 2016, alleging defendants were not served with the petition and did not |Preceive notice of the signing of September 1, 2010 Judgment. Also on May 4, 2016, defendants filed an Ex Parte Motion and Order for Nullity of Judgment and Dismissal with Prejudice Pursuant to La. C.C.P. art. 561 or Alternatively, Motion for New Trial. Defendants argued plaintiffs failed to take any steps in furtherance of the lawsuit between July 11, 2005 and September 1, 2010, and the September 1, 2010 judgment was an absolute nullity because plaintiffs’ lawsuit was abandoned when the trial court entered the judgment.

The trial court set both motions for hearing on July 28, 2016, and took the matter under submission following the hearing. On August 8, 2016, the trial court entered judgment granting the motion for nullity and dismissal based on abandonment, stating “[t]he Court can find no authority to support an exception to application of La. C.C.P. art. 561 on these facts.” The trial court ruled the September 1, 2010 judgment was null, vacated the judgment and dismissed plaintiffs’ claims without prejudice. On August 19, 2016, plaintiffs filed a motion for devolutive appeal, which the trial court granted on August 22, 2016.

LAW AND DISCUSSION

On appeal, plaintiffs argue the trial court erred by finding they abandoned their lawsuit. Plaintiffs argue the purpose of abandonment is to prevent the practice of filing suit to interrupt prescription and then allowing the lawsuit to “hang perpetually over the head of the defendant unless he himself should force the issue.” Plaintiffs argue that since defendants claim they had no knowledge of this lawsuit, plaintiffs’ delay in proceeding to confirm the default had no detrimental effect on defendants. Plaintiffs further argue that by confirming the default judgment, they exhibited their intent not to abandon their lawsuit.

La. C.C.P. art. 2002 states that a final judgment shall be annulled if it is rendered against a defendant “against whom a valid judgment by default has not been taken.” Because defendants alleged that the default judgment rendered 1 ¡¡against them was invalid due to abandonment, the trial court properly considered their motion for nullity and dismissal on these grounds.

The controlling statutory provision in this case is La. C.C.P. art. 561, which provides in part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, ...
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.

In Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779, 784, the Louisiana Supreme Court held that Article 561 imposes three requirements to avoid abandonment: (1) a party takes a step in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit; and (3) the step must be taken within three years of the last step taken by either party. A “step” in the prosecution or defense of an action is a formal action by a party before the court intended to hasten the matter to judgment. Id.; Lewis v. Digital Cable & Communs, North, 15-345 (La.App. 5 Cir. 11/19/15), 179 So.3d 840, 844.

Abandonment is self-executing; it occurs automatically upon the passing of three years without a step being taken by either party, and is effective without court order. Clark, 785 So.2d at 789; Lewis v. Jones, 16-48 (La.App. 5 Cir. 5/26/16), 193 So.3d 546, 549. Once abandonment occurs, action by the plaintiff cannot breathe new life into the suit. Id.

On appeal, plaintiffs do not claim they took a step within the three-year abandonment period. Rather, plaintiffs argue this Court must consider the | .following policy considerations underlying abandonment which the Louisiana Supreme Court espoused in Clark, supra:

In sum, abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned.
* * *
Abandonment is a device that the Legislature adopted “‘to put an end to the then prevailing practice of filing suit to interrupt prescription, and then letting the suit hang perpetually over the head of the defendant unless he himself should force the issue.’” Sanders v. Luke, 92 So.2d 156 (La. App. 1st Cir. 1957).
* * *
Abandonment functions to relieve courts and parties of lingering claims by giving effect to the logical inference that a legislatively designated extended period of litigation inactivity establishes the intent to abandon such claims. When the parties take no steps in the prosecution or defense of their claims during that legislatively ordained period, “the logical inference is that the party intends to abandon the claim and the law gives effect to this inference.” Young v. Laborde, 576 So.2d 551, 552 (La. App. 4th Cir. 1991). The presumption of abandonment that arises under Article 561 as a result of three years of litigation inactivity, however, is not conclusive. As noted, two jurisprudential, prescription based exceptions are recognized. Moreover, given that dismissal is the harshest of remedies, the general rule is that “any reasonable doubt [about abandonment] should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment.” Id.
Abandonment is not a punitive concept; rather, it a balancing concept.

Id. at 786-87.

Plaintiffs argue that based on defendants’ claims that they did not receive service of the petition or notice of the signing of the September 1, 2010 judgment, defendants were not aware this suit was “hanging over their heads” and the delay had no detrimental effect. However, defendants’ lack of knowledge of the lawsuit is not an exception to the requirement that a party must take a step within the three-year period to avoid abandonment.

Plaintiffs further argue that by confirming the preliminary default, they exhibited their intent not to abandon this lawsuit. This argument also fails because | (¡plaintiffs’ intent to take a step in the prosecution of their claim without actually taking a timely step is insufficient to interrupt the abandonment period. See Clark v. City of Hammond, 00-673 (La. App. 1 Cir. 8/10/00), 767 So.2d 882, 884.

Though plaintiffs do not argue on appeal that these exceptions apply, we further note that two jurisprudential exceptions to the abandonment rule exist: (1) a plaintiff-oriented exception that applies when failure to prosecute is caused by circumstances beyond the plaintiffs control; and (2) a defense-oriented exception that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Clark, 785 So.2d at 784-85; Lewis, 193 So.3d at 551.

We agree with the trial court’s finding that the facts set forth in the record do not support any exceptions to the abandonment rule. Plaintiffs failed to present evidence to support a finding that either their failure to prosecute was caused by circumstances beyond their control or that defendants took any actions inconsistent with an intent to treat this case as abandoned.

DECREE

Accordingly, we affirm the trial court’s judgment which granted defendants’ motion for nullity and dismissal, vacated the September 1, 2010 judgment and dismissed plaintiffs’ claims without prejudice.

AFFIRMED

      . Although plaintiffs allege that defendants received personal service on February 7, 2003, the service return is not in the appellate record.


author: CHAISSON, J.

text:
    Terry COLLINS and Lainie Collins v. The HOME DEPOT, U.S.A. INC.
    NO. 16-CA-516
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, TERRY COLLINS AND LAINIE COLLINS, Hilary G. Gaudin, Elizabeth M. Gaudin
    COUNSEL FOR DEFENDANT/AP-PELLEE, THE HOME DEPOT, U.S.A. INC., Stephen N. Elliott, Kenneth J. De-roche, Jr.
    Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst
   CHAISSON, J.

|,Terry and Lainie Collins appeal from a trial court ruling that granted summary judgment in favor of ISS Facility Services, Inc. (“ISS Facility”). For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This case arises from an accident that occurred on February 14, 2012, at a Home Depot store located in Gretna, Louisiana. In their petition for damages, Mr. and Mrs. Collins allege that while Mr. Collins was shopping in the store, he suddenly and without warning slipped and fell on a clear liquid substance that had been allowed to accumulate on the sales floor area. Mr. and Mrs. Collins filed suit against Home Depot on July 25, 2012. Subsequently, on June 25, 2014, they amended their petition to add ISS Facility as a defendant, alleging that it had a floor maintenance contract with Home Depot and was present in the store on the day of Mr. Collins’s fall and was therefore responsible for their damages. On July 25, 2014, Home Depot filed a motion for summary judgment on the basis that the plaintiffs could not meet their burden of proof to show that Home Depot either created or had actual or constructive notice of the condition which caused their damages. The trial court granted summary judgment in favor of Home Depot and dismissed plaintiffs’ suit against it with prejudice. That decision was affirmed by this Court on appeal.

After Home Depot was dismissed from the litigation with prejudice, ISS Facility filed a motion for summary judgment on the basis that the plaintiffs’ filing of suit against it was untimely, and their claims had therefore prescribed. The trial court, finding that plaintiffs’ claims had prescribed, rendered judgment in favor of ISS Facility dismissing the claims against it with prejudice. This appeal followed.

|2On appeal, plaintiffs contend that all of the necessary criteria have been met in order that the filing of suit against ISS Facility “relates back” to the date on which suit was initially filed against Home Depot, and that their claims have therefore not prescribed and it was error for the trial court to grant summary judgment in favor of ISS Facility.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Bell v. Parry, 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. An issue is genuine if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Anny v. Babin, 12-164 (La.App. 5 Cir. 7/31/12), 99 So.3d 702, 705, writ denied, 12-1972 (La. 12/14/12), 104 So.3d 441.

Under La. C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The nonmoving party must then produce factual support to | Sestablish that he will be able to satisfy his evidentiary burden of proof at trial. If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. art. 966(C)(2); Bobino v. Jefferson Transit, 12-468 (La.App. 5 Cir. 2/21/13), 110 So.3d 1123, 1125.

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La.App. 6 Cir. 11/29/11), 78 So.3d 849, 852.

In this case, the issue raised in ISS Facility’s motion for summary judgment is one of prescription. Delictual actions are subject to a liberative prescriptive period of one year, which commences to run from the date the injury is sustained. La. C.C. art. 3492. The burden of proof normally lies with the party asserting prescription; however, where the petition shows on its face that it has prescribed, the burden shifts to the plaintiff to prove that the prescriptive period has been interrupted or suspended. Monson v. Travelers Prop. & Cas. Ins. Co., 09-267 (La.App. 5 Cir. 12/8/09), 30 So.3d 66, 69. Plaintiffs amended their suit to add ISS Facility as a defendant on June 25, 2014, for injuries that they allege occurred on February 14, 2012, more than a year prior to adding ISS Facility as a defendant. Therefore, since their petition against ISS Facility is prescribed on its face, the burden shifted to the plaintiffs to establish that prescription had been interrupted or suspended.

Although plaintiffs timely filed suit against Home Depot, and interruption of prescription by suit against one solidary obligor or joint tortfeasor is effective as to all, that principle is not applicable where the defendant against whom suit was timely filed is ultimately found not liable to the plaintiff, since no joint or solidary | obligation would exist. Monson, 30 So.3d at 69. Unable to rely upon any alleged solidary obligation between Home Depot and ISS Facility, plaintiffs instead argue that the filing of suit against ISS Facility “relates back” to the date on which suit was initially filed against Home Depot.

La. C.C.P. art. 1153 provides that “[w]hen the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.” In Ray v. Alexandria Mall, 434 So.2d 1083 (La. 1983), the Louisiana Supreme Court set forth the criteria that must be met in order for an amendment that changes the identity of the party sued to relate back to the date of filing of the original petition, namely:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; and
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

In addressing the fourth criteria of the test established in Ray, plaintiffs, citing the case of Findley v. City of Baton Rouge, 570 So.2d 1168 (La. 1990), argue that there is an “identity of interests” between Home Depot and ISS Facility, such that ISS Facility is not a wholly new or unrelated defendant. Specifically, plaintiffs argue that there is an indemnification agreement wherein ISS Facility agreed to indemnify Home Depot for any liability that arose against Home Depot for neglect of its responsibility to maintain the condition of the aisles of the store, |fithat both Home Depot and ISS Facility used the same adjusting agency to adjust the plaintiffs’ claims against them, and that both entities employed the same attorneys to defend them against the plaintiffs’ claims. We do not find plaintiffs’ arguments regarding an identity of interests between Home Depot and ISS Facility to be persuasive.

In Findley, the Court, in addressing the issue of whether an amended petition that named the Recreation and Park Commission for the Parish of East Baton Rouge (“BREC”) as a defendant, related back for the purposes of prescription under La. C.C.P. art. 1153 to the date of filing of the original petition against the City of Baton Rouge, determined that “[sjufficieney of the identity of interests depends upon the closeness of the relationship found between the parties in their business operations and other activities ...” Findley, 570 So.2d at 1171. The Court noted that other courts had found such identity of interests to exist in situations involving a parent corporation and a wholly owned subsidiary, and in situations involving corporations with interlocking officers or directors. Id. (citations omitted). The Court, noting that the City’s governing body and its chief executive appoint seven of the nine members of BREC, that the City council makes appropriations for BREC, that BREC utilizes the services of various City agencies for its operating functions, that BREC is part of and subject to the personnel system for City employees, and that the City planning commission has the power to approve or disapprove each item of BREC’s capital budget and must also approve BREC’s issuance of bonds and certificates of indebtedness, recognized that such elements of control were similar to that existing between corporations with interlocking ownership, and likened the relationship between BREC and the City to that between a parent corporation and a subsidiary which is a separate legal entity. Findley, 570 So.2d at 1171-72. The Court therefore found that there was a sufficient identity of interests between the two defendants such Inthat the amended petition related back to the date of filing of the original petition. We find the facts of Findley are distinguishable from the facts before us in this case.

In the case before us, we find that plaintiffs have not produced any evidence that establishes an element of control that would allow us to analogize the relationship between Home Depot and ISS Facility to that of corporations with interlocking ownership, or to that of a parent corporation and its subsidiary. To the contrary, Home Depot and ISS Facility appear to be legally separate and distinct corporate entities, with their relationship being that of principal and independent contractor. Plaintiffs have produced no evidence that suggests interlocking ownership, officers, directors or employees of the two corporations. Nor have plaintiffs produced any evidence that establishes a financial interrelatedness or dependence between the two corporations. The mere fact that there is an indemnification agreement between the two corporations, and that they employ the services of the same adjusting agency and attorneys, is not sufficient to establish an element of control or closeness of relationship that would allow a determination that there is an identity of interests between the two. As the Court noted in Findley, the rule that allows relation back of an amended petition under certain circumstances was not intended to apply when the amendment sought to name a new and unrelated defendant. Findley, 570 So.2d at 1170.

Furthermore, even if we were to give plaintiffs the benefit of the doubt that, because of the indemnification agreement between Home Depot and ISS Facility, and the use of a single adjusting agency and the same attorneys, they were confronted with a “legalistic smoke screen” or a “maze of closely related corporate entities” that led to their inadvertent error of naming the wrong defendant, any such confusion of the plaintiffs was clearly removed once Home Depot answered plaintiffs’ discovery on April 3, 2018. In those answers, Home Depot indicated |7that it had a contract with ISS Facility to perform maintenance on the floor of the premises and that ISS Facility was providing cleaning services at the time of Mr. Collins’s accident, clearly establishing that the relationship between Home Depot and ISS Facility was that of principal and independent contractor. Therefore, even if prescription had previously been interrupted, there can be no justification for prescription not to have begun to run anew on April 3, 2013. As such, plaintiffs’ claims would have prescribed no later than April 3, 2014. Plaintiffs did not amend their petition to name ISS Facility as an additional defendant until more than a year later, on June 25, 2014.

CONCLUSION

Upon our de novo review, we find that the filing of the amended petition against ISS Facility does not relate back to the filing of the original petition against Home Depot. Therefore, plaintiffs’ claims against ISS Facility have clearly prescribed, and ISS Facility is entitled to summary judgment as a matter of law, dismissing the plaintiffs’ suit with prejudice.

AFFIRMED

      . Collins v. Home Depot, U.S.A., Inc., 15-199 (La.App. 5 Cir. 12/9/15), 182 So.3d 324.


author: GRAVOIS, J.

text:
    Maria Sol SARASINO, Maria Jose Sarasino and Norberto Sarasino, Individually and as the Administrator of the Estate of Maria Ibanez Sarasino and as Natural Tutor of the Minors, Jennifer Sarasino and Yazmin Sarasino v. STATE of Louisiana, THROUGH the DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Harry Lee, Individually and in His Capacity as Chief of Police And/or Sheriff of Jefferson Parish, Parish of Jefferson, Nick Congemi, Individually and as His Capacity as Chief of Police of Kenner Police Department and City of Kenner
    NO. 16-CA-408
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, MARIA SOL SARASINO, ET AL, Joseph Nelson Mayer, IV
    COUNSEL FOR DEFENDANT/AP-PELLEE, SHERIFF NEWELL NORMAN, Daniel R. Martiny, James B. Mulla-iy
    Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg
   GRAVOIS, J.

_JjTn this wrongful death suit, plaintiffs, various family members of the late Maria Ibanez Sarasino (“Mrs. Sarasino”), appeal the trial court’s grant of summary judgment in favor of defendant, Jefferson Parish Sheriff Newell Normand. In their suit, plaintiffs argued that the Sheriff breached a duty owed to their decedent, Mrs. Sara-sino, by “failing to properly protect” Mrs. Sarasino from Miguel Rojas (“Rojas”), the perpetrator who killed Mrs. Sarasino, and also in “failure to timely arrest” Rojas.

Upon de novo review, for the following reasons, finding that there is no genuine issue as to material fact and that Sheriff Normand is entitled to judgment as a matter of law, we affirm the trial court’s grant of summary judgment that found the Sheriff immune from liability pursuant to La. R.S. 9:2798.1 and that dismissed all of plaintiffs’ claims against the Sheriff.

FACTS AND PROCEDURAL BACKGROUND

On September 27, 1999, Maria Ibanez Sarasino was shot and killed in her front yard in Kenner, Louisiana, by Miguel Rojas. Miguel was the brother of Alphonse Rojas, the husband of Mrs. Sarasino’s daughter, Maria Sol Sarasino. In December of 1998, Rojas was paroled from the custody of the Louisiana Department of Public Safety and Corrections, after serving approximately three years on a conviction for attempted murder. Upon his release, Rojas resided in Mrs. Sarasino’s home for several months, then briefly with his brother and sister-in-law, and then finally with his sister.

After his release from prison, Mrs. Sara-sino helped Rojas get a job at a restaurant where she was the kitchen manager. However, tensions developed between Rojas and Mrs. Sarasino, as well as with other family members. At some |apoint around the beginning of September of 1999, Alphonse Rojas discovered that his handgun was missing from his home; he suspected that his brother had taken it. The record reflects that Alphonse reported the stolen handgun to the Kenner Police Department on September 5,1999, and he informed the police that he believed his brother, Miguel, stole the handgun from his home. In response thereto, the Kenner Police Department investigated the matter and filed an incident report (Kenner Police Department report No. 9-80392-99).

On or about September 7, 1999, Rojas threatened Sarasino family members with violence and/or death. The Sarasino family notified the Jefferson Parish Sheriffs Office (“JPSO”), which investigated the matter and filed a report of Rojas’s threats (JPSO complaint No. 1-5726-99). The report indicates that the investigating officer conducted a criminal history check and learned that Rojas was on parole for three counts of attempted murder. The report further indicates that the investigating officer conducted a “dispo check” at 1800 Edenborn, where Rojas’ sister resided, but the “dispo proved fruitless.” The investigating officer noted in the report that he provided “1st District officers with all pertinent information on Miguel Rojas.”

On September 16, 1999, a JPSO officer contacted James Hurston, a probation and parole officer with the Louisiana Department of Public Safety and Corrections. According to Mr. Hurston, the JPSO officer advised him of the complaint the JPSO had received regarding threats Rojas had made against his brother’s family. The JPSO officer also told Mr. Hurston that Rojas may be armed with a handgun Rojas allegedly stole from his brother. On or about September 17, 1999, Mrs. Sarasino also notified Rojas’s parole officer of the threats that Rojas had made to inflict harm on the Sarasino family. She also gave the officer addresses on Edenborn Avenue and Trenton Street where Rojas might be found. |sThe addresses were outside the City of Kenner limits, but within the Parish of Jefferson.

On September 23, 1999, the Kenner Police Department obtained a warrant for Rojas’s arrest based upon his alleged theft of Alphonse’s handgun and for allegedly being a felon in possession of a firearm. The Kenner Police Department also notified Rojas’s parole officer about the warrant at this point. On September 27, 1999, Rojas arrived at Mrs. Sarasino’s home in Kenner and shot her in her fi'ont yard, killing her instantly. Rojas then drove away and was soon found at the Trenton Street address that Mrs. Sarasino had furnished to Rojas’s parole officer. Rojas barricaded himself at this address and engaged in a three-hour standoff with JPSO deputies, which concluded when he was shot and killed by the deputies.

Plaintiffs filed suit against the State of Louisiana through the Department of Public Safety and Corrections; Harry Lee, individually and in his Capacity as Chief of Police and/or Sheriff of Jefferson Parish; the Parish of Jefferson; Nick Congemi, individually and in his Capacity as Chief of Police of the Kenner Police Department; and the City of Kenner. The petition alleged that the various defendants were negligent in their “failing to properly protect” Mrs. Sarasino from Rojas, and also in their “failure to timely arrest” Rojas.

On May 14, 2014, Sheriff Normand filed a motion for summary judgment, seeking a dismissal of all of plaintiffs’ claims against him. He argued that under general negligence principles, plaintiffs failed to show that any actions or inactions of the JPSO were a cause in fact or proximate cause of Mrs. Sarasino’s death. The motion also argued that plaintiffs failed to show a breach of duty owed by the JPSO to Mrs. Sarasino, or that the harm she suffered fell within a duty owed to her.

Plaintiffs filed an opposition to the motion for summary judgment, arguing therein that the JPSO had a duty under Hardy v. Bowie, 98-2821 (La. 9/08/99), 744 So.2d 606, to affirmatively investigate violations of the laws (Rojas’s threats against them and possession of a firearm by a convicted felon), and to protect citizens, ie., the Sarasino family, who may be harmed by those violations. They also argued that the Sheriff failed to choose a reasonable course of action to investigate the complaints and to timely apprehend Rojas. They argued that the extent of the Sheriffs investigation—making one drive by to the address given—was not reasonable under the facts of this case. They supported their opposition by attaching Kenner Police Department incident report No. 9-80932-99, Sheriff Office’s complaint No. 1-5726-99, as well as the deposition of James Hurston, a probation and parole officer with the Louisiana Department of Public Safety and Corrections, and excerpts from the deposition of Maria Sol Sarasino, plaintiff and daughter of Mrs. Sarasino.

The Sheriff filed a reply memorandum to plaintiffs’ opposition, asserting therein that the statutory immunity of La. R.S. 9:2798.1 applied to shield the Sheriff from liability to plaintiffs, as the decision of when, how, and where to allocate department resources and personnel in the investigation and prevention of crime involved elements of choice, rather than a course of action specifically prescribed by statute, regulation, or policy.

A hearing on the motion for summary judgment was held on October 21, 2014. After hearing argument of counsel, the trial court took the matter under advisement. A judgment was ultimately rendered on November 6, 2014 in favor of the Sheriff. Reasons for judgment were issued holding that the statutory immunity of La. R.S. 9:2798.1 applied under the facts of this case. Plaintiffs appealed. The first appeal to this Court was dismissed and the matter was remanded with instructions. Following the lodging of the instant appeal, this Court, on November 15, 2016, ordered the trial court to enter an amended judgment containing the | ^necessary and proper decretal language. An amended judgment was issued on November 29, 2016, decreeing that summary judgment was rendered in favor of the Sheriff and that all of plaintiffs’ claims against the Sheriff were thereby dismissed.

On appeal, plaintiffs argue that the trial court erred in granting summary judgment in favor of the Sheriff because: 1) material issues of fact are still in dispute; and 2) immunity pursuant to La. R.S. 9:2798.1 does not apply herein because the acts and/or omissions of the JPSO were not grounded in policymaking or discretionary acts. They argue that the trial court unduly focused on the issue of posting a 24-hour guard to protect Mrs. Sara-sino, and failed to consider the Sheriffs failure to notify the Louisiana Department of Public Safety and Corrections of the “allegations against a dangerous parolee” (Rojas), and that such notification would have augmented the resources of the JPSO and would have allegedly resulted in the earlier apprehension of Rojas before he could murder Mrs. Sarasino. In their brief, plaintiffs also reassert the arguments made in their original opposition to the Sheriff’s motion for summary judgment, that the Sheriff breached a duty owed to Mrs. Sarasino by failing to timely execute the arrest warrant on Rojas.

In response on appeal, Sheriff Normand argues that the trial court correctly found that he is immune for his discretionary acts involved in this case pursuant to La. R.S. 9:2798.1. He argues .that a decision regarding the allocation of personnel is a discretionary act. Further, the decision of when, how, and where to allocate JPSO resources in the investigation and prevention of crime is one grounded in social and economic policy. The Sheriff argues that he is accordingly shielded by the immunity exception contained in La. R.S. 9:2798.1 for any liability arising out of plaintiffs’ claims. Alternatively, the Sheriff reiterates the arguments made in his motion for summary judgment that under general negligence principles, plaintiffs | ¿failed to show that any actions or inactions of the JPSO were a cause in fact or proximate cause of Mrs. Sarasino’s death, and that plaintiffs failed to show a breach of duty owed by the JPSO to Mrs. Sarasino, or that the harm she suffered fell within a duty owed to her.

ANALYSIS

Summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if. any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.

On appeal, our review of summary judgments is de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. A de novo review or an appeal de novo is an appeal in which the appellate court uses the trial court’s record, but reviews the evidence and law without deference to the trial court’s rulings. Wooley v. Lucksinger, 06-1140 (La. App. 1 Cir. 12/30/08), 14 So.3d 311, 335.

The trial court found that the Sheriff was immune from liability to plaintiffs pursuant to La. R.S. 9:2798.1, which provides, in pertinent part:

|7A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, in-strumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1)To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2)To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

In Hardy v. Bowie, supra, 744 So.2d at 613, the Supreme Court explained the function of the statutory immunity granted by La. R.S. 9:2798.1:

... [I]nstead of a traditional public duty doctrine in Louisiana, the legislature adopted La. R.S. 9:2798.1, which exempts public entities from liability for their employees’ discretionary or policy-making acts. (Internal citations omitted.) “Under [the discretionary function] doctrine, governmental decisionmakers exercising discretionary functions are immune from suit, because the courts should not chill legislative discretion in policy formation by imposing tort liability for discretionary decision.” (Internal citation omitted.)
However, where liability is based on a public entities’ non-discretionary acts, liability will be judged under the traditional duty-risk analysis. Fowler v. Roberts, supra (holding on rehearing that La. R.S. 9:2798.1 did not apply to immunize the DPS for its negligence, and reinstating the original majority opinion, as supplemented by the plurality opinion). In Fowler, we applied the .two-step test enunciated in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d. 531 (1988) for determining whether the discretionary function exception applies in specific fact situations. A court must first consider whether the government employee had an element of choice. “The discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.” Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. If the employee had no discretion or choice as to appropriate conduct, there is no immunity. When discretion is involved, the court must then determine whether that discretion is the |skind which is shielded by the exception, that is one grounded in social, economic or political policy. If the action is not based on public policy, the government is liable for any negligence, because the exception insulates the government from liability only if the challenged action involves the permissible exercise of a policy judgment. Fowler v. Roberts, supra at 15.

Thus, immunity based on La. R.S. 9:2798.1 applies when a policy judgment is made at the ministerial level, not at the operational level. Peterson v. City of Tallulah, 43,197 (La.App. 2 Cir. 4/23/08), 981 So.2d 192, 194-195, citing Fowler v. Roberts, 88-1422, 556 So.2d 1 (La. 1989), on rehearing, 556 So.2d 1 (La. 1990).

In Hardy, the victim’s mother sued the Lafayette Police Department when her son was fatally shot during a riot. The Court implicitly found that the actions of the officers complained of, allegedly failing to prevent her son’s shooting during a developing riot, did not involve the “permissible exercise of a policy judgment,” ie., the actions were non-discretionary, or in other words, were “operational.” The Court thus found that the statutory immunity did not apply, and proceeded to apply the duty/ risk principles of negligence to determine if the officers acted reasonably under the circumstances. Finding that the officers did act reasonably based on the evidence provided, the Supreme Court granted summary judgment in favor of the police department, finding no liability. In reversing the appellate court, the Supreme Court specifically found the following: “The police officers acted reasonably under the circumstances in the performance of their duties. Plaintiffs have presented no evidence demonstrating that material factual issues regarding the reasonableness of the police officers’ actions are in dispute.” Hardy v. Bowie, supra, 744 So.2d at 614.

In the present case, in its Reasons for Judgment in this case, the trial court determined that, citing Hardy v. Bowie:

The Court agrees that certainly this decision is grounded in economic policy, as the limited resources of the Jefferson Parish Sheriffs Office must be distributed according to that policy; social policy is implicated as well, in terms of whether even monies and ^manpower which are available should be focused on the needs of one family which would have had to be allocated to only them over an unknown, but most likely lengthy, amount of time due to a complaint of criminal behavior which had not yet even occurred. For those reasons, therefore, the Court finds that Sheriff Newell Normand and the JPSO are shielded by the immunity found under LSA-R.S. 9:2798.1, and its Motion for Summary Judgment is granted.

“Failing to properly protect” claim

Plaintiffs first argue that the trial court erred in finding that the Sheriffs decision not to place a 24-hour guard on Mrs. Sarasino was grounded in social and/or economic policy. They argue that the trial court ignored evidence that the Sheriff allegedly failed to conduct an adequate search for Rojas. They also argue that the Sheriff failed to notify the Department of Public Safety and Corrections regarding a “dangerous parolee” and that the Sheriff failed to show that such decision was grounded in social or economic policy.

Upon review, we agree with the trial court that the “failing to properly protect” claim, whether it consisted of a decision not to place a guard around a possible intended victim, or how often to search for someone who had threatened others, clearly invokes the permissible exercise of policy decisions such as how to allocate and employ resources and manpower, and thus statutory immunity clearly applies to defeat plaintiffs’ claim in this regard. Likewise, plaintiffs ignore the testimony from parole officer James Hurston that a JPSO officer contacted him and informed him of the stolen handgun and threats Rojas made against his family. Thus, the actions complained of under the “failing to properly protect” claim fall under the umbrella of policy decisions, not operational directives, entitling the Sheriff to statutory immunity from this claim.

110“Failure to timely arrest” claim

Plaintiffs have also argued that the Sheriff is liable for Mrs. Sarasino’s death because of his “failure to timely arrest” Rojas. As noted above, defendants’ entitlement to the defense of immunity, pursuant to La. R.S. 9:2798.1, turns on whether the challenged action involved the permissible exercise of a policy judgment or whether the challenged action was operational. If there is no room for an official to exercise a policy judgment, the discretionary function exception does not bar a claim that an act was negligent. Kniepp v. Shreveport, 609 So.2d 1163, 1166-1168 (La. App. 2 Cir. 1992).

A sheriff must execute an arrest warrant after receipt from a court officer within a reasonable and practicable time. Schexnayder v. Wilson, 427 So.2d 457 (La. App. 5 Cir. 1983). The duty to arrest pursuant to a warrant, therefore, can be operational in nature, because there is no discretion as to whether or not to arrest if the existence of a warrant and the location of the arrestee are immediately known. However, the instant case is distinguishable from the Hardy case and others cited herein, because in those cases, the arrests deemed “operational” were made pursuant to rapidly developing, emergent circumstances, and not pursuant to a previously issued warrant for arrest.

The application of the defense of immunity under La. R.S, 9:2798.1 depends on whether the police conduct in this ease regarding Rojas’s apprehension is characterized as either operational or discretionary. Upon review, we find that the Sheriffs conduct in this case was discretionary in that the ability to execute the outstanding warrant depended upon allocation of manpower and investigative resources, i.e., Rojas had to be located in order to arrest him, rather than, for example, if he had been pulled over for a traffic stop and an outstanding warrant was then discovered. This claim is similar to the first claim of failure to protect in that the basis appears to be how often and to what extent the police were required Into search for someone who had threatened others and for which an arrest warrant had been issued.

Further, plaintiffs did not provide any support for their claim that the Sheriff failed to “timely” arrest Rojas. In fact, plaintiffs failed to point to any evidence indicating that the JPSO was made aware of the arrest warrant obtained by the Ken-ner Police Department on February 23, 1999, just four days prior to Mrs. Sarasi-no’s death. Plaintiffs made no showing regarding what an appropriate time frame would have been in this particular matter, or, again, that the actions of the JPSO in conducting this investigation were not discretionary in nature.

In summary, we find that the Sheriff is shielded by the immunity exception contained in La. R.S. 9:2798.1 for any liability arising out of plaintiffs’ claims for the Sheriff’s alleged “failing to properly protect” Mrs. Sarasino from Rojas, and also for the Sheriffs alleged “failure to timely arrest” Rojas.

CONCLUSION

For the foregoing reasons, upon our de novo review finding that there is no genuine issue as to material fact and that Sheriff Newell Normand is entitled to judgment as a matter of law, we affirm the trial court’s grant of summary judgment in favor of the Sheriff, dismissing all of plaintiffs’ claims against the Sheriff.

AFFIRMED

      . Maria Sol Sarasino, Maria Jose Sarasino, and Norberto Sarasino, individually and as the administrator of the Estate of Maria Iba-nez Sarasino and as Natural Tutor of the minors, Jennifer Sarasino and Yazmin Sarasi-no, were named as parties-plaintiff in plaintiffs’ petition for damages.

      . After the death of Sheriff Harry Lee, Sheriff Newell Normand was substituted as a party-defendant.

      . The claims against Congemi and the City of Kenner were dismissed on December 2, 2014,

      . Sarasino v. State, 15-275 (La.App. 5 Cir. 10/28/15), 178 So.3d 199.

      . While the reasons for judgment discuss primarily the plaintiffs’ charge that Sheriff Normand was negligent in failing to properly protect Mrs. Sarasino, the amended judgment of November 29, 2016 makes clear that the judgment dismissed all of plaintiffs' claims against the Sheriff, including the claim that the Sheriff was negligent in failing to timely arrest Rojas, on the basis of the statutory immunity provided by La. R.S. 9:2798.1. Appeals are taken from judgments, not reasons for judgment. Dufour v. Horton, 609 So.2d 1109, 1113 (La. App. 2 Cir. 1992). See also La. C.C.P. art. 1918.

      . In light of our finding that the immunity provisions of La. R.S. 9:2798.1 shield the Sheriff from liability in this case, we preter-mit any discussion of the duty/risk principles of negligence to determine if the Sheriff acted reasonably under the circumstances presented in this case.