author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Curtis CHELEY
    17-538 consolidated with 17-696
    Court of Appeal of Louisiana, Third Circuit.
    January 4, 2018
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 80006, Lafayette, LA 70598-0006, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Curtis Cheley
    Hon. Asa Allen Skinner, Thirtieth Judicial District Attorney, Terry W. Lambright, First Assistant District Attorney, P. O. Box 1188, Leesville, LA 71446-1188, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   GREMILLION, Judge.

Defendant, Curtis Cheley, appeals his conviction for aggravated second degree battery and his sentence therefore and, in a consolidated appeal, his adjudication as a third felony offender. For the reasons that follow, we affirm his conviction, vacate his sentence, and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL POSTURE

On June 28, 2016, Sergeant Jerol Morrow of the Leesville Police Department was dispatched by a 9-1-1 operator to an incident involving Defendant. Sergeant Morrow knew Defendant and where he was living, so the sergeant proceeded to that location. On arrival, Sergeant Morrow witnessed Defendant on the ground struggling with a woman. Defendant was seen striking the woman and yelling at her, "Where's my kids? Where's my kids?" Sergeant Morrow, a trailing officer, and Deputy Paul Davis of the Vernon Parish Sheriff's Office, attempted to restrain Defendant. Sergeant Morrow was forced to administer pepper spray to effect the arrest of Defendant.

The woman Defendant battered was unresponsive to Sergeant Morrow's attempts to speak to her. Her face was very swollen, and her mouth was bloodied. She was identified as Ms. Mary Pittmon. Ms. Pittmon had been staying at Defendant's aunt's house, where Defendant also was residing.

Defendant and Ms. Pittmon were alone in the house on the morning of June 28, 2016. Ms. Pittmon was seated on the couch. Defendant was talking with someone on his phone, and stated, "I'm gonna take her out." Ms. Pittmon had no idea to whom Defendant was referring until he grabbed a red pipe, tucked it under his arm, and strode toward her with evident intent to strike her. Defendant struck Ms. Pittmon twice with the pipe, once on the head and once on her arm. Ms. Pittmon attempted to stand up, but slipped. Defendant then began to choke Ms. Pittmon with the pipe. He then lifted Ms. Pittmon and moved her toward the front door. Outside, Defendant pushed Ms. Pittmon to the ground on her stomach and began to punch her with his fists. Defendant was angrily asking Ms. Pittmon why she did not "feed his kids," whom Ms. Pittmon had never met. The beating continued until Sergeant Morrow intervened.

As a result of the beating, Ms. Pittmon sustained a broken tooth, mouth lacerations, and several bruises. She was transported to Byrd Memorial Hospital in Leesville, then to LSU Medical Center in Shreveport. This hospital move was necessitated by tachycardia Ms. Pittmon was experiencing following the battering.

On September 6, 2016, the State filed a bill of information charging Defendant with aggravated second degree battery, a violation of La.R.S. 14:34.7. The parties selected a six-member jury on January 17, 2017. The jury began hearing evidence on the same date. Proceedings continued on the following day, and the jury found Defendant guilty as charged.

On January 31, 2017, the State filed a bill of information charging Defendant as a third habitual offender, pursuant to La.R.S. 15:529.1. The trial court heard the matter on the same date and adjudicated Defendant as charged. On March 14, the court sentenced Defendant to twenty-two-and-one-half years at hard labor. In imposing this sentence, though, the trial court stated that the sentence was imposed without regard to habitual offender enhancement. Defendant now seeks review by this court.

ANALYSIS AND DISCUSSION

Errors patent

We review all appeals for errors patent, pursuant to La.Code Crim.P. art.920. We find none in this case.

Sufficiency of the evidence

Defendant's first assignment of error contends that the evidence adduced at trial was not sufficient to support his conviction of aggravated second degree battery. This assignment of error lacks merit.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) ; State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The elements of aggravated second degree battery are set forth in La.R.S. 14:34.7, which states in pertinent part:

A. Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.
B. For purposes of this Section, the following words shall have the following meanings:
....
(3) "Serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

Defendant contends that the State failed to prove serious bodily injury occurred. The victim had significant facial injuries. The treating physician, Dr. Maurice L. Prince, Jr., testified Ms. Pittmon was "an obvious victim of a battery" and "it's obvious that she was not only hit once but several times." One of her eyes was swollen nearly shut, she had a broken tooth, and badly lacerated lip that the victim testified required stitches.

In his argument, Defendant asserts: "She had contusions, lacerations, a broken tooth and some pain, but that does not rise to the level of 'serious bodily injury.' " He adds, "Evidence of extreme physical pain is lacking." Ms. Pittmon's testimony indicates disagreement with Defendant on this point. Defendant struck her several times with a pipe, which he then used to strangle her. Ms. Pittmon almost lost consciousness during this attack. While strangling Ms. Pittmon, Defendant brought his weight to bear on her by kneeling on her neck. Defendant hurled Ms. Pittmon out of the house and began to pummel her with his fists. Ms. Pittmon feared for her life.

In State v. Jackson , 02-1250 (La.App. 3 Cir. 2/5/03), 838 So.2d 841, writ denied , 03-832 (La. 10/17/03), 855 So.2d 759, we conducted an exhaustive examination of the jurisprudence and rejected similar contentions regarding whether injuries like Ms. Pittmon's constituted serious bodily injury. This assignment of error lacks any merit.

Excessive sentence and habitual offender status

Defendant's remaining assignments of error attack his sentence and his adjudication as a repeat offender. Defendant was adjudicated a third-felony offender. Under the terms of La.R.S. 15:529.1(A)(3)(a), a person convicted of a third felony "shall be sentenced to imprisonment for a determinate term not less than one-half of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction." A conviction of aggravated second degree battery is punishable by a fine of not more than $10,000.00 or imprisonment, with or without hard labor, for not more than fifteen years, or both. La.R.S. 14:34.7(C). Defendant was sentenced to twenty-two-and-one-half years, about which the trial court stated, "[P]ursuant to the Code of Criminal Procedure Article 894.1D, your sentence imposed was not enhanced upon the basis of any habitual offender proceedings or enhancement statutes." Because the sentence was not imposed pursuant to enhancement, it exceeded the maximum term of imprisonment allowed for the offense of aggravated second degree battery.

Defendant argues that the habitual offender hearing was defective because the evidence of his guilty plea to one of his previous convictions, possession of cocaine, did not demonstrate that he waived his right to a jury trial. This, Defendant argues, fails to show that he was properly advised of his rights under Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) : the protection against self-incrimination guaranteed by the Fifth and Fourteenth Amendments; the right to trial by jury guaranteed by the Sixth Amendment; and the right to confront one's accusers, also guaranteed by the Sixth Amendment.

The State argues that, at the time he was adjudicated a habitual offender, Defendant failed to object to the use of this guilty plea. We note that Defendant indeed failed to object to this evidence at the adjudication hearing. Louisiana Revised Statutes 14:529.1(D)(1)(b) requires that a defendant who contends that his previous convictions was invalid or unconstitutionally-obtained "shall file a written response to the information...

set[ting] forth his claim, and the factual basis therefor, with particularity... The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response." However, the Louisiana Supreme Court has held that defendants are allowed to collaterally attack the validity of a guilty plea used in habitual offender adjudications, despite not having objected as required in La.R.S. 15:529.1. State v. Balsano , 09-735 (La. 6/19/09), 11 So.3d 475. If the State proves the existence of a guilty plea and that the defendant was represented by counsel, the defendant must come forward with affirmative evidence showing an infringement of his rights or a procedural irregularity. The burden then shifts to the State. If the State can produce a " 'perfect' transcript" of the plea, it meets its burden; if not, the judge must then weigh whether the State proved that the plea was informed and voluntary. State v. Shelton , 621 So.2d 769, 775 (La.1993).

In this matter, the court minutes and transcript both reflect that Defendant was advised of his right to trial. Neither reflect that Defendant was advised of his right to trial by jury. The waiver of rights form referenced in the transcript was not entered into evidence at the habitual offender hearing.

Defendant argues that the failure to object to the introduction of this conviction constitutes ineffective assistance of counsel. We feel it unnecessary to reach such a determination, because, as noted above, the sentence Defendant received was impermissibly excessive, as it was not enhanced by his habitual offender status. Accordingly, we vacate the sentence and remand the matter to the district court for resentencing. We further remand for a hearing to determine whether Defendant's plea to the possession of cocaine charge was informed and voluntary.

DECREE

For the foregoing reasons, the conviction of Defendant, Curtis Cheley, of aggravated second degree battery is affirmed. His sentence of twenty-two-and-one-half years at hard labor is vacated, and the matter is remanded for an evidentiary hearing to determine whether Defendant's plea of guilty to possession of cocaine was informed and voluntary and for resentencing.

CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED.

      The appeal of this matter bears our docket number 17-538.

      The appeal of the habitual offender adjudication bears our docket number 17-696.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    SPECIALTY RETAILERS, INC. v. RB RIVER IV LLC, et al.
    17-490
    Court of Appeal of Louisiana, Third Circuit.
    January 4, 2018
    Jennie P. Pellegrin, Phillip M. Smith, Neuner Pate, Post Office Box 52828, Lafayette, Louisiana 70505-2828, (337) 237-7000, Counsel for Plaintiff/Appellant: Specialty Retailers, Inc.
    Edward C. Abell, Jr., Craig A. Ryan, Emily Breaux, The Onebane Law Firm, Post Office Box 3507, Lafayette, Louisiana 70502-3507, (337) 237-2660, Counsel for Defendants/Appellees: RB River IV LLC, RB River V LLC, RB River VI LLC
    Michael P. Bienvenu, Kinchen, Walker, Bienvenu, Bargas, Reed & Helm, L.L.C., 9456 Jefferson Highway, Building III, Suite F, Baton Rouge, Louisiana 70809, (225) 292-6704, Counsel for Defendant/Appellee: Stirling Properties, LLC
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Plaintiff, a commercial tenant, filed suit against its landlord and the property manager to recover rent it allegedly overpaid. The tenant and the landlord filed cross-motions for summary judgment concerning interpretation of the "Additional Rent" provision in the lease between them. The trial court denied the tenant's motion for partial summary judgment and granted summary judgment in favor of the landlord, dismissing the tenant's claims against it. The tenant appeals, and for the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. Plaintiff, Specialty Retailers, Inc. (SRI or the tenant), entered into a ten-year Lease Contract (the lease) with Weingarten Realty Investors (WRI) in February 2003, regarding a portion of a retail shopping center in Lafayette, Louisiana. Thereafter, SRI began operating a Stage department store in the leased premises. In May 2005, WRI transferred its interest in the shopping center to RB River IV LLC, RB River V LLC, and RB River VI LLC (collectively RBR or landlord). The lease called for SRI to pay three types of rent: Minimum Rent, Percentage Rent, and Additional Rent. In simple terms, the Additional Rent portion of the lease required SRI to make monthly payments to cover its proportionate share of the costs and expenses paid by the landlord. The lease provided for a year-end reconciliation of the monthly amounts paid by SRI against the actual amount that the landlord incurred in costs and expenses during that calendar year.

SRI hired third-party auditor Green Back Cost Recovery (Green Back) in 2014 to review the lease. Green Back concluded that SRI had been paying more than it owed in Additional Rent based upon its interpretation of a cap provision found in the lease. Thereafter, SRI sent several demand letters in accordance with the Louisiana Open Account Law to Stirling Properties, L.L.C. (Stirling), property manager of the shopping center, seeking a refund of the amounts it had allegedly overpaid. When its demands went unanswered, SRI filed suit against RBR and Stirling (hereafter collectively referred to as Defendants), alleging that they were guilty of breach of contract and/or that they were liable to it on open account and seeking damages of $213,529.39.

After Defendants answered the suit, SRI filed a motion for partial summary judgment seeking to have the trial court declare as a matter of law that Section 22.01(E) of the lease capped the "actual CATI[ ] payments" owed by it to RBR. In response, RBR filed a motion for summary judgment asserting that the lease obligated SRI to "pay its proportionate share of all Common Area Operating Costs, Taxes and Insurance Premiums incurred on an annual basis and that Section 22.01(E) simply limit[ed] the monthly payment obligations against those annual costs." Stirling filed a memorandum in support of RBR's motion and against that filed by SRI. Following a hearing, the trial court denied SRI's motion for partial summary judgment and granted summary judgment in favor of RBR, dismissing SRI's claims against it. SRI timely appealed the ensuing judgment and is now before this court assigning these errors:

1. In deciding that the annual cap on Tenant's Share of CATI only applied to estimated monthly payments, the district court erroneously interpreted the clear and unambiguous language of Section 22.01(E) of the Lease Contract, which expressly provides that Tenant's Share of actual CATI may not increase by more than four percent (4%) each year.
2. The district court's erroneous interpretation of the Lease Contract renders Section 22.01(E) meaningless because, without an annual cap on Tenant's share of actual CATI, the additional rent would be unpredictable and the reconciliation process found in Section 22.02 would be unnecessary.
3. To the extent the district court found the Lease Contract to be ambiguous, the district court erroneously failed to consider that the undisputed facts establish the intent of the original parties to the Lease Contract to provide for an annual cap on actual CATI (as evidenced by similar contracts between SRI and WRI).

DISCUSSION

Standard of Review

"Appellate review of the granting of a motion for summary judgment is de novo , using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate." Smitko v. Gulf S. Shrimp, Inc. , 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755. "The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. ... The procedure is favored and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). On de novo review, "there is no deference to the trial judge's legal findings, and we make an independent review of the evidence in determining whether there is no genuine issue of material fact and whether the mover is entitled to judgment as a matter of law under La.Code Civ.P. art. 966." Bridges v. Cepolk Corp. , 13-1051, p. 10 (La.App. 3 Cir. 2/12/14), 153 So.3d 1137, 1145, writ denied , 14-901 (La. 8/25/14), 147 So.3d 1117. "A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Smitko , 94 So.3d at 755.

According to La.Code Civ.P. art. 966(D)(1) :

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

In Bridges , 153 So.3d at 1145, this court noted that "[b]ecause this case involves cross-motions for summary judgment, our task is to determine whether either party has established that there are no genuine issues of material fact and whether either party is entitled to judgment as a matter of law."

Interpretation of Leases

Louisiana Civil Code Article 2668, titled "Contract of Lease defined," provides that lease is a "contract by which one party, the lessor, binds himself to give the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay." In Van Mol v. Beasley , 15-869 (La.App. 3 Cir. 2/3/16), 184 So.3d 280, this court was tasked with reviewing a judgment rendered based upon a trial court's interpretation of a lease between a landlord and a tenant. Therein, we noted:

"[W]hen a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law." Sims v. Mulhearn Funeral Home, Inc., 07-0054, p. 10 (La. 5/22/07), 956 So.2d 583, 590. "Interpretation of a contract is the determination of the common intent of the parties." La.Civ.Code art. 2045. The reasonable intention of the parties to a contract is to be sought by examining the words of the contract itself, and not assumed. Sims, 07-0054 at p. 7, 956 So.2d at 589 ; McConnell v. City of New Orleans, 35 La. Ann. 273 (1883). "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La.Civ.Code art. 2046. Common intent is determined, therefore, in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 93-0911 (La. 1/14/94), 630 So.2d 759, 763.

Prejean v. Guillory, 10-740, pp. 6-7 (La. 7/2/10), 38 So.3d 274, 279.

To determine the meaning of words used in a contract, a court should give them their generally prevailing meaning. If a word is susceptible to different meanings, it must be interpreted as having the meaning that best conforms to the object of the contract. A provision susceptible of different meanings must be interpreted with a meaning that renders the provision effective, and not with one that renders it ineffective. Furthermore, each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.[ ]
St. Mary Operating Co. v. Guidry, 06-1495, p. 6 (La.App. 3 Cir. 4/4/07), 954 So.2d 397, 402, writ denied, 07-962 (La. 6/29/07), 959 So.2d 520, quoting Claitor v. Delahoussaye, 02-1632 (La.App. 1 Cir. 5/28/03), 858 So.2d 469, writ denied, 03-1820 (La. 10/17/03), 855 So.2d 764 (internal citations omitted).

Van Mol , 184 So.3d at 284.

This court has further held:

When a contract is to be interpreted by the court as a matter of law, a motion for summary judgment is a proper procedural vehicle to present the question to the court....
However, if a court determines as a matter of law that a contract is ambiguous, then extrinsic (parol) evidence may be used to determine the true intent of the parties, and determining the intent of the parties becomes, in part, a question of fact. In this posture, the granting of a summary judgment is appropriate only if "there is no genuine issue as to material fact ..."

LFI Fort Pierce, Inc. v. Acme Steel Buildings, Inc. , 16-71, p. 7 (La.App. 3 Cir. 8/17/16), 200 So.3d 939, 946 (quoting Carter v. BRMAP, 591 So.2d 1184, 1188 (La.App. 1 Cir. 1991) ), writ denied, 16-1684 (La. 11/29/16), 210 So.3d 804.

The Lease

SRI's first two assignments of error focus on Section 22.01(E) of the lease. It claims that the "clear and unambiguous language" of that particular provision placed a cap on the "actual CATI" that it owed per year and that any other interpretation would render Section 22.01(E) meaningless. RBR counters that SRI's argument is flawed because it fails to consider the lease as written and in its entirety. RBR submits that Section 22.01(E) caps SRI's monthly CATI payments which can "only be estimated because they are paid monthly in advance." RBR contends that its interpretation of Section 22.01(E), which the trial court accepted, is correct given the yearly reconciliation provision found in Section 22.02 of the lease which compares SRI's actual share of CATI to the monthly payments that SRI previously paid and which does not reference a cap.

The Additional Rent provision is found in Article XXII of the lease, which begins as follows:

Section 22.01. Commencing on the first day of the Lease Term and continuing for the balance of the Lease Term, in addition to and separate from the Minimum Rent and Percentage Rent, Tenant shall pay to Landlord as additional rent the Tenant's Share of Common Area Operating Costs, Taxes and Insurance Premiums (as such terms are hereinafter defined).

The lease then provides (emphasis added):

A. The phrase "Common Area Operating Costs " shall mean, for each calendar year (or portion thereof) during the term of this Lease, the aggregate of all costs, expenses and liabilities of every kind or nature paid or incurred by the Landlord (to the extent that Landlord, in its good faith judgment, regards it as appropriate to provide ... [ ).]
....
D. The phrase "Tenant's Share " as applied to Common Area Operating Costs, Taxes and Insurance Premiums shall refer to a sum calculated by multiplying the Common Area Operating Costs, Taxes and Insurance Premiums (as the case may be) by a fraction, the numerator of which is the floor area (in square feet) of the Leased Premises, ... and the denominator of which is the aggregate leasable floor area (in square feet) of all buildings in the Shopping Center. ...
E. Tenant shall pay to Landlord one-twelfth (1/12) of Tenant's Share of Common Area Operating Costs, Taxes and Insurance Premiums (hereinafter collectively referred to as "CATI "), monthly in advance, for each and every month during the term of this Lease every month during the term of this Lease.... Notwithstanding the foregoing, in calendar years 2003 and 2004, respectively Tenant's Share of CATI shall not exceed $5,416.67 per month (the "CATI Payment ").... After the expiration of calendar year 2004, the CATI Payment may increase by no more than four percent (4%) per calendar year (compounded annually); provided however, that the CATI Payment may never exceed one-twelfth (1/12) of Tenant's Share of CATI during the applicable calendar year.

After explaining the meaning of the terms used therein, the lease gives the Landlord the right to "to estimate Tenant's Share of CATI," subject to a year-end reconciliation whereby the "the actual amount of Tenant's Share of CATI" is compared to "the aggregate amount previously paid by Tenant" that year (emphasis added). Thereafter, SRI would owe any shortfall to RBR within twenty days. On the other hand, any overpayment made by SRI would be either credited to its "next ensuing installment of CATI due" or refunded by RBR.

We conclude that the language of the lease at issue herein clearly and unambiguously requires SRI to pay to RBR, on a yearly basis, its actual share of the Common Area Operating Costs incurred by RBR, without reference to any cap. SRI's arguments to the contrary are flawed. The result sought by SRI confuses the terms CATI and Tenant's Share, and it fails to consider and give meaning to the entire Additional Rent section of the contract. Moreover, SRI's fear that the Additional Rent provision of the lease could serve as a "potential profit center" for RBR is unjustified given the lease's inclusion of a mechanism to substantiate the amount of Additional Rent that RBR seeks to collect from it. SRI's first and second assignments of error lack merit. Because we have found no ambiguity in the lease between SRI and RBR, we do not reach SRI's third assigned error. We conclude that the trial court did not err in granting summary judgment in favor of RBR.

DECREE

For the foregoing reasons, the trial court judgment is affirmed. All costs of this proceeding are assessed against Plaintiff/Appellant, Specialty Retailers, Inc.

AFFIRMED.

      The Minimum Rent was a fixed amount arrived at by multiplying a set price per square foot by the amount of square footage leased by SRI.

      The Percentage Rent obligated SRI to pay a percentage of its gross sales in excess of a specified breakpoint amount.

      See La.R.S. 9:2781.

      In the commercial lease context, "CATI" is an acronym for Common Area Operating Costs, Taxes, and Insurance Premiums.

      See La.Civ.Code art. 2050.

      See Section 22.02 of the lease which provides:
      Subject to Section 22.01(E) above, Landlord shall have the right, exercisable by Landlord giving notice to Tenant from time to time during the term of this Lease (but not more often than twice in any one [1] calendar year), to estimate Tenant's Share of CATI for the relevant calendar year indicated by Landlord, whereupon, commencing on the date designated by Landlord and continuing for the balance of the period during the term of this Lease indicated by Landlord, Tenant shall pay Landlord on the first day of each month, monthly in advance, one-twelfth (1/12th) of the amount so estimated by Landlord.
      Subject to Section 22.01(E) above, at the end of each calendar year occurring during the term of this Lease (and subsequent to the expiration or other termination of this Lease if such occurs on a date other than the last day of a calendar year), Landlord will give Tenant notice of the total amount paid by "Tenant" for the relevant calendar year accompanied by reasonable information necessary to substantiate the amount thereof together with the actual amount of Tenant's Share of CATI for such calendar year. If the actual amount of Tenant's Share of CATI with respect to such period exceeds the aggregate amount previously paid by Tenant with respect thereto during such period, Tenant shall pay to Landlord the deficiency within twenty (20) days following notice from Landlord; however, if the aggregate amount previously paid by Tenant with respect thereto exceeds Tenant's Share of CATI for such period, then, at Landlord's election, such surplus (net of any amounts then owing by Tenant to Landlord) shall be credited against the next ensuing installment of CATI due hereunder by Tenant, or Landlord may refund such net surplus to Tenant. At the end of the term of this Lease, Landlord shall refund any surplus to Tenant within thirty (30) days.


text:
    STATE IN the INTEREST OF J.A.
    17-500
    Court of Appeal of Louisiana, Third Circuit.
    January 4, 2018
    S. Marie Johnson, Public Defender's Office, 106 West Berard Street, St. Martinville, Louisiana 70582, (337) 394-1446, Counsel for Appellant: D.A. (mother)
    Diane E. Cote, Attorney at Law, 825 Kaliste Saloom Road, Brandywine III, Room 150, Lafayette, Louisiana 70508, (337) 262-5913, Counsel for Appellee: State of Louisiana, Department of Children & Family Services
    Jocelyn Sias, The Sias Firm, LLC, 203 West Main Street, Suite 105, New Iberia, Louisiana 70560, (337) 321-9516, Counsel for Appellee: J.B. (father)
    Denise Henderson, Raveen Hill, Mental Health Advocacy Service, Child Advocacy Program, 302 Dulles Drive, Suite U-47, Lafayette, Louisiana 70506, (337) 262-2030, Counsel for Appellee: J.A. (child)
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

D.A. appeals the judgment of the trial court terminating her parental rights to her minor child, J.A. For the following reasons, the trial court's judgment is affirmed.

FACTS & PROCEDURAL HISTORY

The mother, D.A., and the father, J.B., together produced one female child, J.A., who was born on October 6, 2012. On December 28, 2014, the State of Louisiana, Department of Children and Family Services (DCFS) received a report that J.A. was an alleged victim of dependency, lacked parental supervision, and lived in an inadequate shelter. Following an initial investigation into the allegations, the DCFS recommended that it retain temporary custody of J.A., who had been living with her mother in the home of her maternal grandmother, M.A. An oral instanter order was issued placing J.A. in the temporary custody of the DCFS on January 4, 2015. On January 7, 2015, a written instanter order with a supporting affidavit was filed and signed by the trial court and contained the information regarding DCFS's investigation into the reported claims. On that same date, a continued custody hearing was held which resulted in the trial court signing a formal judgment maintaining custody of J.A. with the DCFS. On January 8, 2015, the State filed a Petition of Child in Need of Care alleging that J.A. was a victim of neglect as defined under La.Ch.Code art. 603(18), secondary to the mother's substance abuse and mental health illness along with the absence of the father. The allegations contained in the petition were denied by D.A. at the answer hearing on February 12, 2015. The trial court thereafter granted the State's request in its petition.

Following an adjudication hearing and pursuant to the trial court's written judgment dated March 10, 2015, J.A. was adjudicated a child in need of care. The trial court found that it was in J.A.'s best interest to remain in the custody of the DCFS. The written judgment advised D.A. of the case review and permanency review procedure along with her obligation to cooperate with the department and to comply with all of the case plan's requirements. According to the judgment, failure to comply with the case plan could result in termination of parental rights.

Thereafter, multiple permanency review hearings occurred wherein the trial court was presented with a DCFS case plan, DCFS progress reports, and supporting evidence. Initially, the DCFS formulated a court-approved case plan outlining a strategy for reunification between D.A. and J.A. The strategy for reunification subsequently changed to adoption based upon D.A.'s continued substance abuse and mental health issues.

On May 3, 2016, the DCFS filed a formal Petition for Termination of Parental Rights and Certificate of Adoption, seeking to terminate D.A. and J.B.'s parental rights and clear the way for the foster parent to adopt J.A. Trial on the petition occurred on August 19, 2016. After considering the testimony and evidence offered at trial, the trial court orally terminated the father's parental rights and continued the matter with respect to the termination of D.A.'s parental rights. The matter proceeded to trial on October 31, 2016. After hearing the testimony and evidence presented, the trial court terminated D.A.'s parental rights for reasons stated in open court. It subsequently issued a written Judgment of Termination of Parental Rights and Certification for Adoption on November 16, 2016, terminating the parental rights of both parents. D.A. appealed.

The appeal was lodged with this court on May 30, 2017. On May 31, 2017, we issued a rule for D.A. to show cause why the appeal should not be dismissed as untimely filed. Based on the allegations contained in the Appellant's response brief, this court ordered a limited remand to allow the trial court to conduct a contradictory hearing on the untimeliness issue. State in Interest of J.A. , 17-500 (La.App. 3 Cir. 6/28/17), 224 So.3d 411. According to trial court's minutes dated August 18, 2017, which is in the supplemental record on review, the trial court found that D.A.'s appeal was timely filed.

On appeal, D.A. contends that the trial court erred in granting judgment in favor of the DCFS, terminating her parental rights.

STANDARD OF REVIEW

"In a termination proceeding, the appellate court will not set aside the trial court's findings of fact unless it was manifestly erroneous." State in Interest of J.M.L ., 47,201, p. 5 (La.App. 2 Cir. 4/11/12), 92 So.3d 447, 450. Questions of fact in a proceeding for termination of parental rights include the "issue of parental compliance with a case plan, the parent's expected success of rehabilitation, and the expectation of significant improvement in the parent's condition and conduct." Id .

DISCUSSION

In her assignment of error, D.A. contends that the trial court erred in granting judgment in favor of the DCFS, terminating her parental rights.

A parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. State in Interest of A.C ., 93-1125 (La. 1/27/94), 643 So.2d 719. This parental interest includes the "care, custody, and management of their child." State ex rel. J.M., 02-2089, p. 7 (La. 1/28/03), 837 So.2d 1247, 1252. Consistent with the parental interest, the state has a legitimate interest in limiting or terminating parental rights under certain conditions. Id. Because termination of parental rights is a severe action, the state bears the burden of establishing each element of a ground for termination by clear and convincing evidence. La.Ch.Code art. 1035 ; State ex rel. B.H. v. A.H. , 42,864 (La.App. 2 Cir. 10/24/07), 968 So.2d 881. The statutory grounds for involuntary termination of parental rights are found in La.Ch.Code art. 1015, although "only one ground need be established." State ex rel. B.H. , 968 So.2d at 885. Once a ground for termination has been established, the parental rights may be terminated by the trial court if it is in the child's best interest. Id. ; La.Ch.Code art. 1037.

In this case, the trial court's written judgment states that the DCFS "met its burden of proof by clear and convincing evidence under Louisiana Children's Code Articles 1015(4) (now 1015(5) and 1015(5) (now 1015(6)[.]" It explained:

[T]hat at least one year has elapsed since the child was removed from the parents' custody pursuant to a court order; case plans for services as to the minor child were formulated for the mother and father and approved by the court; that said parents have failed to substantially comply with their respective case plans, including but not limited to a lack of mental health treatment and substance abuse treatment; that for a period of at least four months as of the time of the trial, despite a diligent search, the whereabouts of the child's father continued to be unknown, that the father has failed to maintain significant contact with the child by visiting her or communicating with her for any period of six consecutive months; that said parents have failed to provide significant contributions to their child's care and support for a consecutive six month period; that the conditions that led to the removal or similar potentially harmful conditions continue to persist; that there is no reasonable expectation of significant improvement in said parents' condition or conduct in the near future; that termination of parental rights is in the best interest of the minor child, [J.A.], for the reason set forth above.

The trial court's judgment terminating D.A.'s parental rights was based upon the following grounds enunciated in La.Ch.Code art. 1015 :

(5) Abandonment of the child by placing [her] in the physical custody of a nonparent, or the department, or by otherwise leaving [her] under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting [her] or communicating with [her] for any period of six consecutive months.
(6) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and [her] need for a safe, stable, and permanent home.

Lack of parental compliance with a case plan under La.Ch.Code art. 1015(6) may be evidenced by one or more of the following:

(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

La.Ch.Code art. 1036(C).

Similarly, lack of a reasonable expectation of significant improvement in the parents' conduct under La.Ch.Code art. 1015(6) may be evidenced by one or more of the following:

(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

La.Ch.Code art. 1036(D).

Applying the aforementioned law, we must determine: (1) whether the DCFS established the grounds for termination pursuant to La.Ch.Code arts. 1015(5) and/or 1015(6) by clear and convincing evidence; and (2) whether it is in J.A.'s best interest to terminate D.A.'s parental rights. See State in Interest of M.C. , 16-69 (La.App. 3 Cir. 6/1/16), 194 So.3d 1235, writ denied , 16-1273 (La. 9/6/16), 205 So.3d 918.

DCFS case managers assigned to this matter testified at trial. Bobby Bernard testified that he was the family's case worker from January 4, 2015 through July 2015. Bernard noted that the DCFS was previously involved in a family service case with D.A. and J.A. from January 28, 2013 through April 21, 2014, after J.A. was born a "drug exposed newborn." Medical records from Women's & Children's Hospital, which were submitted into evidence at trial and in the record for our review, confirm J.A. was a drug exposed newborn arising from "maternal [Tetrahydrocannabinol] THC use." A Department of Social Services, Office of Community Services' written child abuse report issued after J.A.'s birth, and which was also submitted into evidence, notes that J.A.'s "drug screen is positive for cannabinoids-THC, which is marijuana. Mother admits to using marijuana 'about once per week.' "

With respect to the instant matter, Bernard testified that J.A. came into DCFS's custody on January 4, 2015, due to inadequate shelter, lack of adequate supervision, and D.A.'s substance abuse. Bernard stated that D.A., who did not have independent housing, was residing at the home of her mother and J.A.'s grandmother, M.A. According to Bernard's testimony, he met with D.A. to discuss a case plan that she needed to follow in order to be reunited with her daughter. The case plan, which the DCFS noted in its permanency review reports submitted to the trial court prior to the permanency review hearings, required D.A. to meet the following goals: (1) take random drug screens; (2) maintain a safe home, with connected utilities, that adequately meets J.A.'s needs; (3) participate in mental health treatment and medication management; (4) maintain contact with J.A.; and (5) cooperate with the DCFS and make herself available for contact. Bernard testified that D.A. only complied with the parenting component of the plan by completing a parenting class and visiting with J.A.

D.A. submitted to random drug tests from February 2015 through April 2015, according to Bernard's testimony. He advised that some of the results were positive for synthetic marijuana. Bernard revealed that D.A.'s failure to submit to a drug test on April 10, 2015, rendered her results positive for illicit drugs on that date. He opined that D.A.'s main problem was her use of synthetic marijuana, which continued while she was in treatment. His testimony is supported by the trial testimony of D.A.'s mother, M.A., who testified that D.A. refuses to stop smoking synthetic marijuana. Bernard advised that D.A. was minimally complying with the substance abuse treatment program provided by Keys For Sober Living, L.L.C. (Keys), and that "she always admitted when she used synthetic marijuana." Bernard testified that D.A. admitted to smoking it "almost [on] a daily basis." Bernard referenced a June 2015 incident wherein D.A., who was at the courthouse, left during her lunch break to retrieve synthetic marijuana. According to Bernard's testimony, D.A., along with two of Bernard's former clients, subsequently retreated to D.A.'s home where they smoked it.

Bernard testified that D.A. was referred to Iberia Mental Health Clinic (Iberia Health) for treatment in May 2015. According to Bernard, D.A. opined that she did not need treatment although she went to her first two appointments. He cautioned that D.A. failed to present to her doctor's appointments on June 22, 2015 and July 10, 2015. His testimony is supported by the medical records submitted into evidence at trial. Bernard referenced a meeting that occurred at his office between him and D.A.'s sister, Shawana Thibadeaux, regarding her possible role as J.A.'s caretaker. During their meeting, D.A. appeared at the office and began fighting with Ms. Thibadeaux, according to his testimony. A police report dated July 20, 2015, and submitted into evidence at trial, reveals that D.A. and Ms. Thibodeaux were issued a summons for disturbing the peace following a physical altercation between the siblings.

Bernard noted that D.A.'s substance abuse contributed to her erratic behavior exhibited during his visits to M.A.'s residence where D.A. resided. Bernard testified that during these visitations, he observed multiple arguments between D.A. and M.A. According to M.A.'s own trial testimony and a November 22, 2015 police report from the St. Martin Parish Sheriff's Office, one of these arguments resulted in D.A. being arrested for domestic abuse battery after punching her mother. He revealed that at the end of June 2015, the front door of M.A.'s residence contained broken glass which posed a safety threat. Bernard testified on cross-examination that D.A. punched a door and broke a window at the home. D.A.'s own trial testimony reveals that she punched the glass in the front door of the home which required her to have stitches. He referenced a December 28, 2014 report regarding inadequate shelter based upon observations of clutter, rats, and rat feces inside the home, which he opined constituted a safety hazard for J.A.

As to parental contributions, Bernard testified that D.A.'s parental contributions were approximately ten dollars. He stated that D.A. purchased food and an outfit for J.A. Deidra Chevalier, a DCFS foster care worker involved in the matter, testified at trial that toys D.A. may have given to J.A. during their visitations were not a replacement of her parental contributions that she was required to pay directly to the State of Louisiana. Chevalier testified that D.A. never provided parental contributions.

Chevalier further testified that she was involved with the family since August 2015 and was "the current case worker" at the time of trial. She opined that D.A. failed to substantially comply with the case plan, by stating:

[D]ue to the fact of not receiving the advice of professionals to comply with working the case plan to get the treatment help as far as mental health and substance and inpatient treatment because of the seriousness of the substance that she was addicted to or is still addicted to ... I would have to say [she] is noncompliant.

Chevalier classified D.A.'s behavior as sporadic, meaning that she would act fine one day and then exhibit outrageous behavior the following day. She opined that J.A. should not return to D.A. because of her continued substance abuse and mental health issues for which D.A. refuses to seek help.

Chevalier testified that D.A. was referred to Iberia Health for treatment. She also indicated that D.A. never showed up to complete the actual assessment or other previously-scheduled appointments. On the other hand, Chevalier noted that D.A. voluntarily, and without having a previously-scheduled appointment, walked into the clinic and sought treatment on one occasion. According to Chevalier's testimony, D.A. was unable to seek treatment that day as Iberia Health informed her that she needed to schedule an appointment. She explained that D.A. subsequently admitted to falsely advising the DCFS that she had scheduled a return appointment with Iberia Health, "just to get us off her back about the actual date."

Chevalier's testimony indicates that she visited M.A's home twice where she observed an old gas heater that posed a safety risk. Chevalier explained that she thereafter was unable to return to the home because of D.A.'s "continual violent behaviors." According to Chevalier's testimony as well as with a police report filed into evidence at trial, on one occasion, D.A.'s violent behavior led to her arrest for assault on a child welfare worker,. Chevalier noted that D.A.'s arrest occurred after she called the DCFS on September 30, 2015 and stated: " 'I'm going to go to New Orleans and get a chopper and kill all of y'all * * * * *, shoot all of y'all * * * * *.' "

With respect to substance abuse issues, Chevalier's testimony along with medical records from Pathways Community Health (Pathways Health) submitted into evidence at trial, reveal that D.A. tested positive for benzodiazepines on July 6, 2016. D.A. did not fail all of her drug tests, according to Chevalier's testimony. She cautioned, however, that D.A. admitted to using synthetic marijuana prior to some of her drug tests which rendered negative results. Chevalier's testimony is confirmed by D.A.'s trial testimony in this regard. Chevalier further advised that D.A. completed her substance abuse courses but relapsed in September 2015, resulting in a positive test for illicit drugs. As a result, D.A. sought additional treatment from Keys in December 2015, according to Chevalier's testimony. She advised that in February 2016, Keys secured a bed for D.A. at Acadiana Recovery Center (Acadiana Recovery), an in-patient facility located in Lafayette. Chevalier testified that when a DCFS van was transporting D.A. to Acadiana Recovery, she exhibited threatening behavior which caused the driver of the van to turn around and bring her home. D.A., in her own trial testimony, revealed that she called Chevalier "a liar and a crook" when she was being transported in the van. Chevalier noted that D.A.'s family thereafter brought her to Acadiana Recovery to be admitted although she was refused by the facility due to her having to go through detoxification.

According to Chevalier's testimony, D.A. was referred to Baton Rouge Detoxification Center (Baton Rouge Detox) in April 2016 by Dr. Joseph Wilson of Keys. Chevalier advised that D.A. was admitted to the facility on April 14, 2016, and discharged on April 16, 2016, following an altercation between D.A. and one of the facility's clinicians. Chevalier testified that D.A. admitted to her that an altercation occurred that resulted in her discharge. Chevalier advised that D.A. was admitted for in-patient treatment at Pathways on July 5, 2016, and subsequently discharged on July 6, 2016. D.A. voluntarily left Pathways because "she did not want to stay for that long period of time," according to Chevalier. D.A. was thereafter supposed to seek outpatient treatment from Keys, according to Chevalier. Chevalier revealed that she was informed by Keys that D.A. "had never attended again even after being re-deferred."

Chevalier recalled that D.A. confessed to an incident which occurred on August 31, 2015, at McDonalds wherein she slapped her manager and was subsequently arrested. Although D.A. claimed to have worked at McDonalds and in the sugarcane industry, she failed to provide check stubs or other proper documentation showing her employment status, according to Chevalier. D.A.'s trial testimony reveals that she knew of the requirement to provide Chevalier with proof of employment. D.A. further agreed that she worked at McDonalds, planted sugarcane, and has been working with a man painting his rent houses. Bernard's testimony likewise reveals that D.A. was unemployed during his involvement with the instant matter, that D.A. previously worked for McDonalds, and that she failed to provide check stubs confirming her employment.

As to J.A.'s health, Chevalier agreed with Bernard's testimony that J.A. was a substance exposed newborn. Chevalier noted that J.A. was assessed by her pediatrician, Dr. Allison Rader, who thereafter referred her to Tulane Center for Autism and Related Disorders to be evaluated for the presence of an Autism Spectrum Disorder (ASD). According to the medical report in the record, although J.A. was found not to have autism, she was diagnosed with neurodevelopmental disorder associated with early developmental deprivation caused by child neglect. Chevalier revealed that D.A. failed to seek treatment for J.A. at Iberia Health, which facility offered to assist J.A. following a request by the DCFS. Chevalier claimed that J.A. has made "significant" progress since DCFS has assisted in getting her medical care. She indicated J.A.'s speech along with her ability to socialize and interact has improved. She further noted that J.A. refers to her foster mother as "mom."

Janice Barideaux, a Court Appointed Special Advocate (CASA) volunteer, testified at trial on behalf of the DCFS. Barideaux testified that she interviewed D.A. on multiple occasions wherein D.A. refused to listen to her advice and made several threats. Barideaux agreed with Chevalier's testimony that D.A. would self-report to smoking synthetic marijuana despite her negative drug test results. She recommended that J.A. not return to D.A. and be placed for adoption. Her recommendation was noted in a CASA report that she prepared and submitted to the trial court in preparation of a July 14, 2015 review hearing, and which was offered into evidence at trial in the instant matter. Therein, Barideaux noted that CASA did not agree with the DCFS's recommendation for reunification based upon the following concerns: D.A.'s poor hygiene; D.A.'s ongoing abuse of drugs and her uncontrollable outbursts of anger; and the condition of the home. The CASA report noted the possibility that J.A. may have been molested.

D.A., who also testified at trial, admitted that she was diagnosed with conversion disorder following Hurricane Katrina. She was placed on Zoloft but later stopped taking it because she did not like it, according to her testimony. D.A. agreed that J.A. was born substance exposed because she smoked regular marijuana, and not synthetic marijuana, during her pregnancy. D.A. stated that she fully participated with the substance abuse component of the case plan by undergoing all drug screens. When the results of her drug screens were negative, D.A. self-reported that she continued to use synthetic marijuana, according to her testimony. D.A. testified that she had not smoked synthetic marijuana in the month prior to trial. She noted that she complied with the mental health component of the case plan. D.A. agreed that she left Keys against medical advice because she felt it "was unnecessary." She denied being terminated from Baton Rouge Detox following a fight with a technician. When asked again whether she was terminated, D.A. explained: "There's racism over there at that Baton Rouge Detox. Very racist." When asked a third time whether she was terminated, D.A. responded, "So said." When asked whether D.A. was involved in a physical altercation with her mother, D.A.'s response was: "I don't remember." She subsequently agreed, however, that her charges for simple battery were dismissed. D.A. indicated that she never hit her mother, and that her mother was "[p]retty much" lying.

When asked whether she tested positive for benzodiazepines on July 5, 2016, she said, "I never used it." On the other hand, she stated that she took her grandmother's medication to sleep, "but it made me fail my drug screen and I never took it since." When asked about the DCFS's discontinuing home visits because of her violent and threatening behavior, she said the only person she threatened was Megan James. According to the affidavit in support of the instanter order, Megan James was the DCFS employee who initially investigated the matter. D.A. testified that she said the following about James: "I should kill her and take-let her children be without her mama." D.A. denied threatening to shoot other DCFS employees.

D.A.'s behavioral and substance abuse issues were the subject of a multiple DCFS reports filed with the trial court during the course of the proceedings. Specifically, a DCFS report dated July 7, 2016, states:

At this time, [D.A.] has demonstrated to the agency that she has a severe substance abuse and anger management problem. Although [D.A.] has participated and completed substance abuse treatment, she continues to admit to abusing and positive drug screens of synthetic marijuana. She has also maintained regular attendance and completed Keys for Sober Living; however she continues to abuse illegal substances. Due to unaddressed mental illness, [D.A.'s] violent threating [sic] behaviors, substance abuse history [D.A.] has displayed diminished capacity to provide safety and stability for her child[.]

Based on our review of the record, we conclude that the DCFS has satisfied its burden of proving that D.A. has not substantially complied with the case plan, and there is no reasonable expectation of improvement in her conduct. The trial testimony of each of the case managers, as well as the numerous DCFS reports filed with the trial court over the course of these proceedings, demonstrate a lack of substantial compliance. The evidence is clear that D.A. is incapable of managing the care of J.A. in light of her ongoing substance abuse and mental health issues.

We now turn to the issue of whether it is in J.A.'s best interest to terminate D.A.'s parental rights. The documentation in the record reflects that J.A. has found a loving and secure home with the current foster mother. The record indicates that J.A. is thriving in her new home. J.A. was moved from D.A.'s custody at approximately the age of two years and three months and placed into multiple foster homes. When J.A. was approximately three years old, she was placed and remains in a certified foster home. According to the DCFS report dated July 7, 2016:

Since [J.A.'s] move she has been doing excellent. Her skin condition has improved and [J.A.] cries every time she is picked up by the agency for visitations with her mom or just a home visit. [J.A.] fears being moved again and states that this is her new home. [J.A.] has adjusted home with [the foster mother] and has her own room. All [J.A.'s] medical, recreational, social needs have been met. [J.A.] attends appointments regularly, attends school regularly and attends visitations with her mom. [J.A.] is currently attending A little touch of Love day care. She is continuing to receive Special Education services through Iberia Parish School Board. [J.A.] is currently receiving occupational therapy, speech therapy, and will be re-evaluated for Physical Therapy. [J.A.] is also receiving services from Acadiana Area Human Services District which provides disability services. [J.A.] has been approved to receive disability services through the agency.

The report reveals that the foster mother has "assured all of J.A.'s basic needs were met." It further notes that:

[J.A.] is well bonded and attached to her foster parent. This placement is the least restrictive and most appropriate and familiar setting consistent with the needs of the minor child. [The foster mother] has created a loving and structured environment for [J.A.] to thrive in. [J.A.] regularly attends family gatherings and is a part of [the foster mother's] family. [The foster mother] is interested in adopting [J.A.] in the event she becomes freed for adoption.

In termination proceedings, the fundamental interest of the parents must be balanced with the interest of the child, and "courts of this state have consistently found the interest of the child to be paramount over that of the parent." State ex rel. J.M. , 837 So.2d at 1252. In this case, the evidence and testimony reveal that D.A. wants to reunite with her daughter. The evidence and testimony also reveal that D.A. continues to suffer from substance abuse and mental health issues, which render her unable to properly care for J.A. J.A. has a paramount interest in remaining in the stable and loving environment provided by the foster mother, with the security and permanency her adoption will provide J.A.

We find that the trial court did not commit manifest error in its determination that it was in the best interest of J.A. to terminate the parental rights of D.A. and free the minor child for adoption.

DECREE

For the foregoing reasons, the trial court's judgment is affirmed. All costs associated with this appeal are assessed to D.A.

AFFIRMED.

      Pursuant to Uniform Rules-Courts of Appeal, Rules 5-1 and 5 -2, the initials of the parties will be used to protect and maintain the privacy of the minor children involved in the proceeding.

      Benzodiazepines are a class of drugs used for treating anxiety and other disorders and include the following brand-named drugs: Valium, Ativan, Xanax, and Klonopin.

      Zoloft is used to treat depression, obsessive-compulsive disorder, and panic and anxiety disorders.


text:
    George Raymond WILLIAMS, M.D., Orthopaedic Surgery, a Professional Medical LLC, et al. v. BESTCOMP, INC., et al.
    17-478
    Court of Appeal of Louisiana, Third Circuit.
    January 4, 2018
   Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPELLEE: George Raymond Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C.

Patrick C. Morrow, James P. Ryan, Morrow, Morrow, Ryan, Bassett & Haik, 324 W. Landry Street, Opelousas, LA 70570, (337) 948-4483, COUNSEL FOR PLAINTIFF/APPELLEE: George Raymond Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C.

Stephen B. Murray, Sr., Stephen B. Murray, Jr., Arthur M. Murray, The Murray Law Firm, 909 Poydras Street, Suite 2150, New Orleans, LA 70112, (504) 525-8100, COUNSEL FOR PLAINTIFF/APPELLEE: George Raymond Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C.

John S. Bradford, William B. Monk, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., One Lakeside Plaza, Fourth Floor, Lake Charles, LA 70601, (337) 436-9491, COUNSEL FOR PLAINTIFF/APPELLEE: George Raymond Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C.

George D. Fagan, Margaret F. Swetman, Anton L. Hasenkampf, Leake & Anderson. L.L.P., 1100 Poydras Street, Suite 1700, New Orleans, LA 70163, (504) 585-7500, COUNSEL FOR DEFENDANT/APPELLANT: Chartis Specialty Insurance Company

Michael A. Balascio, Barrasso Usdin Kupperman, 909 Poydras Street, 24th Fl, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT/APPELLEE: Darwin Select Insurance Company

Patrick A. McShane, T.A., Carl E. Hellmers, III, Heather A. McArthur, Frilot LLC, 1100 Poydras St., Suite 3700, New Orleans, LA 70163, (504) 599-8000, COUNSEL FOR DEFENDANT/APPELLANT: Landmark American Insurance Company

Maureen O. Sullivan, Tabitha R. Durbin, Christie Noel, Jean Ann Billeaud, Lewis, Brisbois, Bisgaard & Smith, LLP, 100 E. Vermilion, Suite 300, Lafayette, LA 70501, (337) 326-5777, COUNSEL FOR DEFENDANT/APPELLANT: Illinois National Insurance Company Westchester Surplus Lines Insurance Company

Christine Lipsey, Jamie D. Seymour, McGlinchey, Stafford, PLLC, 301 Main St., 14th Fl, Baton Rouge, LA 70801, (225) 383-3683, COUNSEL FOR DEFENDANT/APPELLEE: Cinga Health Management, Inc.

Marshall M. Redmon, Phelps, Dunbar, P. O. Box 4412, Baton Rouge, LA 70821-4412, (225) 346-0285, COUNSEL FOR DEFENDANT/APPELLEE: Indian Harbor Insurance Company

Alex J. Peragine, Peragine & Lorio, LLC, 527 E. Boston St., Suite 201, Covington, LA 70433, (985) 292-3500, COUNSEL FOR DEFENDANT/APPELLEE: Cannon Cochran Management Services, Inc.

James M. White, III, Attorney at Law, P. O. Box 3939, Covington, LA 70434, (985) 778-7000, COUNSEL FOR DEFENDANT/APPELLEE: CCMSI Holdings, Inc.

Angella H. Myers, Mark Christopher Carver, The Myers Law Group, 1100 Poydras St., Ste 2520, New Orleans, LA 70163, (504) 252-9877, COUNSEL FOR DEFENDANT/APPELLEE: Advantage Health Plans, Inc. Joseph Bonsignore

Gerald A. Melchiode, Melchiode Marks King, LLC, 639 Loyola Ave, Ste 2550, New Orleans, LA 70113, (504) 336-2880, COUNSEL FOR DEFENDANT/APPELLEE: Hammerman & Gainer, Inc.

Gabriel J. Veninata, Hailey McNamara, Hall, Larmann & Papale, LLP, P. O. Box 8288, Metairie, LA 70011, (504) 836-6500, COUNSEL FOR DEFENDANT/APPELLEE: Stratacare, LLC

David C. Bach, Attorney at Law, 4871 Abelia Drive, Baton Rouge, LA 70808-1903, (225) 803-9661, COUNSEL FOR DEFENDANT/APPELLEE: Stratacare, LLC

Pablo Gonzalez, Phelps, Dunbar, LLP, 365 Canal St., Suite 2000, New Orleans, LA 70130-6534, (504) 566-1311, COUNSEL FOR DEFENDANT/APPELLEE: Beazley Insurance Company

Ryan M. Goudelocke, Durio, McGoffin, Stagg, P. O. Box 51308, Lafayette, LA 70505-1308, (337) 233-0300, COUNSEL FOR DEFENDANT/APPELLEE: Hammerman & Gainer, Inc.

Scott T. Winstead, Burleson, LLP, P. O. Box 131599, Spring, TX 77393-1599, COUNSEL FOR DEFENDANT/APPELLEE: Rehab Review, Inc.

Elizabeth C. Austin, Brown Sims, 600 Jefferson St., Suite 800, Lafayette, LA 70501, (337) 424-1240, COUNSEL FOR DEFENDANT/APPELLEE: Bestcomp, Inc.

Joseph P. Landreneau, Gold, Weems, Bruser, Sues & Rundell, P. O. Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR DEFENDANTS/APPELLEES: Dauterive, Women's and Children's Hospital LRPHO

Thomas R. Juneau, The Juneau Firm, P.O. Drawer 51268, Lafayette, LA 70505-1268, (337) 269-0052, SPECIAL MASTER

Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

GREMILLION, Judge.

Defendants/appellants, Chartis Specialty Insurance Company, Darwin Select Insurance Company, Landmark American Insurance Company, Illinois Union Insurance Company, and Westchester Surplus Lines Insurance Company, appeal the class certification in this matter. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL POSTURE

The plaintiffs seeking class certification in this matter, George Raymond Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C.; West Louisiana Health Service, Inc., d/b/a Beauregard Memorial Hospital; Joe Wilson; and Wilson Chiropractic Center, Inc., all allege that they represent healthcare providers who rendered treatment to injured employees under the terms of the Louisiana Workers' Compensation Act. These plaintiffs subscribed to preferred provider organization (PPO) agreements with Bestcomp, Inc., which was allegedly insured by the defendant insurers. Plaintiffs allege that Bestcomp discounted their billing in accordance with the PPO agreements without the notice required by La.R.S. 40:2203.1. These discounts were determined utilizing software developed by StrataCare, L.L.C. The plaintiffs were appointed class representatives for purposes of settlement with StrataCare. The defendants were sued under the Louisiana Direct Action Statute in their capacities as the insurers of StrataCare.

The trial court heard the plaintiffs' class certification motion on November 9, 2016. Putative class counsel and class representatives testified. Many exhibits were offered and filed to support and oppose the motion. Among those exhibits was Plaintiffs' Exhibit 4, the corporate deposition of StrataCare, which included a data disc containing information regarding recommended PPO discounts, presented as a Microsoft Excel spreadsheet. It has been asserted by both sides that this disc contains information that may be pertinent to the determination of issues of numerosity and commonality. However, the defendants objected to the introduction of the disc and maintain that it may not be properly considered by this court. The nature of the defendants' objection was that the data on the disc only showed the PPO discounts StrataCare recommended and not how many were actually taken.

The matter was taken under advisement, and, on February 13, 2017, the trial court issued written reasons. The trial court determined that there were 49,988 claims to be adjudicated, based upon the information on the disc. Because there was evidence that no discount that StrataCare's software recommended was not applied, the defendants argued that additional evidence of an individual nature would be required to adjudicate the claims. The trial court rejected this argument, as the information was readily available and mostly could be gleaned from a relatively small number of sources. The trial court further found that it would be impractical to join all potential claimants, given the existence of 49,988 potential claims.

The trial court found that the issue of commonality was satisfied. The common issue herein, according to the trial court, was whether Bestcomp improperly applied PPO discounts in reimbursing the class members for treatment of workers' compensation patients in failing to provide the notice required by La.R.S. 40:2203.1. The issue, then, in the trial court's eyes was the same as to all claimants.

The trial court found that there were no conflicting or antagonistic claims between the class representatives and the other class members, rejecting the defendants' argument that the class representatives' claims were disproportionate to those of other class members. The defendants also pointed out that Dr. Wilson and Wilson Chiropractic had already settled their claims. Because the measure of damages was not in the specific amount of each discount, but rather lies in the statutory damages imposed for a breach of La.R.S. 40:2203.1, the trial court reasoned, the difference between claims by the class representatives and the class members did not create conflicting or antagonistic claims. Citing federal jurisprudence, the trial court ruled that a proposed class representative is not disqualified by virtue of a previous settlement. And, the trial court noted, these same proposed class representatives had been appointed to represent the class in the settlement with StrataCare and served in that capacity without objection or criticism. Accordingly, the trial court found the class representatives capable of adequately representing the class in this litigation.

The trial court found that the class was susceptible of being objectively identified in ascertainable criteria. The StrataCare spreadsheet would serve as a means of identifying the potential members without the necessity of inquiring into the merits of each claimant's claim.

Defendants contended that the StrataCare spreadsheet only indicated the recommended discounts; thus, the inquiry into whether discounts were actually taken should predominate over class issues. Further, defendants argued, certain claims might be preempted by the Emergency Medical Treatment and Labor Act, 42 U.S.C.A. § 1395dd. Because this issue addressed the merits of the case, the trial court held that it should not prevent certification of the class. While this might represent an individualized issue, the trial court reasoned, it should not predominate over the common issues of the class. Similarly, the trial court rejected the defendants' contention that the issue of which class member received proper notification, how they received it, and the amount of damages that might be owed to each class member did not predominate over the common issues.

A judgment was signed on March 8, 2017, certifying the following class:

All medical providers who have provided services to workers' compensation patients as contemplated in La. R.S. 23:1201, et seq. , and whose bills have been discounted after January 1, 2000 pursuant to a preferred provider organization agreement, as defined in La. R.S. 40:2202, by and through Bestcomp, Inc. and Stratacare.

Defendants then lodged the present appeal. They assert the following assignments of error:

1. The District Court erred in failing to conduct a rigorous analysis to determine whether Plaintiffs carried their burden of proof to demonstrate that the requirements of Louisiana Code of Civil Procedure article 591 have been met.
2. The District Court abused its discretion in certifying a class where Plaintiffs failed to present the requisite admissible evidence that the purported class claims are "capable of resolution on a class-wide basis on common evidence."
3. The District Court erred in finding that common issues predominate when individualized inquiries will be required to determine nearly every aspect of Plaintiffs' claims, including whether any violation occurred with respect to each and every recommended discount.
4. The District Court erred in determining that class adjudication is the superior method of adjudication, despite the fact that the majority of the purported class members have individual claims with alleged values of at least $200,000 dollars in addition to their claims for attorneys' fees.
5. The District Court erred by appointing class representatives whose claims are not typical of the purported class they seek to represent, and who do not adequately represent the interests of the purported class members.
6. The District Court erred in relying on an inadmissible, unauthenticated, and incomplete summary submission, which was not "evidence."

ANALYSIS AND DISCUSSION

The statutory framework for conducting litigation as a class action is provided in La.Code Civ.P. art. 591. Initially, the party seeking class certification must establish that the matter meets five criteria:

(1) The class is so numerous that joinder of all members is impracticable (numerosity);
(2) There are questions of law or fact common to the class (commonality);
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality);
(4) The representative parties will fairly and adequately protect the interests of the class (adequacy); and,
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member's cause of action to determine whether an individual falls within the defined class (definability).

La.Code Civ.P. art. 591(A).

If all the above criteria are met, the proponent of class certification must then prove one of four additional criteria:

(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.

La.Code Civ.P. art. 591(B). These criteria demonstrate the superiority of the class action procedure over litigation involving each member of the proposed class.

In certifying a class, the trial court's findings of fact are subject to review under the manifest error standard. Gunderson v. F.A. Richard & Assocs., Inc. , 07-331 (La.App. 3 Cir. 2/27/08), 977 So.2d 1128, writs denied , 08-1063, 08-1072 (La. 9/19/08), 992 So.2d 953. The decision to certify a class lies within the discretion of the trial court, which should err in favor of maintaining the class action. Id. The burden of proof lies with the party seeking to certify the class. Id. The party seeking class certification must prove that the requirements of La.Code Civ.P. art. 591 are in fact met; the statutory requirements are not formalities of pleading, and the rule that favors maintaining a class action cannot substitute for actual proof and a rigorous analysis of that proof. Price v. Martin , 11-853 (La. 12/6/11), 79 So.3d 960.

Essential to the trial court's findings was the information contained on the data disc. This disc revealed over 49,000 claims, upon which the trial court found "the potential for 49,988 claims and the impracticality of joinder of the individual class members satisfies the numerosity requirement." Defendants argue that the disc was never properly admitted into evidence, as it constitutes a summary, as defined in La.Code Evid. art. 1006, and the underlying documents from which it was generated were not admitted. Further, Defendants argue that the disc was never properly authenticated.

Under La.Code Evid. art. 901(A), "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The article then describes examples, "[b]y way of illustration only," of authentication methods that satisfy its requirements. La.Code Evid. art. 901(B)During the certification hearing, Dr. Williams's office manager, his wife, Monica Williams, testified about the process of billing and payment. Mrs. Williams compared the information on the spreadsheet with Explanations of Benefits forms (EOBs) they received from the compensation insurers. The EOBs always reflected that a Bestcomp PPO discount was being applied to Dr. Williams's bill. Mrs. Williams also compared sample EOBs with the data on the spreadsheet and testified to the consistency between the EOB data and the spreadsheet data.

Further, Plaintiffs offered the testimony of Ms. Stephanie Lilja, Fee Schedule Compliance Analyst with StrataCare. The disc was offered without an objection as an exhibit to that deposition, and Ms. Lilja reasonably authenticated a printout of data from that disc and testified that she had examined "a majority" of the information on the disc itself, and it appeared to reflect the Bestcomp discounts recommended by StrataCare in Louisiana.

We are satisfied that the totality of the testimony regarding the disc sufficiently demonstrates that it is what Plaintiffs purport it to be, a summary of charges submitted to Bestcomp for which StrataCare recommended whether to apply PPO discounts and the amounts of recommended PPO discounts.

But the disc does appear to meet the definition of a "summary" for purposes of La.Code Evid. art. 1006. By its plain wording, the purpose of the rule is to provide a practical means of presenting voluminous material to the finder of fact. When the source documents originate from the opponent of the summary, the article's requirement that the proponent of the summary to make the originals or duplicates of the source documents available to other parties "at a reasonable time and place" is obviated. Id. Further, there was no evidence presented at the hearing that Defendants had not been given an opportunity to examine the source documents. Accordingly, we find that the trial court did not err in admitting, for purposes of the class certification hearing, the data disc. Assignment of error number six lacks merit.

We now turn to the effect of the data on the disc in the trial court's decision to certify the class. The trial court was impressed by the sheer number of potential claims. The number of claims, though, is not the issue in determining numerosity; the number of claimants is. See La.Code Civ.P. art. 591(A)(1). An examination of the data reveals that there are 618 non-duplicate healthcare provider entries on the spreadsheet. Of those 618 healthcare providers, 349 had their bills reduced pursuant to PPO agreements. That means there are 349 potential claimants, and we find this number easily satisfies the numerosity requirement of La.Code Civ.P. art. 591(A)(1).

Defendants also object to the certification of the class on the basis of a lack of commonality. They argue that proving breaches of La.R.S. 40:2203.1 will require a separate trial as to each alleged violation. In support of this contention, Defendants cite Price , 79 So.3d 960.

In Price , suit was filed on behalf of a putative class against a manufacturer, and its two successors in ownership, of creosote-treated railroad ties for soil, sediment, groundwater, and building contamination over a sixty-six-year period. During this extended period of time, the manufacturing facility changed ownership, and each owner altered the activities at the plant such that, at unspecified times, the contaminating activities varied. Only two of the three owners were sued. Testimony was presented demonstrating that many of the chemicals by which the plaintiffs alleged their properties were contaminated could have been emitted from sources other than the defendants' operation. Further complicating the case was the fact that the legal standards governing the defendants' potential liability changed during the sixty-six-year period. Exemplary damages for the claims would only be available for actions that occurred from 1984 through 1996, during which time La.Civ.Code art. 2315.3 was in effect. Also, the Clean Air Act, 42 U.S.C.A. § 7401 - 7431, came into effect during the time that the alleged contamination occurred, and it was amended in 1990; both of these federal legislative actions would affect the liability of the defendants. And, each defendant's conduct would differ in time and in the legal standards that would govern their actions. Thus, the supreme court held that the issue of breach of duty could not be proven by common evidence.

Similarly, the plaintiffs were required to show that there was a causal connection between specific emissions and the damage to their properties. They were required to prove this using common evidence. The supreme court found that they could not, because a number of factors beyond the defendants' control-including the actions of the plaintiffs themselves-would yield varying test results, thus casting doubt on the facility as the source of the contaminants.

The facts of Price , 79 So.3d 960, are readily distinguished from those in the present matter. Only the conduct of StrataCare is at issue in this case. Each member of the class is alleged to have provided medical care for workers' compensation patients and had their bills discounted without notice pursuant to La.R.S. 40:2203.1.

On the other hand, the facts of the present case are similar to Gunderson , 977 So.2d 1128. Gunderson involved different defendants, but the allegations as to the alleged misconduct were identical; PPO discounts were applied without notice to discount the bills of health care providers who treated workers' compensation patients.

The defendants interposed the same arguments in Gunderson as the present defendants in this matter. This court rejected each of them. The claims involve liability that is imposed "solely in the failure to timely give notice." Id. at 1138. The imposition of penalties under La.R.S. 40:2203.1 in no way relies upon the amount of the bill that was discounted. The possibility of inconsistent results and considerations of judicial economy weighed greatly in favor of class treatment, as did the fact that defending individual suits would prove far more expensive to defendants than class treatment. The fact that some claimants' demands are far larger than others' was not of great moment. The fact that Wilson Chiropractic had settled its demands is no more an impediment to his class representation as was a similar situation in Gunderson .

Because the named class representatives "each have less than [sixty-five] instances of alleged discounts, involving only one or a few patients," as opposed to other members of the putative class, for whom the "typical" claim exceeds $200,000.00, Defendants argue that the class representatives lack the typicality to adequately represent the class. The typicality "element determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct." Baker v. PHC-Minden, L.P. , 14-2243, p. 21 (La. 5/5/15), 167 So.3d 528, 543. Thus, "A plaintiff's claim is typical if it arises out of the same event, practice, or course of conduct giving rise to the claims of the other class members and those claims arise from the same legal theory." Id. In the present matter, while the class representatives' claims my not be as great as those of other members of the class, they do arise from the same conduct and recovery is sought under the same legal theory. The trial court did not manifestly err in finding this element of La.Code Civ.P. art. 591 satisfied.

Defendants have raised an additional argument not addressed in Gunderson : imposing a $2,000.00 penalty for each infraction may be constitutionally prohibited given the relatively minor amounts of some of the discounts. In support of their proposition, Defendants cite BMW of N. Am., Inc. v. Gore , 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). The Gore case establishes several criteria a court must consider in determining whether a punitive or exemplary damage award or a fine exceeds the limits of the Due Process Clause: the scope of the state's legitimate interest in deterring certain conduct; whether there existed adequate notice that such conduct would be penalized and the degree to which it would be penalized; "the degree of reprehensibility" of the conduct; "the disparity between the harm or potential harm suffered" as a result of the conduct and the penalty imposed; "and the difference between this remedy and the civil penalties authorized or imposed in comparable cases." Id. at 575, 116 S.Ct. 1589. We do not see that the resolution of this issue would require any individualized inquiry, because the evidence proving a violation of the statute is common to all claims. The state's interest in deterring the conduct will be the same. The degree of reprehensibility of the conduct will be the same. There is no difference between the remedy imposed by La.R.S. 40:2203.1 in one case versus another. The only inquiry of an even remotely individual nature is the disparity between the harm or potential harm suffered and the penalty imposed, and we do not view this of a sufficiently individual nature to warrant not handling this on a class-wide basis.

CONCLUSION

We cannot say the trial court manifestly erred in finding that the requisites for class certification of La.Code Civ.P. art. 591 were met. We certainly cannot say the trial court abused its discretion in certifying the class. The judgment of the trial court certifying the class is affirmed. All costs of this appeal are taxed to defendants/appellants, Chartis Specialty Insurance Company, Darwin Select Insurance Company, Landmark American Insurance Company, Illinois Union Insurance Company, and Westchester Surplus Lines Insurance Company

AFFIRMED.

      As the trial court noted, this objection really addresses the weight the data should be afforded, not its admissibility, as will be discussed below.

      Defendants have raised one additional argument in this matter, which will be addressed.


text:
    Lillie D. WHEAT v. LOUISIANA STATE BOARD OF PRACTICAL NURSE EXAMINERS
    NO. 17-CA-394
    Court of Appeal of Louisiana, Fifth Circuit.
    November 27, 2017 Rehearing Denied December 21, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, LILLIE D. WHEAT, Thomas J. Hogan, Jr.
    COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA STATE BOARD OF PRACTICAL NURSE EXAMINERS, Jerry W. Sullivan
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
    On appeal, Lillie Wheat challenges that trial court's ruling that affirmed the decision of the Louisiana State Board of Practical Nurse Examiners (the "Board"), to deny her application for licensure. For the following reasons, this appeal is dismissed.
    Facts and Procedural History
    The facts are not in dispute. On January 31, 2012, Ms. Wheat completed a form entitled "Evaluation for Admission to a Practical Nursing Program." In her application, Ms. Wheat admitted that she had been terminated or resigned in lieu of termination by a state agency. In her explanation of the incident, Ms. Wheat stated that she was "wrongfully terminated" for using "excessive force" while defending herself against a "violent female youth."
    In 2013, after completing her coursework, Ms. Wheat applied to the Board to take the practical nursing exam to obtain her license. On July 18, 2013, Ms. Wheat received a letter from the Board, seeking further information regarding her termination from a state agency. On November 12, 2013, in its subsequent letter, the Board informed Ms. Wheat as follows:
    Upon reviewing all information submitted, it appears that you may have violated the law relating to the practice of practical nursing. A summary of the accusations being made against you is as follows:
    The board received documents from Florida Parish Juvenile Detention Center (FPJDC) indicating that you were terminated on January 19, 2012 for violating company role/policy by using excessive force on a child and made several threatening statements. Additionally, on your application for employment with FPJDC, you stated that you graduated from Coastal College's Certified Nursing Assistant (CNA) program; however on your evaluation form you state that you did not complete the CNA program at Coastal College.
    Ms. Wheat was informed that her eligibility for licensure would be determined by the "full board following a formal hearing."
    On May 2, 2014, the formal hearing before a hearing officer was held. On October 10, 2014, at the meeting of the full board, the hearing officer presented findings of fact and conclusions of law, with her recommendation that Ms. Wheat be denied licensure, fined $500.00 for violations of La. R.S. 37:969(A)(4), and assessed a hearing fee of $500.00. The Board adopted the hearing officer's findings and conclusions and issued an order denying Ms. Wheat's eligibility for licensure, which was mailed to Ms. Wheat on October 10, 2014.
    On November 7, 2014, Ms. Wheat filed a petition for judicial review of the adverse administrative ruling. In her brief to the district court, she alleged that the Board's decision should be reversed because, after the Board's initial acceptance and admission of Ms. Wheat into a Practical Nursing Program, the Board caused Ms. Wheat to rely to her detriment that she was eligible for licensure by the Board. Ms. Wheat also prayed for "such damages as may be proved at the trial."
    On May 11, 2015, the Board filed an opposition to the petition. In it, the Board argued that, under La. R.S. 37:969, the Board's jurisdiction extends only to applicants for licensure and licensees. Therefore, the Board did not acquire jurisdiction over Ms. Wheat until the date that she applied to take the licensing examination, which was on or about July 18, 2013. The Board contended that, once it acquired jurisdiction over Ms. Wheat, it could inquire into her statements on her application for admission into a Practical Nursing Program, which, after a formal hearing, revealed that she was not eligible for licensure.
    On June 2, 2016, the trial judge heard argument on this case. That day, the judge found that the record reflected that the Board did not act arbitrarily and capriciously and, thus, denied the petition for review. On July 12, 2016, the trial judge signed a judgment affirming the Board's decision and denying the petition for review. Notice of judgment was mailed that day. No motion for appeal was filed.
    On August 9, 2016, the Board filed a peremptory exception of no cause of action alleging that Ms. Wheat has no cause of action against the Board as it has "quasi-judicial absolute immunity" for its actions in this case. After a hearing, the trial judge granted the Board's exception of no cause of action on November 28, 2016. On January 18, 2017, Ms. Wheat filed a motion for appeal of the July and November judgments, which was granted. This appeal follows.
   Law and Argument

The issues before us are (1) whether Ms. Wheat timely appealed the judgment affirming the Board's ruling and denying her petition and (2) whether the trial court properly entertained the exception of no cause of action.

First, we will address the timeliness of the appeal of the July judgment. The Louisiana Administrative Procedures Act (APA) provides the scope of a trial court's judicial review of an administrative decision in La. R.S. 49:964. Fritzner v. City of New Orleans , 12-1617 (La. App. 4 Cir. 5/22/13), 116 So.3d 945, 946. Further, La. R.S. 49:965 states, "An aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal. The appeal shall be taken as in other civil cases."

"A judgment that determines the merits in whole or in part is a final judgment." La. C.C.P. art. 1841. Here, the district court judgment affirmed the Board's ruling denying Ms. Wheat's licensure, which determined the merits in their entirety and, thus, was a final judgment.

La. C.C.P. art. 2087(A) provides:

Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

In this case, neither party moved for a new trial or judgment notwithstanding the verdict. The final judgment at issue was rendered on July 12, 2016. Notice of judgment was mailed that day. Under La. C.C.P. art. 1974 and La. C.C.P. art. 1811, the seven-day delay for filing a motion for new trial or a motion for judgment notwithstanding the verdict expired on July 20, 2016. Thus, Ms. Wheat had until Monday, September 19, 2016 to take a devolutive appeal. Ms. Wheat's motion for appeal was filed on January 18, 2017, well outside of the delay allowed by law. Thus, this Court lacks jurisdiction to address the merits of the final judgment rendered on July 12, 2016.

Next, we turn to whether the trial court properly entertained the Board's peremptory exception of no cause of action. According to La. C.C.P. art. 921, "An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant, whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him." "The function of the peremptory exception is to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action." La. C.C.P. art. 923.

As we noted above, the trial court's denial of Ms. Wheat's petition for judicial review addressed the merits of the matter in their entirety. Thus, there was no action to dismiss or defeat. Further, the trial court was acting in an appellate posture. Under the Administrative Procedures Act, Ms. Wheat's remedy against the Board was limited to administrative relief, not damages for alleged tortious conduct. For these reasons, we find that the trial court erred in entertaining the exception as it was moot.

Conclusion

Based on the foregoing, we dismiss this appeal as untimely.

APPEAL DISMISSED .

      The time period ended on Sunday, September 18, 2016, which is a legal holiday under La. R.S. 1:55, and, thus, not included in the time computation pursuant to La. C.C.P. art. 5059.

      This opinion does not address whether a litigant might file a petition for damages against a Board in an ordinary proceeding