text:
    STATE of Louisiana v. Alexander LOICANA
    NO. 2018-K-0497
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 22, 2018
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, 619 S. White St., New Orleans, Louisiana 70119, COUNSEL FOR STATE OF LOUISIANA, RELATOR
    Emily New, Orleans Public Defenders, 2601 Tulane Avenue, Seventh Floor, New Orleans, Louisiana 70119, COUNSEL FOR ALEXANDER LOICANO, RESPONDENT
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins )
    Judge Terri F. Love This writ application stems from the arrest of defendant for the possession of methamphetamines and drug paraphernalia. The items were seized when a police officer was securing the defendant's car, which was parked on the side of the road. Defendant filed a motion to suppress the evidence and statements contending that the items were unlawfully seized. Based on the premise that the police officer had no legal basis for being in defendant's vehicle, the trial court suppressed the evidence and statements and found no probable cause.
   No exceptions to the warrant requirement apply to the facts and circumstances of the present matter. Therefore, we find that the trial court did not err by granting defendant's motion to suppress. The writ is granted, but relief is denied.

FACTUAL BACKGROUND AND TESTIMONY

On November 24, 2017, Joshua Leyser telephoned 9-1-1 to report that he was a victim of a domestic disturbance. New Orleans Police Officer Derrick Burmaster reported to the scene in the Lower Garden District. Mr. Leyser informed Officer Burmaster that his boyfriend, Alexander Loicano, had "stomped [him] on the ground," injuring him. Officer Burmaster observed an injury to Mr. Leyser's forehead, which he believed corroborated his story. Mr. Leyser pointed out Mr. Loicano's car parked on a nearby corner, and identified Mr. Loicano, who was sitting inside his vehicle, as his attacker. Shortly thereafter, Mr. Loicano drove away. Officer Burmaster followed Mr. Loicano in his patrol car and "was able to pull [defendant] over." Officer Burmaster then issued Mr. Loicano his Miranda warnings and arrested Mr. Loicano.

Officer Burmaster testified that Mr. Loicano left his vehicle's window rolled down and his car door unlocked, and had left his iPhone and wallet inside the car in plain view. Officer Burmaster informed Mr. Loicano he was going to "secure" the vehicle and Mr. Loicano objected, stating that it was fine to leave the vehicle unsecured. Officer Burmaster thought that seemed "odd." Nonetheless, Officer Burmaster opened the car door where he observed hypodermic syringes in the driver's door pocket; he "continued looking" and then "noticed" a baggie containing crystal methamphetamine. He collected the contraband and then secured Mr. Loicano's vehicle. Officer Burmaster testified that he decided to secure Mr. Loicano's vehicle to avoid a potential burglary investigation or future complaint.

Following Mr. Loicano's arrest, Officer Burmaster continued to investigate the initial complaint of domestic battery. Mr. Loicano denied he was the aggressor and, after interviewing Mr. Leyser, Officer Burmaster determined that Mr. Loicano was actually the victim in the conflict. Mr. Leyser was then arrested. However, Mr. Loicano remained in police custody due to his possession of a controlled substance.

On cross-examination, Officer Burmaster testified that once Mr. Loicano pulled his vehicle over to the curb, Officer Burmaster used the megaphone in his patrol car to order Mr. Loicano to turn off his vehicle, throw his car keys outside, and extend his arms out of the window. He then ordered Mr. Loicano to step out of the vehicle, secured Mr. Loicano in handcuffs, and placed Mr. Loicano in the backseat of his patrol car. Officer Burmaster stated that, based on the information he received from the initial dispatched complaint and his brief interview with the complainant, he believed he had sufficient cause to arrest Mr. Loicano.

Officer Burmaster admitted that when he told Mr. Loicano that he was going to enter his vehicle to secure it, he had not seen, nor did he know, that Mr. Loicano left his iPhone and wallet inside the vehicle in plain view. Officer Burmaster recalled, using footage taken from his body-worn camera, that when he opened the driver's side door of Mr. Loicano's vehicle and started the ignition to roll up the windows, the vehicle's interior lights were also illuminated. Officer Burmaster testified that he did not know whether NOPD had a policy of locking the doors of unsecured vehicles to prevent future crime- because he could not recall his training- but he considered it "smart policing." He also admitted that he did not call a tow truck; he did not inquire whether Mr. Loicano knew anyone he could call to secure the vehicle for him, and he could not recall confirming that the vehicle belonged to Mr. Loicano. Officer Burmaster also testified that Mr. Loicano complied with all of his orders and did not make any suspicious movements. Officer Burmaster had not viewed any contraband in plain view before he opened Mr. Loicano's vehicle door and started the ignition.

On re-direct, Officer Burmaster testified that at some point, Mr. Loicano explained that his rear window had "an issue," and gave instructions on how to roll it up. He also testified that he discovered the narcotics underneath a pill bottle labeled with Mr. Loicano's name. On re-cross examination, Officer Burmaster admitted that at the time Mr. Loicano explained how to operate the rear window, he had already objected to the officer's entry into his vehicle. Officer Burmaster already expressed to Mr. Loicano that he planned to secure the vehicle despite the objections; and, in fact, had already begun to do so.

BODY CAMERA FOOTAGE

A review of the footage taken from Officer Burmaster's body camera reveals that Mr. Leyser accused Mr. Loicano of stomping his head and causing a laceration to his forehead and stated that Mr. Loicano left the scene in his vehicle. Mr. Leyser enters Officer Burmaster's patrol car and begins the process of making a report and providing his personal information. Officer Burmaster asked Mr. Leyser if a weapon was involved and the victim answered, "no." Shortly thereafter, Mr. Leyser appears to observe Mr. Loicano driving nearby and alerts Officer Burmaster. Officer Burmaster starts his engine and follows Mr. Loicano, although he has to speed up considerably due to the time lapse between being alerted and the time it took to start his vehicle. Mr. Loicano appeared to pull over immediately once Officer Burmaster illuminated his overhead lights.

Officer Burmaster used his megaphone to instruct Mr. Loicano to turn his engine off and throw his keys outside the vehicle, however, it seems that Mr. Loicano first attempted to comply by opening his vehicle door, but was instructed to remain inside of his vehicle. Officer Burmaster then instructed Mr. Loicano to open his vehicle's door from the outside. Mr. Loicano asked several times why he was being arrested, and eventually Officer Burmaster explained he was under arrest for suspicion of committing domestic battery. Mr. Loicano attempted to explain his version of events, stating that Mr. Leyser had confiscated his phone to prevent him from calling the police, while Mr. Leyser simultaneously called the police from his own phone to report the domestic battery. After Mr. Loicano related his story, he asked Officer Burmaster again why he was being arrested and Officer Burmaster replied that Mr. Leyser placed the phone call and reported the incident first. Officer Burmaster added that Mr. Leyser appeared injured and Mr. Loicano had attempted to flee when he spotted the police and then attempted to give chase when pursued. Mr. Loicano explained that he had not fled; he was just driving by, within the speed limit, and had immediately pulled over once he saw the police lights illuminate.

Officer Burmaster told Mr. Loicano he was going to secure his vehicle and Mr. Loicano replied that it was locked and it was fine to leave it there. Officer Burmaster then noted that Mr. Loicano had left his window down, but Mr. Loicano replied that it was fine because he had nothing valuable inside. Officer Burmaster appeared to become very suspicious and asked Mr. Loicano several times what he was attempting to hide, although Mr. Loicano replied, "nothing." Officer Burmaster opened the door to Mr. Loicano's vehicle as wide as he could, and then started the ignition. He appeared to bend down and look inside the compartment at the bottom of the driver's door, although the compartment appeared very deep and the only thing visible in the footage is a piece of paper protruding out of the top. Officer Burmaster then stated, "Crystal meth," and pulled a small bag from the compartment.

Officer Burmaster then retrieved gloves and proceeded to empty the compartment, which contained several receipts, a pill bottle bearing Mr. Loicano's name, and around five or six syringes. Mr. Loicano insisted the drugs belonged to his boyfriend and stated he knew that his boyfriend used crystal meth, but that he did not. At that time, Officer Burmaster told Mr. Loicano he was being arrested for possession of the narcotics. Mr. Loicano again asked Officer Burmaster why he was being arrested for domestic battery instead of his boyfriend, so Officer Burmaster returned to Mr. Leyser's home and interviewed him again. Mr. Leyser ultimately revealed himself as the initial aggressor in the dispute. Officer Burmaster arrested Mr. Leyser for being the aggressor in the domestic battery incident. Officer Burmaster then obtained Mr. Loicano's statement, viewed the scene, retrieved Mr. Loicano's medications, returned to the police station, and performed administrative functions.

PROCEDURAL HISTORY

The State filed a bill of information charging Mr. Loicano with possession of methamphetamine and possession of drug paraphernalia, violations of La. R.S. 40:967(C)(2) and 40:1023, respectively. Mr. Loicano entered a plea of not guilty. Mr. Loicano filed an omnibus motion to, inter alia , suppress evidence and statements, and for a preliminary hearing. The trial court granted Mr. Loicano's motions to suppress evidence and statements, and did not find probable cause. The State noticed its intention to seek a writ and requested a stay. The trial court granted the stay. The State's timely writ application followed.

STANDARD OF REVIEW

"[A]ppellate courts review trial court rulings under a deferential standard with regard to factual and other trial determinations, while legal findings are subject to a de novo standard of review." State v. Wells , 08-2262, p. 4 (La. 7/6/10), 45 So.3d 577, 580.

"The State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence." Wells , 08-2262, p. 5, 45 So.3d at 581. "Trial courts are vested with great discretion when ruling on a motion to suppress." State v. Norals , 10-0293, p. 3 (La. App. 4 Cir. 7/30/10), 44 So.3d 907, 909. "Consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion." Id. The Louisiana Supreme Court noted this Court's reasoning wherein we based the discretionary review on "considering the district court's opportunity to observe the witnesses and weigh the credibility of their testimony." Wells , 08-2262, p. 5, 45 So.3d at 581. "The State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence." Wells , 08-2262, p. 5, 45 So.3d at 581.

TRIAL COURT

The State asserted that the evidence should be admissible pursuant to the inventory exception to the warrant requirement. The State contended that Officer Burmaster was securing the vehicle and property inside, which is the purpose of an inventory search of an impounded vehicle. The State also averred that it was reasonable for Officer Burmaster to enter Mr. Loicano's vehicle without consent and over Mr. Loicano's objections because Officer Burmaster did not want to leave Mr. Loicano's valuables in an unsecured vehicle, especially since Officer Burmaster had commanded Mr. Loicano to roll his car windows down immediately before he was ordered to exit the vehicle. The State also maintained that Mr. Loicano consented to Officer Burmaster's entry into his vehicle when he explained how to roll up the rear window.

In granting Mr. Loicano's motion to suppress the evidence and statements, and finding no probable cause, the trial court stated that this was a close case, and expressed the following:

after reviewing the body cam footage and what's contained on that, finds that the - Mr. Loicano did not give consent to the officers to go into the car, clearly expressed that, and as such the Court grants the motion to suppress evidence, finding no probable cause, granting the motion to suppress evidence and motion to suppress statements.

MOTION TO SUPPRESS

The State maintains that the trial court abused its discretion by granting Mr. Loicano's motion to suppress the statement and evidence, while also finding no probable cause.

"The Fourth Amendment provides in relevant part that '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' It is beyond dispute that a vehicle is an 'effect' as that term is used in the Amendment." United States v. Jones , 565 U.S. 400, 404, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012) (quoting United States v. Chadwick , 433 U.S. 1, 12, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Thus, any governmental intrusion into private property, including a vehicle, for the purpose of obtaining information is considered a "search" under the Fourth Amendment. Jones , 565 U.S. at 404-05, 132 S.Ct. at 949.

"Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests." State v. Francis , 10-1149, pp. 4-5 (La. App. 4 Cir. 2/16/11), 60 So.3d 703, 708 (citing State v. Bell, 09-0574, p. 14 (La. App. 4 Cir. 12/9/09), 28 So.3d 502, 512 ). Warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless the governmental conduct is shielded by one of the few narrow exceptions to the warrant requirement. See State v. Surtain, 09-1835, p. 7 (La. 3/16/10), 31 So.3d 1037, 1043 (citing Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ). The prosecution carries the burden of proving that a warrantless search is compatible with one of these exceptions and is thus reasonable under the Fourth Amendment. See La.C.Cr.P. art. 703 D. This requires that pertinent facts and circumstances be articulated through testimony by law enforcement officials at evidentiary hearings on motions to suppress. See State v. Temple, 02-1895, p. 5 (La. 9/9/03), 854 So.2d 856, 860.

State v. McClendon , 13-1454, pp. 4-5 (La. App. 4 Cir. 1/30/14), 133 So.3d 239, 244-45.

Protective Sweep/Search Incident to Arrest

The State asserts that the trial court abused its discretion in suppressing the evidence because Officer Burmaster had probable cause to believe that Mr. Loicano just committed a battery on his boyfriend and that he was armed with a knife. Therefore, Officer Burmaster was justified in conducting the traffic stop, ordering Mr. Loicano out of his vehicle, handcuffing him, and placing him into the backseat of the patrol car. Therefore, the State contends, Officer Burmaster would have been justified in subsequently conducting a protective sweep of the vehicle, making the discovery of the narcotics inevitable.

However, the State did not argue to the trial court that Mr. Loicano was armed, nor present any facts that would lead the trial court to conclude that Officer Burmaster would have been reasonable in forming the belief that Mr. Loicano was armed, or that a protective weapons sweep of his vehicle was warranted under the circumstances. Nevertheless, we find this assertion lacks merit.

This Court discussed the protective Terry sweep exception in State v. Lockett , 12-1561 p. 11 (La. App. 4 Cir. 7/24/13), 120 So.3d 886, 893, quoting Michigan v. Long , 463 U.S. 1032, 1049-50, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983), quoting Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) :

"[Once a valid Terry stop of the vehicle occurs] the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons."

Mr. Loicano notes, however, that Officer Burmaster never testified that anyone accused Mr. Loicano of being armed with a knife, or that he believed Mr. Loicano was armed with a knife, or that he had probable cause to believe Mr. Loicano had been armed with a knife at any time. The only mention of the word "knife" throughout the entirety of the hearing occurred once during cross-examination, and does not appear to have been made in the context of an express accusation that Mr. Loicano had been armed with a knife. Moreover, as Mr. Loicano asserted the context in which the word "knife" was used in the dispatcher's notes (if, in fact, the word even was contained in the notes) does not appear to be determinable:

Q: When you...spoke with the caller...where did the alleged incident take place?
A: In the apartment, upstairs apartment.
Q: And did he allege that a gun was involved?
A: I don't know. I don't recall that. There was a knife said (sic) in the dispatch notes.
Q: And did he say that to you in person? Did he mention-
A: I don't recall. I didn't review the domestic report.
Q: Okay. But you didn't include it in the report you wrote for this case, [defendant's] case?
A: No.

Moreover, a review of Officer Burmaster's police-worn body camera footage reveals that during his initial interview with Mr. Leyser, he specifically asked if a weapon had been used at any point and Mr. Leyser responded no weapons were involved. Thus, Officer Burmaster did not have probable cause to suspect Mr. Loicano was armed.

Further, the State contends in its reply that Officer Burmaster was justified because Mr. Loicano "was not under arrest at the time Officer Burmaster entered [Mr. Loicano's] vehicle. Rather, he was being detained pending the investigation ...." This assertion is incorrect. Officer Burmaster's bodycam footage clearly shows that Officer Burmaster informed Mr. Loicano of his Miranda Rights and after closing the back passenger door of the patrol car, told Mr. Loicano: "You're under arrest right now pending further investigation into the domestic violence allegations that are made against you." The United States Supreme Court held that "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." Arizona v. Gant , 556 U.S. 332, 351, 129 S.Ct. 1710, 1723-24, 173 L.Ed.2d 485 (2009). As Mr. Loicano was handcuffed, under arrest, and in the backseat of Officer Burmaster's patrol car, there was no way for Mr. Loicano to reach anything in his vehicle. Further, as no weapons were alleged to be used in the domestic battery, there was no reason to believe that the vehicle contained evidence of the offense of arrest.

Inventory exception

The State maintained before the trial court that the evidence should be admissible under the inventory exception to the warrant requirement, because Officer Burmaster was "securing the vehicle and its contents" against potential theft when he entered defendant's vehicle. Mr. Loicano countered that the inventory exception did not apply here, because it was not a true, valid, inventory search. As the Louisiana Supreme Court recognized in State v. Escoto , 09-2581, p. 5 (La. 7/6/10), 41 So.3d 1160, 1163 :

In Louisiana, we have adopted the United States Supreme Court's reasoning on the issue of inventory searches. [ State v.] LaRue, 368 So.2d [1048] at 1050 [La. 1979]. Additionally, in State v. Jewell, this court held, "[a]n essential requirement to a valid inventory search is that the police must have acted in good faith in conducting the inventory, and must not have used the inventory procedure as a subterfuge for a warrantless search." 338 So.2d 633, 638 (La.1976) (quoting Inventory Search of Impounded Vehicles, 48 A.L.R.3d 537, 544 (1973) ). This court examines inventory searches under the totality of the circumstances to determine if a truly valid inventory search has taken place. LaRue , 368 So.2d at 1051. Traditionally, this court has considered the following factors in determining whether a true inventory search has taken place: (1) Whether the vehicle could not have remained safely where it was located; (2) whether the search was conducted in the field; (3) whether a tow truck was called before the search commenced; (4) whether formal impoundment procedures were followed; (5) whether the vehicle operator was asked if he consented to a search, if the car contained any valuables, or if he would consent to a waiver of the protections afforded by an inventory search; (6) whether the operator was given an opportunity to make arrangements for someone to pick up the vehicle for them. State v. Sims, 426 So.2d 148, 153 (La.1983).

In the instant case, although the State contended that the vehicle could have been stolen, therefore it could not have safely remained legally parked on the curb, Mr. Loicano asserted that the vehicle was not impeding traffic, not running, and Officer Burmaster was in possession of the keys, therefore the vehicle would not have accidentally rolled into traffic. The evidence elicited at the hearing also revealed that the search was conducted in the field, exactly where Mr. Loicano parked the vehicle. Officer Burmaster did not call a tow truck or follow formal impoundment procedures. Further, Mr. Loicano expressly refused consent to enter the vehicle, and Officer Burmaster did not know valuables were inside the vehicle when he indicated his intent to enter it. Moreover, Mr. Loicano did not expressly waive the protections afforded by an inventory search when he told Officer Burmaster it was fine to leave his vehicle the way it was and Mr. Loicano was not given an opportunity to make arrangements with someone else to secure his vehicle for him. See State v. Killcrease , 379 So.2d 737, 739 (La. 1980) ("If the defendant could have easily made arrangements for the vehicle other than having it impounded, or if he had been willing to waive his rights against the law enforcement agency for failure to guard against loss of his valuables, a justification for the inventory search would not have existed.")

Therefore, the trial court did not abuse its discretion in finding that the inventory exception was inapplicable in the instant case as an invalid justification for the warrantless entry into Mr. Loicano's vehicle. This conclusion is further supported by Officer Burmaster's admission that he became suspicious that Mr. Loicano was hiding contraband in his vehicle when he refused to consent to Officer Burmaster's warrantless entry. Additionally, although Officer Burmaster testified that he wanted to secure Mr. Loicano's vehicle because the windows were rolled down, Mr. Loicano suggests that that purpose was pretextual, as Officer Burmaster had, himself, caused the vulnerability of Mr. Loicano's vehicle when he commanded Mr. Loicano to roll his windows down just before he was commanded to exit the vehicle and then immediately taken into custody. Hence, but for Officer Burmaster's commands, and Mr. Loicano's submission to his authority, the vehicle would not have been rendered insecure, and Officer Burmaster would not have had a stated cause to enter it.

Community caretaker

The State avers that Officer Burmaster's entry into Mr. Loicano's vehicle to secure it and its contents against potential theft over Mr. Loicano's express objection, should nonetheless be justified under the "community caretaker" exception to the warrant requirement. The State contends that Officer Burmaster was entitled to enter Mr. Loicano's vehicle, start the ignition, and roll up the windows "in order to secure the vehicle and its contents" from potential theft under the "community caretaker" or "public safety" exception to the warrant requirement. The State describes the caretaker function of police officers as a duty "to aid individuals who are in danger of physical harm [and] assist those who cannot care for themselves." Such duties include "delivering emergency messages, giving directions, searching for lost children, assisting stranded motorists, and rendering first-aid." The State further asserts that when police officers are carrying out their duties as community caretakers, "for some purpose not directly tied to the objective of detecting criminal activity," and inadvertently discover evidence of a crime during the "reasonable and good faith" exercise of their community caretaker function, the evidence should be admissible in court.

It is not clear, however, that the "community caretaker" function of the police is a stand-alone exception to the warrant requirement. Instead, the function of police as community caretakers provides the rational basis for several existing exceptions to the warrant requirement, such as the inventory exception discussed above, and to protect the public at large in exigent circumstances. The United States Supreme Court discussed this rationale in South Dakota v. Opperman , 428 U.S. 364, 368-71, 96 S.Ct. 3092, 3097-98, 49 L.Ed.2d 1000 (1976) :

In the interests of public safety and as part of what the Court has called "community caretaking functions," Cady v. Dombrowski, supra , 413 U.S. [433] at 441, 93 S.Ct. [2523] at 2528 [37 L.Ed.2d 706 (1973) ], automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody, United States v. Mitchell , 458 F.2d 960, 961 (CA9 1972) ; the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar , 470 F.2d 176, 178 (CA5 1972) ; and the protection of the police from potential danger, Cooper v. California, supra , 386 U.S. [58], at 61-62, 87 S.Ct. [788] at 790 [17 L.Ed.2d 730 (1967) ]...
These caretaking procedures have almost uniformly been upheld by the state courts, which by virtue of the localized nature of traffic regulation have had considerable occasion to deal with the issue. Applying the Fourth Amendment standard of "reasonableness," the state courts have overwhelmingly concluded that, even if an inventory is characterized as a "search," the intrusion is constitutionally permissible.

Thus, the community caretaking function of the police rationalizes the inventory search exception, and is not a separate exception to the warrant requirement in and of itself, and cannot, therefore, independently validate an otherwise invalid inventory search.

Exigent Circumstances

The State also asserts that exigent circumstances were present such that a police officer's warrantless entry into the vehicle was necessary to prevent the vehicle itself from endangering the public. For example, in State v. Arnold , 11-0626, pp. 1-2 (La. 4/27/11), 60 So.3d 599, 600, n.2, the court recognized "that police officers, particularly in dealing with vehicular traffic, do have safety and welfare duties apart from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." The Arnold court found that after police officers arrested the defendant for a traffic violation, an officer's entry into defendant's vehicle for the purpose of securing it by rolling up the windows and turning off the engine was authorized in the process of performing this "caretaking" function. 11-0626, p. 1, 60 So.3d at 600.

The State also cites to a recent Supreme Court opinion, State v. Perique , 18-0981, (La. 6/28/18), 248 So.3d 317, 318-19, which held that the warrantless search and seizure of a weapon from the defendant's vehicle after placing the defendant under arrest was not unreasonable because there was "an immediate concern for the safety of the officers and the general public." The Court found the circumstances exigent because "[t]he defendant's vehicle obstructed traffic as it was parked near a fuel pump at a gas station located at a busy intersection," and the officer had observed the defendant "engage in furtive movements near the driver's door and seat." Perique , 18-0981, pp. 1-2, 248 So. 3d at 318. Thus, the officer's entry into the vehicle for relocation to an area where it would not obstruct traffic was immediately necessary, and his search under the driver's seat was reasonable as a "protective sweep" as he had cause to suspect defendant had been concealing a weapon in the area he was observed reaching. Id.

Though some of the facts of Arnold and Perique are similar, the cases are distinguishable for several reasons. In both Arnold and Perique , the vehicles were situated in circumstances that appeared so exigent that immediate action by the officer was required. See Kentucky v. King , 563 U.S. 452, 460, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (The presumption of unreasonableness of a warrantless search and seizure may be overcome when " 'the exigencies of the situation' make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.' " (quoting Mincey v. Arizona , 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) ) ). In Arnold , the vehicle was left running with the keys in the ignition and the windows rolled down, such that any member of the public could enter the vehicle and drive it, or the vehicle could have easily rolled into traffic on its own. Arnold , 11-0626, p. 1, 60 So.3d at 600. In Perique , the vehicle was blocking access to a gas pump, and the officer had observed defendant make suspicious movements indicating the possible presence of a weapon. 18-0981, pp. 1-2, 248 So. 3d at 318.

In the case sub judice however, the only exigency the State points to is the fact that the windows of Mr. Loicano's vehicle were rolled down. The additional circumstances requiring immediate action in Arnold , are not present in the instant case. Officer Burmaster was in possession of Mr. Loicano's car keys and the engine was not running. Additionally, Officer Burmaster admitted that the vehicle was not obstructing traffic and had been legally parked on the curb. Therefore, the officer did not need to enter the vehicle to relocate it, as was necessary in Perique . Officer Burmaster did not observe Mr. Loicano make any suspicious or furtive movements that would have led him to suspect that Mr. Loicano had hidden a weapon in the vehicle.

"To justify a warrantless entry, the exigent circumstances must be known to the officers 'at the time of the warrantless entry' and cannot be based on evidence discovered during the search." State v. Warren , 05-2248, p. 10 (La. 2/22/07), 949 So.2d 1215, 1224 (quoting United States v. Rivera , 248 F.3d 677, 680-81 (7th Cir.), cert. denied, 534 U.S. 923, 122 S.Ct. 277, 151 L.Ed.2d 203 (2001) ). Additionally, pursuant to "the 'police-created exigency' doctrine ... police may not rely on the need to prevent destruction of evidence when that exigency was 'created' or 'manufactured' by the conduct of the police." King , 563 U.S. at 461, 131 S.Ct. at 1857.

As Mr. Loicano notes, and as we discussed above, the exigency Officer Burmaster stated he was ameliorating when he entered Mr. Loicano's vehicle only existed due to Mr. Loicano's obedience of Officer Burmaster's command to throw his keys from the vehicle without opening the vehicle door. As such, and due to the lack of exigent circumstances, we do not find that this exception to a warrantless search applies.

DECREE

For the above-mentioned reasons, we do not find that the trial court abused its discretion by granting Mr. Loicano's motion to suppress the evidence and statements and by finding no probable cause. The exceptions for a warrantless search do not apply to the facts and circumstances of this case. According, the writ is granted, but relief is denied.

WRIT GRANTED; RELIEF DENIED

      Mr. Loicano parked his vehicle legally, next to the curb.

      The trial court clarified with all parties that Officer Burmaster conducted the vehicle stop, ordered Mr. Loicano to roll his windows down, then immediately ordered Mr. Loicano out of the vehicle. Once Mr. Loicano exited his vehicle, Officer Burmaster approached, handcuffed, arrested him, and secured him in the back of the patrol car. All parties involved agreed this was the timeline and order of events.

      The State asserted this argument for the first time in its writ application.

      The dispatcher notes were not submitted as evidence.

      Perique was decided after the trial court ruled on Mr. Loicano's motion to suppress.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    Gregory CORMIER v. CITY OF LAFAYETTE, et al.
    17-1164
    Court of Appeal of Louisiana, Third Circuit.
    August 29, 2018
    C. Theodore Alpaugh, III, Claude A. Schlesinger, Guste, Barnett, Schlesinger, Henderson & Alpaugh, L.L.P., 639 Loyola Avenue, Suite 2500, New Orleans, Louisiana 70113-7103, (504) 529-4141, COUNSEL FOR PLAINTIFF/APPELLANT: Gregory Cormier
    Marie Candice Hattan, Attorney at Law, 110 East Kaliste Saloom, Suite 101, Lafayette, Louisiana 70508, (337) 234-0431, COUNSEL FOR DEFENDANT/APPELLEE: Lafayette Municipal Fire & Police Civil Service Board
    Michael P. Corry, Sr., J. Daniel Siefker, Jr., Briney Foret Corry, 413 Travis Street, Suite 200, Post Office Drawer 51367, Lafayette, Louisiana 70505-1367, (337) 237-4070, COUNSEL FOR DEFENDANT/APPELLEE: Lafayette City Parish Consolidated Government/Lafayette Police Department
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

Plaintiff, Gregory Cormier, appeals the judgment of the trial court, upholding the Lafayette Municipal Fire and Police Civil Service Board decision to terminate his employment with the Lafayette Police Department. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 12, 2012, Gregory Cormier, a Lieutenant with the Lafayette Police Department (LPD), was notified that his employment with the LPD was terminated by then Police Chief James Craft, as a result of Internal Affairs investigation AD2012-007. Investigation AD2012-007 involved the removal and dissemination of a confidential police file document. It was determined that Mr. Cormier removed said document from the file, whited out certain information included on the form, and gave the document to Scott Poiencot, a Corporal with the LPD. The confidential document was then given to Olita Magee, an attorney representing Edward Mclean, who was appealing his termination by the LPD. Olita Magee attached the document in question to an appellate brief and it was later learned that the document was taken from a shift level investigative file. The LPD considers the information contained in these files to be confidential.

Cormier appealed his termination to the Lafayette Municipal Fire and Police Civil Service Board. An evidentiary hearing was held on February 17, 2016, to determine Cormier's appeal. After the evidence and testimony was presented, the Board found that Cormier "improperly removed a confidential document from an Internal Affairs file and disseminated it to other parties without any authorization.... in direct violation of Lafayette Consolidated Government PPM: 2161-2, G.O. 201.2, G.O. 204.5 and G.O. 301.9." The Board unanimously upheld the LPD's decision, finding that the LPD "acted in good faith" in terminating Cormier's employment.

Cormier next appealed to the Fifteenth Judicial District Court. He argued that the document was not a protected document because it was on the LPD server. He further argued that it had been introduced as an exhibit in previous Civil Service appeals with no parts redacted. It had also been produced pursuant to a public records request. Therefore, Cormier argued, he should not have been disciplined for producing a protected document. The Fifteenth Judicial District Court found no manifest error in the Board's decision to uphold the termination of Mr. Cormier and affirmed the ruling. Mr. Cormier now appeals the judgment of the Fifteenth Judicial District Court.

LAW AND ANALYSIS

The procedure for appeals by civil service employees to the board is found in La.R.S. 33:2501(A). It states:

Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.

If the employee is aggrieved by the decision of the Board, his recourse is found in La.R.S. 33:2501(E), which states:

(1) Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part that is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled.
(2) The appeal shall be taken by serving the board, within thirty days after entry of its decision, a written notice of the appeal, stating the grounds thereof and demanding that a certified transcript of the record, or written findings of facts, and all papers on file in the office of the board affecting or relating to such decision, be filed with the designated court. The board shall, within ten days, after the filing of the notice of appeal, make, certify, and file the complete transcript with the designated court, and that court shall thereupon proceed to hear and determine the appeal in a summary manner.
(3) This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds and except as provided in Subsection D of this Section.

In Poiencot v. Lafayette Consolidated Government , 16-1009, pp. 5-6 (La.App. 3 Cir. 5/31/17), 222 So.3d 733, 736 (quoting Moore v. Ware , 01-3341, pp.7-8 (La. 2/25/03), 839 So.2d 940, 945-46 ), this court explained the standard of review required by the appellate court, stating:

If made in good faith and statutory cause, a decision of the civil service board cannot be disturbed on judicial review. Smith v. Municipal Fire & Police Civil Service Bd. , 94-625 (La.App. 3 Cir. 11/2/94), 649 So.2d 566 ; McDonald v. City of Shreveport , 655 So.2d 588 (La.App. 2 Cir.1995). Good faith does not occur if the appointing authority acted arbitrarily or capriciously, or as the result of prejudice or political expediency. Martin v. City of St. Martinville , 321 So.2d 532 (La.App. 3 Cir.1975), writ denied , 325 So.2d 273 (La.1976). Arbitrary or capricious means the lack of a rational basis for the action taken. Shields v. City of Shreveport , 579 So.2d 961, 964 (La.1991) ; Bicknell v. United States , 422 F.2d 1055 (5th Cir.1970). The district court should accord deference to a civil service board's factual conclusions and must not overturn them unless they are manifestly erroneous. Shields v. City of Shreveport , 565 So.2d 473, 480 (La.App. 2 Cir.), aff'd, 579 So.2d 961 (La.1991). Likewise, the intermediate appellate court and our review of a civil service board's findings of fact are limited. Shields , 579 So.2d at 964. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. Id. ; City of Kenner v. Wool , 433 So.2d 785, 788 (La.App. 5 Cir.1983).

Mr. Cormier first argues that the document at issue is not confidential and, therefore, he should not have been disciplined for this offense. He contends that there is no information contained on the document identifying any investigation of any officer. In support, Mr. Cormier cites City of Baton Rouge v. Capital City Press , 07-1088, 07-1089 (La.App. 1 Cir. 2/13/09), 7 So.3d 21. In that case, the local newspaper, The Advocate, attempted to retrieve records of investigations of officers who were charged with offenses post-Katrina. The City of Baton Rouge contended that the records were confidential and were not subject to the Public Records Law. The first circuit ruled that the documents were subject to production, with personal information redacted.

Mr. Cormier's reliance on this case is misplaced. The Advocate was not an employee of the police department, and, as such, it was not governed by the department's policies and procedures. As an officer of the LPD, Mr. Cormier was bound by the Lafayette Consolidated Government Policy and Procedures. He was found to be in violation of PPM: 2161-2: Conditions of Employment, which states: "2.7 'Unauthorized removal or use of any official correspondence, record, computer file, e-mail or report from any LCG building, office or file.' " Mr. Cormier was also found to be in violation of Lafayette Police Department General Order 204.5 Departmental Discipline, 3.8 Confidentiality: "All departmental business is to be considered confidential and no employee shall release any information to any non-law enforcement entity without proper authorization. No employee shall make known to anyone a proposed action of the Department or the details of any police action/operation."

In our view, Mr. Cormier is clearly in violation of both of these policies. He removed a document from a file without authorization. PPM 2161-2 prohibits its unauthorized removal, which Mr. Cormier admits that he did. Under this regulation, whether the document is considered confidential is of no moment. Regardless, G.O. 204.5 considers all departmental business to be deemed confidential. Therefore, as it pertains to employees of the Lafayette Police Department, this document is considered to be confidential in accordance with the policies and procedures manual.

Next, Mr. Cormier argues that the notice of the pre-disciplinary hearing did not inform him of the charges against him, nor was he given an explanation of his employer's evidence. As such, he contends that his due process rights were violated. In Cleveland Board of Education v. Loudermill , 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the United State Supreme Court mandated due process for a civil service employee, including notice of the charges against him and an opportunity to present his side of the story.

The evidence in the record indicates that Mr. Cormier signed an internal memorandum informing him that he was the subject of an Internal Affairs Investigation. The allegations of the investigation are listed as:

Internal Investigation (Confidentiality Policy) LPD G.O. 301.9 Information or copies of internal investigations shall not be furnished to anyone without permission from the Chief of Police.
Professional Conduct and Responsibilities LPD G.O. 201.2
Conditions of Employment LCG-PPM 2161-2 (2.7) Unauthorized removal or use of any official correspondence, record, computer file, e-mail, or report from any LCG building, office or file.

This document is dated May 11, 2012, and is signed by Mr. Cormier on May 15, 2012. In addition, on June 20, 2012, Mr. Cormier was interviewed, with his attorney present, as part of the Internal Affairs Investigation. The following questions were utilized during the interview:

1. Are you familiar with LCG-PPM 2161-2 CONDITIONS OF EMPLOYMENT 2.7 which prohibits unauthorized removal or use of any official correspondence, record, computer file, e-mail or report from an LCG building, office or file?
2. Are you aware of LPD G.O. 301.9 INTERNAL INVESTIGATIONS, RESPONSIBILITY OF DEPARTMENT PERSONNEL TO COOPERATE. Section entitled: CONFIDENTIALITY POLICY "A" which states[, "]Information or copies of internal investigations shall be furnished to anyone without permission from the Chief of Police["]?
3. Have you copied Internal Affairs documents or documents related to an administrative or shift-level investigation between May 1, 2011 and May 10, 2012?
4. Since May 1, 2011, have you given Internal Affairs documents or copies of Internal Affairs documents including statements and inter-office memo to someone other than an internal affairs officer, the chief of police or a commanding officer charged with receiving or reviewing said document?
....
7. Did you give Ms. Olita Magee a copy or original SL Notice/Instruction Interoffice Communication document for any reason?
8. Were you involved in any way in M[s]. Magee receiving the SL Notice Interoffice communication document? To include copying, whiting out, redacting or giving the document to someone to do so?

Mr. Cormier was also given the opportunity to be heard at his pre-disciplinary hearing on September 7, 2012, wherein he was represented by counsel. After a recitation of the allegations against him, Mr. Cormier was told that he could make a verbal statement and/or provide the investigator with a written statement. Mr. Cormier chose to make a verbal statement in which he stated, "The only thing I can say [about] all these allegations that you cited [is that] I didn't do [it]. That's about it."

In LaPointe v. Vermilion Parish School Board , 15-432, pp. 8-9 (La. 6/30/15), 173 So.3d 1152, 1158-59, the Louisiana Supreme Court explained the right to due process:

"[T]he central meaning of procedural due process is well settled. Persons whose rights may be affected are entitled to be heard; and in order that they may enjoy that right, they must first be notified." Wilson v. City of New Orleans , 479 So.2d 891, 894 (La.1985) (citations omitted). An equal concomitant to this right is "the right to notice and opportunity to be heard," which must be extended at a meaningful time and in a meaningful manner. Id. (citing Fuentes v. Shevin , 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ; Armstrong v. Manzo , 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) ).
....
"[D]ue process is not a technical concept with a fixed content unrelated to the time, place and circumstances." Wilson , 479 So.2d at 894 (citing Cafeteria Workers v. McElroy , 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) ). Rather, it requires the implementation of flexible rules that may yield to the demands of the particular situation. Id. (citing Morrissey v. Brewer , 408 U.S. [471] at 489, 92 S.Ct. [2593] at 2604 [33 L.Ed.2d 484 (1972) ] ).

Based on the evidence before us, we find that Mr. Cormier was provided sufficient due process and that his rights in this regard were not violated.

Lastly, Mr. Cormier complains that the City of Lafayette and the Lafayette Police Department failed to comply with La.R.S. 40:2531, otherwise known as the Police Officers' Bill of Rights, and, because of this, the disciplinary action is an absolute nullity. Specifically, Mr. Cormier contends that the investigation exceeded the time limits established in the Bill of Rights. At the time of the Internal Affairs Investigation in question, La.R.S. 40:2531 stated, in pertinent part:

B. Whenever a police employee or law enforcement officer is under investigation, the following minimum standards shall apply:
(1) The police employee or law enforcement officer being investigated shall be informed, at the commencement of interrogation, of the nature of the investigation and the identity and authority of the person conducting such investigation, and at the commencement of any interrogation, such officer shall be informed as to the identity of all persons present during such interrogation. The police employee or law enforcement officer shall be allowed to make notes.
....
(7) When a formal and written complaint is made against any police employee or law enforcement officer, the superintendent of state police or the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. However, in each municipality which is subject to a Municipal Fire and Police Civil Service law, the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within which to complete the investigation. The board shall set the matter for hearing and shall provide notice of the hearing to the police employee or law enforcement officer who is under investigation. The police employee or law enforcement officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension. If the board finds that the municipal police department has shown good cause for the granting of an extension of time within which to complete the investigation, the board shall grant an extension of up to sixty days. Nothing contained in this Paragraph shall be construed to prohibit the police employee or law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an additional sixty days. The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity.
C. There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.
....

Mr. Cormier urges this court to utilize April 11, 2012, as the date in which this investigation was initiated. He argues that, on that day, Sergeant Keith Gremillion discovered that the confidential memorandum was attached to the Mclean brief. It was then that Sergeant Gremillion began to search for the source of the document. Based on this argument, the time to complete the investigation ended on June 10, 2012, and, therefore, the request for extension that went before the Board on June 12, 2012, was too late, as the time delays had expired.

A formal investigation was launched on May 11, 2012. It should be noted that Sergeant Gremillion had not ascertained who had removed and disseminated the confidential document on that date. Since no person had been identified, fourteen LPD officers and one LPD civilian employee were investigated based upon their access to the file in question. Mr. Cormier was one of the fifteen employees. This is important because La.R.S. 40:2531(B) states that these minimum standards apply "[w]henever a police employee or law enforcement officer is under investigation." While Sergeant Gremillion may have been looking into the matter on April 11, 2012, and thereafter, no police employee or law enforcement officer was under investigation until May 11, 2012. Even then, fifteen investigations were filed because Sergeant Gremillion had not yet discovered the source of the document.

Further, this same argument was before this court in Uletom Hewitt v. Lafayette City-Parish Consolidated Government , 15-835 (La.App. 3 Cir. 3/2/16), 186 So.3d 339. In that case, Hewitt sought review of the decision of the Board, which affirmed his seven-day suspension. The district court upheld the ruling. Hewitt argued that the decision of the Board must be reversed because the investigation of him was not completed within the time mandated by La.R.S. 40:2531. Hewitt contended that a form entitled "INVESTIGATION OF POSSIBLE MISCONDUCT BY EMPLOYEE" that was filed on February 25, 2011, sounded the beginning of the investigation. This court disagreed and found that this form was actually the formal, written complaint contemplated by La.R.S. 40:2531, after which the chief of police or his authorized representative must initiate the initial investigation. That date was determined to be March 2, 2011, which is the date the formal investigation, signed by Chief Craft, was initiated.

In our case, the form initiating the Internal Affairs Investigation, including allegations, was signed by Major Jackie Alfred as Designee for Chief Jim Craft on May 11, 2012. Mr. Cormier acknowledged receipt of this document by his signature and by dating it May 15, 2012. Therefore, the request for extension that went before the Board on June 12, 2012, was timely. According to La.R.S. 40:2531, the extension must be made within sixty days of the investigation's commencement. The extension granted the LPD an additional sixty days within which to complete the investigation. The pre-disciplinary hearing, which triggered the conclusion of the investigation was held on September 7, 2012, within one hundred twenty days of the initial investigation. We find that the investigation was completed timely.

DECREE

Based on the foregoing, we find no error in the Board's decision to uphold Gregory Cormier's termination. We find that the Internal Affairs Investigation of Gregory Cormier was conducted in a timely manner. We further find that the Lafayette Municipal Fire and Police Civil Service Board acted in good faith and statutory cause in finding that there was sufficient evidence to terminate Greg Cormier's employment with the Lafayette Police Department. All costs of this appeal are assessed to Greg Cormier.

AFFIRMED.

      The Internal Affairs Investigation of Greg Cormier occurred in 2012. Louisiana Revised Statutes 40:2531 was amended in 2014 and 2017.


author: JAMES F. McKAY III, CHIEF JUDGE

text:
    Margaret Gammage KRAMER v. Frederick Christian KRAMER
    NO. 2018-CA-0018
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 29, 2018
    MARGARET "MEG" GAMMAGE KRAMER, 625 Pine Street, # 10, New Orleans, Louisiana 70118, COUNSEL FOR PLAINTIFF/APPELLANT
    EDITH H. MORRIS, BERNNADETTE R. LEE, SUZANNE ECUYRE BAYLE, SHEILA H. WILLIS, MORRIS LEE & BAYLE, L.L.C., 1515 Poydras Street, Suite 1420, New Orleans, Louisiana 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Paula A. Brown )
   JAMES F. McKAY III, CHIEF JUDGE

Margaret Gammage (hereinafter Ms. Kramer) and Frederick Christian Kramer (hereinafter Mr. Kramer) were married on June 10, 2010, and separated on December 20, 2014. Of the marriage, one child was born on June 15, 2012. On April 29, 2015, the parties entered into a consent agreement of joint shared custody of the minor child, wherein during the interim spousal support period Mr. Kramer was to pay 100% of the minor child's expenses inclusive of the minor child's summer camp, pool membership, and daycare/childcare assistance when Ms. Kramer is unavailable due to work. Interim spousal support was for twelve months from May 1, 2015. After twelve months, the minor child's summer camp, tuition and school fees, and all mutually agreed upon extracurricular activities were to be divided with Mr. Kramer responsible for 89% and Ms. Kramer responsible for 11%. The parties also agreed to a 2-2-3 physical custody schedule when Mr. Kramer is in town.

A judgment of divorce was granted on March 7, 2016. On July 29, 2016, Ms. Kramer was awarded permanent spousal support in the monthly amount of $1,743.00 until June 12, 2017.

On May 24, 2017, Ms. Kramer filed a motion to extend final spousal support. Ms. Kramer asserted that she had applied to over thirty prospective employers and was only able to obtain a temporary job as a court reporter. She prayed for an extension of final support until the end of 2017 or until she can find full-time employment. In addition, Ms. Kramer prayed that she be relieved of her obligation to pay any portion of the minor child's educational expenses.

On June 23, 2017, Mr. Kramer filed a rule for contempt and a rule to amend custody schedule. He averred that Ms. Kramer should be held in contempt for her failure to pay her 11% share of the minor child's educational expenses. In addition Mr. Kramer asserted that it was in the best interest of the minor child to modify the physical custody schedule.

On August 17, 2017, Ms. Kramer's motion to extend final spousal support and Mr. Kramer's rules for contempt and to amend custody came for a hearing before the trial court. Following the hearing, the court denied Ms. Kramer's motion to extend final spousal support. The court also denied Mr. Kramer's rule to amend custody schedule. However, Mr. Kramer's rule for contempt was denied in part and granted in part. Mr. Kramer's rule for contempt was granted as to the minor child's school tuition and denied as to extracurricular expenses. Ms. Kramer was cast in judgment with court costs plus $300.00 in attorney's fees. A written judgment was signed on September 25, 2017. It is from this judgment that Ms. Kramer now appeals.

On appeal, Ms. Kramer raises the following assignments of error: 1) the district court erred in denying Ms. Kramer the ability to relocate for the opportunity to make a livable salary, have retirement benefits and have access to health care along with overwhelming family support to help raise the minor child; 2) the district court erred in casting tuition costs upon Ms. Kramer when pursuant to La. R.S. 17:221, "every parent residing within the state of Louisiana, having control or charge of any child from that child's seventh birthday until his eighteenth birthday, shall send such a child to a public or private day school"; 3) the district court erred in adding an end date to the permanent spousal support award; and 4) the district court erred in ruling on a child support modification when a motion was filed, foundation was laid, and facts were presented.

With regards to Ms. Kramer's first assignment of error, this issue was not addressed in the district court's judgment of September 25, 2017. As such, this assignment of error is not properly before this Court and will not be addressed. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Melerine v. O'Conner, 2013-1073 (La.App. 4 Cir. 2/26/14), 135 So.3d 1198.

In her second assignment of error, Ms. Kramer alleges that the trial court erred in casting tuition costs upon her. She is not required to pay such costs because of La. R.S. 17:221. Ms. Kramer's reliance on La. R.S. 17:221 is not relevant. That statute states that a parent or guardian is not legally required to enroll a child in school until the child reaches a certain age. However, that statute is not applicable in the instant case due to the agreement between the parties. Ms. Kramer agreed to pay her percentage of the tuition costs in the stipulated judgment of April 29, 2015. The minor child has attended Newman School since preschool by agreement of the parties.

Because a final judgment ordered Ms. Kramer to pay her percentage of the tuition costs, the district court found Ms. Kramer in contempt of court for her failure to adhere to the judgment of April 29, 2015. Holding a party in constructive contempt of court must be based on a finding that the accused violated an order of the court intentionally, purposely, and without justifiable excuse. State through Department of Children and Family Services, Child Support Enforcement v. Knapp, 2016-0979, p. 13 (La.App. 4 Cir. 4/12/17), 216 So.3d 130, 149 (citation omitted). Ms. Kramer provided no justifiable excuse for not paying her percentage of the tuition costs. As such, we find no error in the district court's finding her in contempt.

In Ms. Kramer's third assignment of error, she alleges that the district court erred in putting an end date on the permanent spousal support award. However, the district court put an end date on the permanent spousal support award in the July 29, 2016 judgment. That judgment is not the subject of this appeal.

Ms. Kramer's fourth and final assignment of error concerns the issue of modification of child support. In the September 25, 2017 judgment, which is the subject of this appeal, the district court did not address the issue of a modification in child support. Therefore, for the same reasons as stated above, this assignment of error is not properly before this Court and will not be addressed.

For the above and foregoing reasons, the district court's judgment of September 25, 2017 is affirmed.

AFFIRMED


author: Judge Edwin A. Lombard

text:
    UPSCALE FASHIONS, INC. d/b/a Upscale Men's Clothing v. UNDERWRITERS AT LLOYD'S LONDON et al.
    NO. 2018-CA-0015
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 29, 2018
    Albert J. Nicaud, Jeffrey M. Siemssen, Will C. Griffin, NICAUD & SUNSERI LAW FIRM, L.L.C., 3000 18th Street, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLEE
    Karla M. Baker, BAKER LAW FIRM LLC, 2632 Athania Parkway, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )
   Judge Edwin A. Lombard

The Appellant, Botsay Insurance Network, Inc. ("Botsay") seeks review of the September 5, 2017 judgment of the district court rendered in favor of Appellee, Upscale Fashions, Inc., d/b/a Upscale Men's Clothing ("Upscale") and awarding Upscale $59,907.96, less an offset amount of $11,421.78, totaling $48,486.18. Additionally, Upscale, in its Answer to Appeal, seeks review of that portion of the district court's judgment offsetting its award of damages. For the reasons that follow, we find that the Answer to Appeal of Upscale has merit. We vacate that portion of the district court's judgment offsetting the award of damages. Furthermore, we affirm the judgment of the district court in all other respects, finding no manifest error.

Facts and Procedural History

Established in 2001, Upscale is a retail clothing company operating out of a leased property in New Orleans. The president and owner of Upscale is Ahmed Sara ("Mr. Sara"). Mr. Sara's son, Qasem Sara ("Qasem"), serves as the treasurer and vice-president of Upscale. Qasem testified that he handled the day-to-day operations of Upscale.

In June 2004, Upscale purchased a property insurance policy, policy number # 65247 ("the Original Policy"), with Underwriters at Lloyd's of London ("Lloyd's") through Botsay. Insurance agent and Botsay employee Darlyn Prendegast handled Upscale's file. The Original Policy included wind and hail coverage. The Original Policy was renewed in June 2005 with the same coverage. However, at Botsay's request, the term of the June 2005 Original Policy was reduced to less than one year, ending on February 11, 2006.

Lloyd's broker, N-Surance Outlets, Inc., faxed a renewal offer to Botsay for Upscale's policy on January 24, 2006, noting the Original Policy "as expiring" on February 11, 2006. It is contested as to whether Botsay communicated to Upscale's officers that the Original Policy was up for renewal prior to February 11, 2006. The Original Policy lapsed on February 11, 2006. It is also contested as to whether Upscale's officers were informed by Botsay's employees that the Original Policy lapsed.

Botsay subsequently secured another property insurance policy with Lloyd's ("the Replacement Policy") for Upscale in May 2006, bearing policy # 66702; however, the Replacement Policy did not include wind and hail coverage. Qasem was contacted by a Botsay employee and informed that a premium for Upscale's property coverage was due. It is contested as to whether Botsay's employees explained to Upscale's officers that: 1) wind and hail coverage were not included in the Replacement Policy; and 2) the Replacement Policy was not a renewal of the Original Policy.

Thereafter, Mr. Sara arrived alone at Botsay's office on or about May 11, 2006, to tender payment for Upscale's property coverage. Mr. Sara's first language is Arabic. He is not an English speaker, nor does he read English. Mr. Sara was asked to sign a facsimile from N-Surance to Botsay underneath a "remarks" section which stated "note wind/hail excluded." Mr. Sara signed the facsimile as requested. Botsay bound the Replacement Policy for Upscale shortly thereafter.

On August 18, 2006, Upscale's leased premises sustained roof and water damage as a result of a windstorm. Upscale promptly notified Botsay of its loss in order to make a claim with Lloyd's. Botsay did not notify Lloyd's of the loss until January 2008, via facsimile of a Property Loss Notice form. Furthermore, Botsay did not inform Upscale that wind and hail coverage was excluded from the Replacement Policy when Upscale notified Botsay of the claim. Instead, Ms. Prendegast encouraged Upscale to seek relief through its landlord and the landlord's insurer. Ultimately, Botsay submitted the Property Loss Form to Lloyds, as stated above, 17 months after the damages were sustained to Upscale's property.

On August 18, 2008, Upscale filed a Petition for Damages against Lloyd's for failing to pay an insurance claim under policy number 66702, the Replacement Policy, for the damages Upscale sustained. Lloyd's was eventually dismissed from the lawsuit on summary judgment.

Upscale twice amended its petition for damages. Initially, it filed an Amended Petition for Damages on September 9, 2008, to add Ming Cheng Realty, Inc., as a defendant. Later, on February 11, 2009, it filed a Second Amended Petition to add Botsay as a defendant. Subsequently, Botsay filed an Exception of Prescription against Upscale, which was denied by the district court on April 8, 2013.

A bench trial was held on May 10, 2017, wherein Mr. Sara, Qasem and insurance agent expert Ronald L. Passons testified on behalf of Upscale. Additionally, Botsay's witnesses were employee Maria Matute Simmons ("Ms. Simmons") and the owner of Botsay, Barbara Botsay ("Ms. Botsay"). After taking the matter under advisement, the district court rendered judgment in favor of Upscale, finding that it established the following by a preponderance of the evidence:

• Botsay agreed to procure insurance for Upscale;
• Botsay failed to use reasonable diligence in attempting to place wind and hail coverage for Upscale; and
• Botsay's actions warranted an assumption by Upscale that it was properly insured.

The district court further determined that Botsay was liable to Upscale for the amount of the loss of $59,907.96, less an off-set amount of $11,421.78. Thus, Upscale was awarded $48,486.18 with interest.

Botsay timely filed the instant appeal. It raises three (3) assignments of error:

1. The district court erred in finding that Upscale established that Botsay was negligent and in awarding damages;
2. The district court erred in concluding that Botsay failed to use reasonable diligence; and
3. The district court erred in finding that this case was not prescribed.

Standard of Review

Appellate courts "may not set aside a trial court's or a jury's finding of fact in the absence of 'manifest error' or unless it is 'clearly wrong.' " Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). The Louisiana Supreme Court has established a two-part test for the reversal of a factfinder's determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Stobart v. State through Dep't of Transp. & Dev ., 617 So.2d 880, 882 (La. 1993). Under a manifest error standard of review, appellate courts do not focus on whether the trier of fact was right or wrong, but on whether the fact-finder's conclusion was a reasonable one. Clay v. Our Lady of Lourdes Regional Medical Center, Inc ., 11-1797, p. 11 (La. 5/8/12), 93 So.3d 536, 543 (citation omitted). Moreover, where there are conflicts in testimony, the Rosell court explained that "reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." 549 So.2d at 844.

Negligence and Reasonable Diligence

We shall combine our discussion of the first two assignments of error as both issues are related to the district court's reliance upon the testimony of Upscale's witnesses in finding Botsay was negligent.

In Botsay's first assignment of error, it asserts that the district court erred in finding that Upscale established that Botsay was negligent and in awarding damages. Botsay asserts that the district court overlooked the fact that Upscale's corporate officers chose not to renew the Original Policy in February 2006. Relying upon the testimony of Ms. Simmons and Ms. Botsay, Botsay contends that Upscale opted not to renew the Original Policy at issue because Upscale's officers were focused on a pending claim from Hurricane Katrina. Botsay contends that it took measures to inform and succeeded in informing Upscale's officers in person that the Original Policy was expiring in February 2006. Ms. Botsay testified that the U.S. mail was unreliable following Hurricane Katrina, and Upscale's officers were difficult to reach. It further asserts that Upscale only sought the Replacement Policy after its Hurricane Katrina claim was settled.

Despite the fact that Upscale claims that Mr. Sara was not fluent enough in English to understand what he signed in May 2006, Botsay maintains that Upscale's corporate officers knew that on May 15, 2006, that a new policy was being bound that excluded wind and hail coverage. In addition to signing the policy quote, Botsay asserts that Mr. Sara signed a commercial insurance application. Botsay portrays Mr. Sara as an experienced businessman having been in business since 2001. Botsay argues that Mr. Sara has been involved in making both operations and insurance coverage decisions for Upscale. Considering that Upscale allegedly allowed its insurance policy to lapse and the case is prescribed, Botsay asserts that the district court erred in awarding damages in this matter.

Additionally, in its second assignment of error, Botsay asserts that the district court erred in concluding that it failed to use reasonable diligence in procuring property coverage for Upscale. Characterizing Upscale's officers as insurance savvy individuals, Botsay maintains that Upscale's officers "knowingly and affirmatively refused to renew the Original Policy in February 2006" when they were asked in person if they wanted to renew the policy. Again, Botsay reiterates that the Saras were more concerned with the resolution of Upscale's pending Katrina claim than renewing the policy at issue. Botsay argues that Upscale's officers were disinterested in renewing the Original Policy because the new premium was more costly.

Botsay asserts that it fulfilled its duty of reasonable diligence to Upscale because Botsay employees informed Upscale's officers in person that its property insurance policy was expiring; yet, Upscale's officers opted to let the policy lapse and failed to pay policy premiums for three months, from February to April 2006. Additionally, it avers that Mr. Sara did not bring an Arabic interpreter to Botsay's office in May 2006, and he regularly conducted business for Upscale. Botsay asserts that it reasonably relied on Mr. Sara's signature when it bound the Replacement Policy. Moreover, Botsay alleges that it relied on Qasem's words and actions that he did not want to renew the Original Policy. Ultimately, Botsay avers that the district court erred in relying upon Upscale's version of facts over its own, claiming that it upheld its duty of reasonable diligence toward Upscale.

Three factors must be established in order for plaintiffs to recover for losses resulting from an insurance agent's failure to procure insurance coverage: (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence to obtain insurance and to notify the client promptly of the absence of coverage; and (3) actions by the agent which warranted the client's assumption that he was insured in the amount of the desired coverage. J & M Pile Driving, LLC v. Chabert Ins. Agency, LLC , 17-0126, p. 4 (La. App. 1 Cir. 10/25/17), 233 So.3d 43, 46 (citing Prest v. Louisiana Citizens Property Ins. Corp ., 12-0513, p. 8 (La. 12/4/12), 125 So.3d 1079, 1085-86 ).

The Louisiana Supreme Court has explained that "[t]he nature of certain professions is such that the fact of employment does not imply a promise of success, but an agreement to employ ordinary skill and care in the exercise of the particular profession." Roger v. Dufrene , 613 So.2d 947, 949 (La. 1993) (citing Phelps v. Donaldson , 243 La. 1118, 150 So.2d 35, 37 (1963) ). The duty imposed upon the insurance agent, upon whose advice a client depends, "is that of 'reasonable diligence' a breach of which duty results in an action in negligence." Id. Thus, a determination as to whether an insurance agent exercised reasonable diligence is central to a district court's review of whether an insurance agent was negligent.

An agent fulfills the duty of "reasonable diligence" when he or she procures the insurance requested. Isidore Newman Sch. v. J. Everett Eaves, Inc ., 09-2161, p. 7 (La. 7/6/10), 42 So.3d 352, 356 (citation omitted). Moreover, the Louisiana Supreme Court has further held that an insurance agent is also responsible for notifying a customer when the agent was unable to procure the desired coverage:

An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance.

Karam v. St. Paul Fire & Marine Ins. Co ., 281 So.2d 728, 730-31 (La. 1973).

The district court was presented with conflicting testimony as to whether Botsay fulfilled its obligations to Upscale. Ms. Simmons testified that Qasem verbally informed her on February 10, 2006, that he did not want to renew the Original Policy because he was focused on receiving payment for Upscale's Hurricane Katrina claim. She further testified, in a 2016 deposition, that Qasem was disinterested in the renewal quote because he was unsure if Upscale would be in business and that Upscale was open at that time. Furthermore, during the examination of Ms. Botsay it was revealed that the N-Surance quote of January 24, 2006, advising that the Original Policy was expiring on February 11, 2006, was not included in the business records subpoenaed from Botsay.

Qasem, however, testified that Mr. Sara went to Botsay's office in May 2006, to pay the renewal premium for the Original Policy. He stated that no one from Botsay called to advise him in either January or February 2006, that the Original Policy was going to expire, nor did he receive a notice in the mail from Botsay. He further explained that he heard from a Botsay employee later in 2006, when he was called to make a premium payment for property insurance coverage. He testified that he sent Mr. Sara to Botsay's office with a check to make the payment. He explained that Mr. Sara does not speak or read English, but does speak Arabic. Qasem testified that he would often serve as his father's interpreter.

Additionally, he testified that he and his father jointly reviewed insurance policies and made decisions. Nevertheless, he and Mr. Sara did not discuss the policy at issue in May 2006. He explained that Upscale's 2004 and 2005 property policies included wind and hail coverage, which were important for Upscale to have.

He explained that in December 2005, Upscale increased its inventory coverage on the Original Policy from $100,000 to $200,000, because the business was still in operation. After reopening following Hurricane Katrina, Upscale's store was filled with merchandise as a result of the demand for clothes in New Orleans post-Hurricane Katrina.

Moreover, Qasem related that he was unaware of a three-month gap in Upscale's property coverage from February 2006 thru April 2006, because he neither received a premium notice in the mail nor was he informed of the gap. He testified that Upscale made a wind claim under its property policy (the Replacement Policy) in August 2006, by reporting the claim to Botsay. He testified that the Botsay representative he spoke with advised that Upscale's landlord would be responsible for any damages because the roof was compromised. After discovering that the landlord was not responsible, Qasem followed up with Botsay to find out the status of the wind claim. He explained that it was always his belief that Upscale had wind and hail coverage. Lastly, he stated that when he submitted photographs and a list of damaged items to Botsay for the August 2006 claim, he was not informed that Upscale did not have wind coverage.

Mr. Sara testified that when he arrived at Botsay's office to renew the Original Policy, he tendered a check and was given a paper to sign, which he did. He further related that no one at Botsay explained what he was signing and no one there spoke Arabic. He testified that he does not understand English and relies upon his children and others to explain or translate for him.

Mr. Passons was accepted by the district court as an insurance agency expert. He explained that it is the duty of an agent, upon receipt of an offer to bind coverage from a broker, to notify the insured in writing of coverages and premiums offered by the broker. Additionally, he testified that it is improper for an insurance agent to notify a company, or officer of a company who is a non-English speaker, that a policy being purchased excluded wind and hail coverage without offering a verbal explanation. He elaborated that in such an instance it is the legal duty of the agent to send a written explanation to the insured.

In his testimony, Mr. Passons opined that Botsay failed to notify Upscale immediately after the August 2006 loss that it did not have wind and hail coverage, rather it advised Upscale's officers to contact its landlord's insurer. Botsay, he testified, did not notify N-Surance of Upscale's loss until January 3, 2008, via facsimile. The record reflects that the January 3, 2008 facsimile from Botsay states that the date of loss for Upscale's claim is August 2006.

Lastly, Mr. Passons further explained that the normal coverage period for a property insurance policy is one year. He noted that both Upscale's 2004 and 2005 property coverage policies covered a one-year period. As previously noted, the term of the 2006 policy, however, was shortened in order to coincide with the term of Upscale's liability policy, with Wellington Specialty Insurance Company, at Botsay's request. He testified that an insured would not expect that a policy renewal is going to occur in a shorter time period.

After considering the testimony in this matter, the district court reasoned that the witnesses for Upscale were more credible. As noted above, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. "Because the fact finder is best aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review..." Jacobs v. Reg'l Transit Auth ., 03-2158, p. 4 (La. App. 4 Cir. 4/14/04), 872 So.2d 571, 574 (citations omitted).

The district court in this matter not only evaluated the demeanor of the witnesses, but also questioned some of the witnesses itself. The testimony adduced at trial formed a reasonable basis for the district court to conclude that:

1) Botsay was obligated to procure property insurance coverage for Upscale that included wind and hail coverage;
2) Botsay failed to use reasonable diligence to notify Upscale's officers that its Original Policy was lapsing sooner than May 2006- leaving Upscale without any property coverage for a three-month period- and to make clear to Upscale's officers that the Replacement Policy Botsay obtained a quote for did not include wind and hail coverage; and
3) Botsay's actions (and/or inactions) warranted the assumption of Upscale's officers that Upscale was insured in the amount of the desired coverage, as evidenced by the actions of Upscale's officers following the August 2006 windstorm.

Considering the district court's reliance upon the testimony of the witnesses' for Upscale and recognizing the great deference given to the district court's factual findings based on credibility determinations, we cannot say that the district court was manifestly erroneous in determining that Botsay failed to exercise reasonable diligence, and therefore, was negligent. For these reasons, we find that these assignments of error are without merit.

Prescription

Relying upon La. Civ. Code art. 3492, Botsay argues that Upscale's case prescribed on May 15, 2007. Article 3492 of the Louisiana Civil Code states:

Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.

Botsay maintains that the May 11, 2006 insurance quote document for the Replacement Policy was signed on May 15, 2006, by Mr. Sara, and this quote did not contain wind and hail coverage, as Upscale asserts it should have. Asserting that Upscale untimely added Botsay as a defendant in February 2009, Botsay avers that it was added as a defendant approximately three years after Upscale was aware that its new property policy did not contain wind and hail coverage. Thus, Botsay asserts that Upscale's Second Amended Petition is prescribed on its face.

In response, Upscale asserts that La Rev. Stat. 9:5606, which applies to claims against insurance agents, such as Botsay, is controlling. La. Rev. Stat. 9:5606, entitled Actions for professional insurance agent liability, states:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

Upscale avers that it timely filed suit against Botsay under the statute's one-year and three-year prescriptive periods.

We review de novo a judgment granting an exception of prescription because it raises a legal question. M.R. Pittman Grp., L.L.C. v. Plaquemines Par. Gov't , 15-0860, p. 10 (La. App. 4 Cir. 12/2/15), 182 So.3d 312, 319. "Statutes governing prescription are strictly construed against prescription in favor of the obligation sought to be extinguished; therefore of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted." Asbestos v. Bordelon, Inc ., 96-0525, p. 85 (La. App. 4 Cir. 10/21/98), 726 So.2d 926, 974 (citing Lima v. Schmidt , 595 So.2d 624 (La.1992) ).

In denying Botsay's exception of prescription at a March 22, 2013 hearing, the district court reasoned that Upscale did not discover sufficient facts that would give rise to actionable negligence until it received Botsay's return from a subpoena duces tecum in January 2009. The district court held that Upscale's claim against Botsay was timely filed, noting that Upscale filed its Second Amended Petition the following month, in February 2009.

The prescriptive periods set forth in La. Rev Stat. 9:5606 are controlling. In the instant matter, the prescriptive period began to run when Upscale discovered or should have discovered that the Original Policy lapsed on February 11, 2006. Although Botsay asserts that Upscale's officers discovered or should have discovered the alleged negligence in May 2006, there is no evidence to suggest that Upscale's officers were aware at that time that Upscale did not have the desired coverage. Indeed, the testimony adduced at trial indicates that the officers of Upscale still believed that the business had wind coverage when its building was damaged in August 2006, and thereafter when they reported their loss to Botsay. Furthermore, there is no evidence to dispute that Upscale knew prior to January 2009, that the Original Policy lapsed and/or that the Replacement Policy did not include coverage for wind and hail.

As the district court noted, Upscale filed its Second Amended Petition for Damages adding Botsay as a defendant on February 11, 2009, the month after receiving the return from Botsay's subpoena duces tecum. Upscale timely filed its amended petition within one year of the date of discovery of that the Original Policy lapsed, and within three years of said date, on February 11, 2009. Thus, we find that this assignment of error is without merit.

Answer to Appeal

In its Answer to Appeal, Upscale asserts that the district court erred in reducing its award of damages by $11,421.78. The Judgment states that the $59,907.96 award of damages was being reduced by an offset amount of $11,421.78. Upscale asserts that the district court erroneously made this reduction based upon trial testimony. Upscale asserts that no exhibits were introduced at trial by Botsay evidencing that it received this amount. Upscale notes that through the questioning and testimony of various witnesses, the amount Upscale allegedly received under the Replacement Policy as a result of its August 2006 claim ranged from approximately $11,000 to $11,421.78, with the latter amount being mentioned during questioning by Botsay's counsel to Mr. Sara. Lastly, Upscale contends that Lloyd's would not tender any monies to Upscale for wind damage under a property policy excluding wind coverage. We agree.

In the matter sub judice, the trial transcript reflects that no exhibits- such as check stubs, bank account statements, or other business records- were introduced by Botsay reflecting that Lloyd's tendered $11,421.78, or any amount to Upscale.

Moreover, the transcript reflects that there was inconsistent testimony introduced at trial as to the amount that Upscale allegedly received for the August 2006 claim. For instance, Ms. Simmons testified that Upscale received "$11,000 and some cents," but later stated that Upscale received more than $10,000. Ms. Botsay testified that Upscale received "$11,000-something."

Under the abuse of discretion standard, "the question is not whether a different award might be more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from that evidence." Bitoun v. Landry , 302 So.2d 278, 279 (La. 1974). In this instance, there is an absence of reasonable support for the district court's reduction of Upscale's award of damages.

Louisiana Code of Civil Procedure Article 2164 states, in pertinent part, "[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal." Therefore, considering the lack of evidence and inconsistent testimony presented as to whether Upscale received any monies under the Replacement Policy, we find that the district court abused its discretion in offsetting Upscale's award of damages. Accordingly, we vacate that portion of the district court's judgment offsetting Upscale's award by $11,421.78.

DECREE

For the foregoing reasons, we find that the Answer to Appeal of Upscale Fashions, Inc., d/b/a Upscale Men's Clothing has merit. Thus, that portion of the judgment of the district court offsetting Upscale's damages by $11,421.78 is vacated. Botsay Insurance Network, Inc., is liable to Upscale for the full amount of its loss, $59, 907.96, with interest from the date of judicial demand. In all other respects, the September 5, 2017 judgment of the district court is affirmed.

JUDGMENT VACATED IN PART AND AFFIRMED

      The designation "as expiring" means that the renewed policy would have the same coverage as the policy that is expiring, according to the deposition testimony of N-Surance representative Gregory Murrey.

      At trial, Botsay employee Maria Matute Simmons testified that Qasem, not Mr. Sara, signed the facsimile with Mr. Sara's name. Qasem, via his testimony, disputes that this occurred.

      Ming Cheng Realty was later dismissed from the lawsuit.

      Mr. Sara testified with the assistance of an Arabic interpreter, Jumanah Hamide. Additionally, Ms. Prendegast passed away prior to the trial being held.

      During her deposition, Ms. Simmons refreshed her recollection as to the events that transpired in 2006, by reviewing notes that she drafted in 2009, after Botsay was served with Upscale's amended petition for damages. Her notes were attached to the deposition as an exhibit. Her notes also indicate that Ms. Prendegast was not at work from January 2006 thru April 2006, due to surgery.

      We further note that trial exhibit list for Botsay includes an exhibit 8 described as "proof of claims paid to plaintiffs 8/06 and Katrina losses." Nevertheless, this exhibit was not introduced at trial. Upscale objected to the Botsay's exhibit list in a post-trial memorandum dated July 12, 2017. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Denoux v. Vessel Mgmt. Servs., Inc ., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. We will not consider this exhibit as it was not introduced and admitted at trial.


author: Judge Rosemary Ledet

text:
    COMMUNITY ASSOCIATES, INC. v. Tommy TAYLOR, Shannon Dave Griffin, Ronnie Heisser and Nadine Heisser
    NO. 2018-CA-0379
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 12, 2018
    John A. E. Davidson, Christopher J. Davidson, DAVIDSON & DAVIDSON, APLC, 2901 Independence Street, Suite 201, Metairie, LA 70006, COUNSEL FOR PLAINTIFF/APPELLANT
    Clayton P. Schnyder, Jr., THE SCHNYDER LAW FIRM, LLC, 410 South Rampart Street, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Rosemary Ledet

This suit arises from a tax sale. The plaintiff, Community Associates, Inc. ("Community"), filed suit to annul the tax sale, naming the following four defendants: Tommy Taylor; Shannon Dave Griffin; Ronnie Heisser; and Nadine Heisser. The Heissers filed a reconventional demand to quiet title. Following a bench trial, the trial court ruled in favor of the Heissers, dismissing Community's petition to annul and granting the Heissers' reconventional demand to quiet title. From that judgment, Community appeals. For the reasons that follow, we remand this case to the trial court for correction of the record.

INCOMPLETE RECORD

When the record was lodged with this court, none of the Heissers' exhibits from the November 30, 2016 trial was included in the record. This court ordered Community to show cause why its appeal should not be remanded to the trial court for correction of the record. Community filed a response in which it represented that the Heissers' exhibits had not been filed into the trial court record; that, nonetheless, Community and the Heissers had agreed to supplement by stipulation the record on appeal with the exhibits; but that the Heissers had failed to provide the exhibits to Community for supplementation. This court thus ordered the Heissers to supplement the record on appeal with the exhibits. In response to our order, the Heissers filed in this court a set of documents; none of the documents, however, is consistent with the exhibits offered by the Heissers at the November 30, 2016 trial.

Without the Heissers' exhibits, we cannot review Community's assignments of error. Accordingly, we remand with instructions. See La. C.C.P. art. 2161 (providing, in pertinent part, that "[a]n appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record").

DECREE

For the foregoing reasons, this case is remanded to the trial court. On remand, the trial court is instructed to order the Heissers to supplement the trial court record by filing, in original form, the exhibits introduced by them at the November 30, 2016 trial. We reserve Community's right, upon completion of the record, to move for a new appeal. We also reserve Community's right to move the district court to tax the costs of this appeal to the Heissers.

REMANDED WITH INSTRUCTIONS

      See La. C.C.P. art. 2132 (providing, in pertinent part, that "[a] record on appeal which ... omits a material part of the trial record[ ] may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court").