author: COOKS, Judge.

text:
    Michael Cal CLARY and Catherine Ann Hixson Clary v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; State Farm Fire and Casualty Company; State Farm General Insurance Company; State Farm Life Insurance Company; State Farm VP Management Corporation; Insurance Placement Service, Inc.; State Farm Bank, F.S.B.; Patrick White; Kimberly Rollins White; Gene Haymon ; and David Haymon
    18-198
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    Michael James Barry, Tiffany Powers, Michael Patrick Kenny, Alston & Bird, LLC, 1201 W. Peachtree Street, Atlanta, Georgia 30309-3424, Counsel for Defendants: State Farm Mutual Automobile Insurance Company; State Farm Fire and Casualty Company; State Farm General Insurance Company; State Farm Life Insurance Company; State Farm VP Management Corporation; Insurance Placement Services, Inc.; State Farm Bank, F.S.B.; Patrick White, and Kimberly Rollins White
    Robert J. David, Jr., Marc D. Moroux, Juneau David, APLC, The Harding Center, 1018 Harding Street, Suite 202, Lafayette, Louisiana 70503, Counsel for Defendant: David Haymon
    George Fagan, Stephanie Villagomez Lemoine, Leake & Andersson LLP, 1100 Poydras Street, Suite 1700, New Orleans, Louisiana 70163, Counsel for Third Party Defendant/Appellant: William Claude Coker, III
    Hunter W. Lundy, Matthew Lundy, Hunter, hunter, Lundy & Soileau, 501 Broad Street, Lake Charles, Louisiana 70601, Counsel for Plaintiffs: Michael Cal Clary and Catherine Ann Hixson Clary
    Mark N. Mallery, Lisa Diane Hanchey, Hal Unger, Jacob C. Credeur, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 701 Poydras Street, Suite 3500, New Orleans, LA 70139, Counsel for Defendants: State Farm Mutual Automobile Insurance Company; State Farm Fire and Casualty Company; State Farm General Insurance Company; State Farm Life Insurance Company; State Farm VP Management Corporation; Insurance Placement Services, Inc.; State Farm Bank, F.S.B.; Patrick White, and Kimberly Rollins White
    Scott J. Scofield, Phillip W. DeVilbiss, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, Louisiana 70601, Counsel for Defendant/Plaintiff in Reconvention/Appellee: Gene Haymon
    Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret, Judges.
   COOKS, Judge.

In this expedited appeal we are asked to review the trial court's ruling denying Trey Coker's Exception of No Cause of Action regarding Gene Haymon's action based on Louisiana's Antitrust Law, La.R.S. 51:122 et seq., and the trial court's ruling denying in part and granting in part an exception of no right of action raised by the trial court.

The denial of exceptions of no cause of action and no right of action are normally not appealable. However, La. R.S. 51:134 and 51:135 provide for an immediate appeal of such an interlocutory judgment related to antitrust claims. See Plaquemine Marine, Inc. v. Mercury Marine, 2003-1036 (La.App. 1st Cir. 7/25/03), 859 So.2d 110, 114, n. 3.

HPC Biologicals, Inc. v. UnitedHealthcare of Louisiana, Inc. , 16-585 p. 6 (La.App. 1 Cir. 5/26/16), 194 So.3d 784, 791-92. Gene Haymon asserts in his Motion to Dismiss Appeal that this appeal should be dismissed because Coker waived his right to an expedited appeal and failed to designate issues on appeal. We referred this motion to the merits and after due consideration the Motion to Dismiss Appeal is denied.

Our review of exceptions of no right of action and no cause of action are de novo, and:

It is well settled that pursuant to La. C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments and other rulings. The appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Memoranda and exhibits not filed in evidence are not part of the record on appeal. The briefs of the parties and the attachments thereto are not part of the record on appeal. Further, this court does not consider exhibits filed in the record which were not filed into evidence . Tranum v. Hebert, 581 So.2d 1023 (La.App. 1st Cir.1991), writ denied, 584 So.2d 1169 (La.1991).

Titlesite, L.C. v. Webb , 36,437 p. 12 (La.App. 2 Cir. 12/11/02), 833 So.2d 1061, 1068-69.

We first address the propriety of the trial court's denial of Coker's Exception of No Cause of Action regarding Gene Haymon's allegations of antitrust violations under Louisiana law. After conducting a de novo review we reverse the trial court and hereby render judgment in favor of Trey Coker granting his Exception of No Cause of Action for the alleged antitrust violations raised by Gene Haymon in his Original Answer and First Amended Answer, Reconventional Demand, Third Party Demand, and Cross Claim.

The basis of Gene Haymon's antitrust claim is that Coker and Clary conspired to defame Gene Haymon in order to restrain the business of his son, David Haymon, as a State Farm Insurance agent. Gene asserts that he "need only allege the existence of an agreement between Mr. Coker and Mr. Clary that was knowingly entered into" and he maintains he has gone even further by alleging that "the conspiracy between Mr. Coker and Mr. Clary injured the competition in the Leesville market by preventing Gene from practicing [as a part-time agent with his son]" (emphasis added). He also alleges as a basis for his antitrust claim "that the conspiracy between Mr. Coker and Mr. Clary prevented him from making money as a State Farm sub-agent " (emphasis added). Additionally, Gene states at paragraph 120 of his "First Amended Answer ...":

Coker's conspiracy with the Clary's and their private investigator(s) to defame Gene and David to increase Coker's State Farm business and 'help' Clary's lawsuit violates La. antitrust laws and has had the effect of reducing competition in the Vernon Parish insurance market. The Coker-Clarys anti-trust violations have caused, and continue to cause, great emotional harm to Gene and damage his reputation. Coker and the Clarys are thus solidarily liable for conspiracy to defame Gene in order to unreasonably restrain David's trade in violation of La. R.S. 54:122 (sic).

In his Third-Party Demand Gene Haymon alleges "State Farm's policy holders have contracts with State Farm, not State Farm's agents." Taking this allegation as truthful, as we must for these purposes, this demonstrates that there can be no antitrust injury to consumers that could result from the alleged conspiracy between Coker and Clary because any insurance contracts entered into by consumers will be with State Farm and not with any agent whose trade is allegedly restrained. Additionally, some three years ago when Gene Haymon sought to dismiss the antitrust claims asserted against him by the Clarys he maintained:

There is no way Plaintiffs can plausibly allege customers cannot choose what insurance products they wish to purchase from whichever insurance company, or that consumers are harmed in any way in their choice and ability to purchase insurance policies from State Farm or any other insurer. Consumers could and can get insurance policies from any number of sources.

Gene Haymon also alleges, in paragraph 108 of his First Amended Answer:

By 2012, State Farm's saturation policy had made it harder for individual agents to generate premiums. State Farm also eliminated many of the financial products agents could sell and reduced the percentage of agents' take on premiums charged on the remaining products. State Farm also greatly increased its premiums to cover for its devastating losses from weather-related events, thereby causing State Farm to price itself out of the market for a large number of budget-minded customers.

Additionally, and even more telling, is Gene Haymon's allegation in paragraph 109 which states:

Additionally, David [Haymon] and Clary both had to overcome competition by State Farm's two other Vernon Parish agents, including third party defendant Trey Coker, as well as agents from surrounding parishes.

Phrased another way, this last paragraph, taken as true, states that David Haymon, Clary and Coker all had to compete for consumers' business with each other and two other State Farm agents in Vernon Parish and an unspecified number of agents in surrounding parishes. Moreover, all of these State Farm Agents were competing against all other insurance companies' agents in the area for the local consumers' business. Thus, the alleged conspiracy to defame David and hurt his and/or Gene's bottom line presents no harm to consumers who are shopping for insurance in a very competitive market. This allegation belies any conceivable harm to competition or to consumers and indeed indicates that the alleged conspiracy did not and could not harm consumers. It directly contradicts the conclusory assertion that the alleged conspiracy "had the effect of reducing competition in the Vernon parish insurance market." The antitrust laws were not enacted for the protection of competitors but were instead enacted to protect competition . See Plaquemine Marine, Inc. v. Mercury Marine , 03-1036 (La.App. 1 Cir. 7/25/03), 859 So.2d 110, Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), and Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). The only real injuries alleged to have resulted from the alleged conspiracy are monetary and emotional damages to Gene Haymon, not to consumers.

Louisiana Revised Statutes 51:122 provides:

A. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal.
B. Whoever violates this Section shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, not more than three years, or both.
C. For purposes of this Title, a parent corporation, limited liability company, partnership, or partnership-in-commendam is not capable of conspiring with any subsidiary that it controls, and each such controlled subsidiary is not capable of conspiring with any other wholly owned subsidiary controlled by the same common parent.
D. For the purposes of this Part only, an officer or employee of a legal entity is not capable of conspiring with the legal entity or with another officer or employee of the legal entity when they are acting on behalf of the entity.

When analyzing an alleged agreement to restrain trade the court must first determine whether "it should be categorized as horizontal or vertical." HPC Biologicals, Inc., 194 So.3d at 793. The trial court at one point in the hearing expressed the thought that Gene Haymon's allegation of antitrust violations "appears to be more horizontal [but] I think there's components that are going to overlap with vertical." Gene Haymon asserts his allegations set forth a horizontal violation. We find the allegations establish neither. A horizontal combination occurs between competitors to restrain trade at the same level of distribution and generally are considered a "per se" violation of the antitrust laws. See Van Hoose v. Gravois , 11-976 (La.App. 1 Cir. 7/7/11), 70 So.3d 1017. A vertical restraint on trade is imposed by persons who are at differing levels of distribution, most commonly by the one who is higher up the chain of distribution. To prove a vertical restraint on trade a plaintiff must prove the alleged restraint violates the "rule of reason." Van Hoose , 70 So.3d at 1022. See Bus. Elecs. Corp. v. Sharp Elecs. Corp. , 485 U.S. 717, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988).

Because our state is a fact pleading state, La.Code Civ.P. art 862, a petition must set forth material facts upon which the alleged cause of action is based and "conclusions of law are not sufficient" to meet the injury requirement in an antitrust case and neither can it be met "by broad allegations of harm to the 'market' as an abstract entity." Plaquemine Marine, 859 So.2d at 118, and cases cited therein. Moreover, "not every business arrangement that restrains trade in some manner is illegal[.]" Id. Every claim made under La.R.S. 51:122"must include an allegation of damage to competition. " Id. (emphasis added). Importantly, the United States Supreme Court has made it clear that "[e]ven an act of pure malice by one business competitor against another does not, without more, state an antitrust claim;

the antitrust laws do not create a federal law of unfair competition or 'purport to afford remedies for all torts committed by or against persons engaged in [ ] commerce." Plaquemine Marine , 859 So.2d at 119, citing Brooke Group Ltd. v. Brown & Williamson Tobacco Group , 509 U.S. 209, 225, 113 S.Ct. 2578, 2589, 125 L.Ed.2d 168 (1993). Of additional and significant importance in assessing Gene Haymon's allegations of antitrust is the well-established jurisprudence which holds "that only in exceptional circumstances can a single brand in a market of competing brands constitute a relevant market for antitrust purposes." HPC Biologicals , 194 So.3d at 794, citing Domed Stadium Hotel, Inc. v. Holiday Inns, Inc. , 732 F.2d 480, 488 (5th Cir. 1984). And "[t]hose circumstances are limited to situations in which consumers are 'locked in' to a specific brand by the nature of the product." Id. ,citing Eastman Kodak Co. v. Image Tech. Servs., Inc. , 504 U.S. 451, 481-82, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) and PSKS, Inc. v. Leegin Creative Leather Prods., Inc. , 615 F.3d 412, 418 (5th Cir. 2010), cert denied 562 U.S. 1217, 131 S.Ct. 1476, 179 L.Ed.2d 301 (2011). Gene Haymon's allegations clearly state that the insurance consumers in Vernon Parish are not locked in to any specific brand of insurance nor are they in any way locked in to dealing with any particular State Farm agent if they desire to contract insurance with State Farm. Gene Haymon's allegations fall far short of articulating any form of antitrust violation under state or federal law and as we have noted herein, even if we were to consider his proposed additional pleadings he still would not meet the test. For the reasons stated we reverse the trial court's ruling and hereby grant Trey Coker's exception of no cause of action to Gene Haymon's claims based on antitrust.

We also find the trial court erred in considering any of the allegations contained in the proposed "First Supplemental and Amending Amended Answer, Reconventional Demand, Third Party Demand and Cross Claim" and we cannot and have not considered it in our de novo review of this matter. On December 29, 2017, Gene Haymon filed a "Motion for Leave to File First Supplemental and Amending Amended Answer, Reconventional Demand, Third Party Demand and Cross Claim." Attached to the motion as an Exhibit was Gene Haymon's proposed "First Supplemental and Amending" pleading. The trial court issued a rule to show cause on January 18, 2018, concerning this Motion for Leave to File setting a hearing date on the motion for February 7, 2018. The court held the hearing on February 7, 2018, and because of the time-consuming nature of the matter continued to hear various motions and exceptions on the next day, February 8, 2018. During the course of the hearing on February 8, 2018, the trial court stated from the bench that it would grant Gene Haymon's Motion for Leave to File his proposed "First Supplemental and Amending Amended" pleading. As the hearing on Coker's exceptions progressed the trial judge, over multiple objections by opposing counsel, considered both the earlier pleading, which had been filed of record in October 2017, and the later proposed "Supplemental Amending Amended ..." pleading which had not been filed in the record. By the date of the hearing the "First Supplemental and Amending Amended Answer, Reconventional Demand, Third Party Demand and Cross Claim" had not been officially and properly filed in the record and had not been served on the adverse parties. Gene Haymon filed his First Amended Answer, Reconventional Demand, Third Party Demand, and Cross Claim by presenting it to the clerk's office for filing, accompanied by the filing fee and costs for service, but by the date of the hearing he had done no such filing of the "First Supplemental and Amending Amended Answer ..." nor had he paid any filing fee or costs for service nor directed the clerk to serve the pleading.

It is settled that a pleading is not "filed in an action" until it has been delivered to the clerk for that purpose ; therefore, a party obliged to file a pleading within a time limitation must insure actual delivery, since it is the time when the clerk receives actual delivery of the pleading that is determinative of whether a pleading has been timely filed. Squatrito v. Barnett, 338 So.2d 975 (La.App. 4th Cir.1976).
....
A certificate of service upon opposing counsel is not considered a timely filing. Squatrito, supra.

Am. Bank & Tr. Co. of Lafayette v. Huval Fin. Servs. , 460 So.2d 91, 93 (La.App. 3 Cir. 1984) (emphasis added).

The proposed "First Supplemental Amending Amended Answer ..." exists in the record only as an exhibit attached to a motion. At the hearing in which the trial court said he granted the motion for leave to file, the exhibit was not introduced as evidence and to date, as pointed out by Mover in brief and at oral argument, has not been officially filed in the record "for the purpose" intended.

Lastly, we find there is no support in Louisiana law for a trial court issuing an advisory opinion or declaratory ruling finding a pleading states a cause of action or right of action when such an exception has not been filed alleging such deficiencies. We therefore reverse the trial court's ruling that denied in part and granted in part an exception of no right of action based upon the unfiled pleading.

The trial court judgment denying Trey Coker's Exception of No Cause of Action is hereby reversed, vacated, and judgment is rendered granting Trey Coker's Exception of No Cause of Action.

All costs of this appeal are assessed against Gene Haymon.

MOTION TO DISMISS APPEAL DENIED. REVERSED; JUDGMENT RENDERED; REMANDED.

      See Vermilion Hosp., Inc. v. Patout , 05-82 (La.App. 3 Cir. 6/8/05), 906 So.2d 688 and cases cited therein.

      For the reasons that will later be discussed in this opinion, we cannot consider Haymon's proposed supplemental and amending petition. However, we note that if we were able to consider the allegations made in the proposed "First Supplemental and Amending Amended Answer, Reconventional Demand, Third Party Demand and Cross Claim" it would not alter our finding herein as the proposed pleading does nothing to cure the deficiencies.

      The reference should be to La. R.S. 51:122.

      After a hearing on Gene Haymon's Motion for Leave to File his First Amended Answer the trial court granted the motion and ordered that the pre-trial order previously decreed be amended to change the deadline to file pleadings in the matter to December 31, 2017. This Order was signed on October 30, 2017. On October 31, 2017, counsel for Gene Haymon sent a copy of the pleading to the clerk of court accompanied by a cover letter along with a fee of $500.00 to cover the cost of filing and service. That pleading was stamped by the clerk of court dated October 31, 2017, as the date filed in the record.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Ronald COLSON and Virginia Colson, et al. v. COLFAX TREATING CO., LLC, et al.
    17-913 17-912
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    Joseph J. Bailey, Eli J. Meaux, Provosty, Sadler, & deLaunay, APC, P. O. Drawer 1791, Alexandria, LA 71309-1791, (318) 445-3631, COUNSEL FOR PLAINTIFFS/APPELLANTS: Virginia Colson, Ronald Colson
    Daniel E. Broussard, Jr., Broussard, Halcomb & Vizzier, P. O. Box 1311, Alexandria, LA 71301, (318) 487-4589, COUNSEL FOR PLAINTIFFS/APPELLANTS: Virginia Colson, Ronald Colson
    Randall B. Keiser, David E. Boraks, Keiser Law Firm, P.L.C., P. O. Box 12358, Alexandria, LA 71315, (318) 443-6168, COUNSEL FOR DEFENDANT/APPELLEE: City of Pineville
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   GREMILLION, Judge.

Plaintiffs/appellants, Ronald and Virginia Colson, appeal summary judgment in favor of the City of Pineville in this suit arising from damage to the Colsons' home in the wake of Hurricane Gustav. The City filed a Motion to Strike the Colsons' reply brief. In response to the City's motion to strike, the Colsons filed a motion for leave to exceed the page limit on reply briefs. The Colsons also filed a motion to supplement the record with documents proffered at the hearing on the motion for summary judgment but were excluded from evidence by the trial court. For the reasons that follow, we grant the City's motion to strike, deny the Colsons' motion to supplement the record, and affirm the trial court.

FACTS AND PROCEDURAL HISTORY

The Colsons own property on Church Street in Pineville, Louisiana. They alleged in their petition that their property was flooded on September 1 and 2, 2008, and that the flood water was contaminated with creosote/pentachlorophenol, TPH diesel, and other contaminates that originated at the Colfax Treating Company's (Colfax) wood treating facility in Pineville, which was allowed by permit to be disposed of through Pineville's waste water system. When Hurricane Gustav inundated Central Louisiana with heavy rains, according to the petition, contaminated waste and storm water overwhelmed Pineville's system and contaminated the Colsons' property. The petition further alleges that the contamination resulted in the Colsons' forcible and unlawful eviction from their home. The Colsons sued both Colfax and the City. The City is alleged to have failed to timely activate pumps designated to evacuate waste and storm water, failed to properly inspect or maintain those pumps prior to the event, and allowed Colfax to improperly dispose of these contaminates above legally-allowed limits.

The Colsons' suit was joined with two other neighbors and consolidated with a similar action filed by yet more neighbors in the Church Street area. The other actions, though, have all been dismissed.

The City filed a motion for summary judgment on October 17, 2016, in which it asserted that it was immune from liability pursuant to the Louisiana Homeland Security and Emergency and Disaster Assistance Act ("the Act"), La.R.S. 29:721 -39. A second motion for summary judgment was filed the same day and asserted that the City was not liable for flooding, as the Red River, Atchafalaya, and Bayou Boeuf Levee District was solely responsible for flood control within the area of its operation, which includes the City of Pineville.

The Colsons filed oppositions to these motions, arguing that the City violated applicable Environmental Protection Agency and Louisiana Department of Environmental Quality statutes, orders, and regulations governing waste water contaminants, as well as requirements that it develop a plan to deal with situations like it faced in Hurricane Gustav. Further, the Colsons argued, the City was empowered by terms of its permit to Colfax to order Colfax to cease releasing waste into its system. In their opposition, the Colsons offered the affidavit of Dr. Nicholas P. Cheremisinoff, Ph.D., a chemical engineer with many years of experience in environmental management and a CD containing several exhibits, which they sought to authenticate through the affidavit of their counsel. They also offered the deposition of Mr. Colson.

The Colsons' exhibits presented in opposition to the City's motion, other than the affidavits and deposition, were contained on a compact disc. The City filed, in its reply memorandum, an objection to all of the Colsons' exhibits except Mr. Colsons' deposition.

The Colsons sought a continuance of the hearing on the City's motions because of outstanding discovery issues. Nonetheless, the motions were heard by the trial court on January 9, 2017. The trial court also heard the City's objections to various exhibits and struck all exhibits besides Dr. Cheremisinoff's affidavit and Mr. Colsons' deposition. The Colsons then made a proffer of those exhibits. The trial court rendered judgment in favor of the Colsons on the issue of the City's immunity under the Act. It ruled in favor of the City on the issue of flooding, rendering judgment as follows (emphasis in original):

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED THAT the City of Pineville's Motion for Summary Judgment based on LSA-R.S. 38:291 et seq. is hereby GRANTED and that all claims against the City of Pineville by Plaintiffs for injuries and damages related to flooding are hereby dismissed with prejudice at Plaintiffs' sole cost;
IT IS FURTHER HEREBY ORDERED, ADJUDGED, AND DECREED THAT all of Plaintiffs' claims for damages resulting from the City of Pineville's sewer system are not dismissed and remain pending before this Court.

The Colsons perfected this appeal of the judgment. They assert that the trial court erred in not continuing the hearing, in striking certain exhibits, and in granting summary judgment on the issue of flooding. The City answered the Colsons' appeal and ask that this court reverse the trial court's denial of its motion for summary judgment regarding applicability of the Act.

The City has also filed a motion to strike the Colsons' reply brief because it exceeds the thirteen-page limit on reply briefs found in Uniform Rules-Courts of Appeal, Rule 2-12.2(D) and Internal Rules-Third Circuit Court of Appeal, Rule 18.

DISCUSSION AND ANALYSIS

Courts of appeal review summary judgments de novo employing the same analysis as does a trial court. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. The mover bears the burden of proof in a motion for summary judgment to prove that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. La.Code Civ.P. arts. 966, 967.

The City's motion to strike the Colsons' reply brief

Uniform Rules-Courts of Appeal, Rule 2-12.2(D) provides that reply briefs on 8 ½"x 14" paper are limited to thirteen pages, exclusive of the tables of contents and authorities. The Colsons' reply brief exceeds the authorized page limit at sixteen pages. This court has discretion to allow a reply brief when in the interest of justice. In the present matter, we do not find that the interests of justice are furthered by allowing this departure from our rules. The City's motion to strike the Colsons' reply brief is granted.

Striking exhibits and the motion to supplement the record

Louisiana Code of Civil Procedure Article 966(A)(4) prescribes the documents that may support or oppose a motion for summary judgment. Those are "pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." Under La.Code Civ.P. art. 966(D)(2), the court may only consider the documents filed in support of or in opposition to the motion, "and shall consider any documents to which no objection is made." Objections must be raised in a timely-filed opposition or reply memorandum. Id.

The contents of the compact disc contain no self-authenticating formal requirements and do not meet the criteria of La.Code Civ.P. art. 966(A)(4). They primarily consist of items obtained from the websites of governmental agencies. Much of this information was contained or summarized in Dr. Cheremisinoff's affidavit, which was considered by the trial court. Accordingly, we affirm the trial court's grant of the City's motion to strike and deny the Colsons' motion to supplement the record on appeal.

Refusal to grant a continuance of the hearing

Louisiana Code of Civil Procedure Article 966(C)(4) provides that the trial court may continue a hearing on a motion for summary judgment "[f]or good cause shown." The determination of whether a trial court should have granted a continuance of a hearing on a motion for summary judgment is reviewed by this court to determine whether the trial court abused its discretion. Advance Prods. & Sys., Inc. v. Simon , 06-609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788, writ denied , 07-26 (La. 3/9/07), 949 So.2d 444.

The Colsons sought a continuance of the hearing on the motion for summary judgment on the grounds that discovery requests had not been answered by the City and they were intent on taking depositions, but needed responses to their written requests first. The trial court held that La.Code Civ.P. art. 966 provides that the parties be given adequate opportunity for discovery. Given the length of time suit had been filed, the trial court opined that adequate opportunity for discovery had been afforded.

A review of the record reveals that the suit was filed on August 31, 2009. The matter was consolidated for trial in 2010. A flurry of activity followed the trial court's denial of an exception of prescription filed by the City in the consolidated matter. Several parties' claims, also in the consolidated matter, were dismissed in 2010. Thereafter, between December 2010 and June 2016, there were two dismissals, a motion to enroll as co-counsel, and a motion to withdraw as counsel. In June 2016, the City filed a motion for leave to amend its answer. In October 2016, this motion for summary judgment was filed. The motion was not heard until January 2017. We can find no abuse of the trial court's discretion in this ruling. This assignment of error lacks merit.

Immunity under the Act

The City argues that the trial court erred in denying its motion for summary judgment under the Act. Immunity under the Act is an affirmative defense that must be specifically pleaded. Rogers v. State, ex rel. Dep't of Pub. Safety and Corr. , 07-1060 (La.App. 3 Cir. 1/30/08), 974 So.2d 919, writ denied , 08-504 (La. 4/25/08), 978 So.2d 367. The burden of proof of an affirmative defense lies with its proponent. Hines v. Garrett , 04-806 (La. 6/25/04), 876 So.2d 764. "If the party moving for summary judgment will bear the burden of persuasion on the subject issue at trial, that party must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial." Id. at 766.

Louisiana Revised Statutes 29:735(A)(1) reads:

Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents' employees or representatives of any of them engaged in any homeland security and emergency preparedness activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity.

" 'Emergency preparedness' means the mitigation of, preparation for, response to, and the recovery from emergencies or disasters. The term 'emergency preparedness' shall be synonymous with 'civil defense', 'emergency management', and other related programs of similar name." La.R.S. 29:723(4). The provisions of the Act are initiated with the issuance of a declaration "by executive order or proclamation of the governor if he finds a disaster or emergency has occurred or the threat thereof is imminent." La.R.S. 29:724(B)(1). As with all statutes that confer immunity from liability, La.R.S. 29:735 is strictly construed. Robertson v. St. John the Baptist Parish , 15-240 (La.App. 5 Cir. 10/14/15), 177 So.3d 785.

In support of its motion, the City annexed a copy of the emergency declaration issued by Governor Bobby Jindal, 51 BJ 2008, which declared a state of emergency throughout the State of Louisiana. The City also annexed thereto the affidavit of Mr. Charlie Moore, who was Superintendent of Public Works for the City at the time the emergency was declared. Mr. Moore attested that the City of Pineville's waste water (sewerage) and storm drainage systems are entirely separate. The City's lift stations were powered by electricity delivered by CLECO. The lift stations lost power during Hurricane Gustav; before and after the loss of power, the lift stations were operating properly.

To prevail in a claim of immunity under the Act, the City must demonstrate that the acts or omissions complained of occurred during the declared emergency. Bordelon v. Gravity Drainage Dist. No. 4 of Ward 3 of Calcasieu Parish , 10-1318 (La.App. 3 Cir. 10/5/11), 74 So.3d 766, writ denied , 11-2438 (La. 1/13/12), 77 So.3d 971. As will be discussed more fully, the issue is not the failure of pumps or loss of power to pumps. There exist genuine issues of material fact in this case regarding alleged actions or omissions that well predated Hurricane Gustav.

Dr. Cheremisinoff attested that he reviewed documents produced by the Louisiana Department of Environmental Quality, the City, and Colfax. He also relied upon the depositions of the Colsons. From prior experience consulting in other litigation and from his review of the records, Dr. Cheremisinoff opined that Colfax has a long history of problems complying with its permit from the City that resulted in a Consent Agreement between the City and Colfax, under which Colfax agreed to install some treatment equipment of its own to bring it into compliance with the permit issued by the City. This Consent Agreement was dated August 4, 2008, less than a month before Gustav's landfall. Dr. Cheremisinoff also outlined the City's obligations under federal and state laws and regulations, including the requirement that it identify events in which overflow can occur and plan accordingly.

Most crucial, though, was Mr. Colsons' testimony that sewerage, and thus these chemicals, was being released from the sewer cleanout adjacent to the Colsons' property before the heavy rains and flooding started. This demonstrates a genuine issue of material fact regarding the applicability of the Act to this matter. The City's assignment of error lacks merit.

The City's responsibility for flood control

The Colsons argue that the trial court erred in granting the City's motion for summary judgment on the issue of whether the City is relieved of liability for flooding. The City argued that the entity responsible for flood control is the Red River, Atchafalaya, and Bayou Boeuf Levee District (the Levee District).

Asserting that another is at fault or bears the legal obligation that forms the basis of a plaintiff's suit is an affirmative defense. La.Code Civ.P. art. 1005. The City bears the burden of proof of this defense.

The Levee District's territorial limits are fixed by La.R.S. 38:291(M). The territory includes the City. La.R.S. 38:291(M)(1)(c). We see no authority in the statutes governing levee districts, however, that relieves other governmental entities within a levee district's territory of liability for the failure of storm mitigation systems not built by the levee district.

In Fryoux v. Tensas Basin Levee District , 12-997 (La.App. 3 Cir. 2/6/13), 2013 WL 440129 (unpublished), this court faced the issue of liability of the Tensas Basin Levee District (TBLD) from flood damage during Hurricane Gustav. The TBLD filed a motion for summary judgment asserting that under the Act it was immune from liability for emergency preparedness activities. The Town of Jonesville filed exceptions asserting that TBLD owned, maintained, and controlled the levee system in Catahoula Parish, including the ring levee gates that, had they operated correctly, according to the plaintiffs' petition, would have prevented their flooding damage. The trial court maintained this exception, and the plaintiffs did not appeal. TBLD's motion for summary judgment was granted, and plaintiffs appealed.

On appeal, we found that a genuine issue of material fact existed regarding which entity was responsible for the flood control structures within the town. We, therefore, reversed summary judgment in favor of TLBD.

It is certainly implicit in this discussion that ownership and control of the flood prevention works determines whether a city or a levee district is potentially liable for its failure. See La.Civ.Code arts. 2317, 2317.1.

The City argues, however, that the Colsons have judicially confessed that they have no damage claims arising from any flooding event. In support of its argument, the City cites La.Civ.Code art. 1853, which reads, "A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. A judicial confession is indivisible, and it may be revoked only on the ground of error of fact." The City argues the Colsons have judicially confessed that their damages were not caused by "flood waters." Indeed, in argument before the trial court, counsel for the Colsons admitted that his clients' damages were not caused by flood water. Arguments of counsel can serve as a judicial confession. Id. at Comment (b).

We see no contradiction between counsel's arguments and the allegations of the petition. The petition sets forth that the condition of the Colsons' home that has prevented and continues to prevent its occupation is the presence of pentachlorophenol and other contaminants, not water. Thus, we see no contradiction between the arguments before the trial court and this court and the contents of the Colsons' petition. "The purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.' " Hines, 876 So.2d at 769 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) ). The Colsons' damages, if substantiated at trial, are asserted in pleadings and in Dr. Cheremisinoff's affidavit to have resulted from chemical contamination and not from flood waters.

Accordingly, we affirm summary judgment on the issue of liability on the City's part for flood damage, but not on the basis of any immunity of the City by virtue of the creation of the levee district.

SUMMARY

The City's motion to strike the Colsons' reply brief is granted. We find no error in the trial court's refusal to grant a continuance of a hearing on a motion for summary judgment filed in a case in which the petition was filed seven years before the motion. Seven years certainly represents an adequate opportunity for discovery in this case. We find no error in the trial court's exclusion of the documents on the CD submitted by the Colsons; the pertinent information was summarized in Dr. Cheremisinoff's deposition.

The trial court properly denied the City's motion for summary judgment on the issue of immunity under the Louisiana Homeland Security and Emergency and Disaster Assistance Act. Genuine issues of material fact exist regarding whether the Act applies to this matter. The trial court properly granted summary judgment on the issue of the City's responsibility for "flood waters," not because the levee district is liable for them, but because the evidence demonstrates that the plaintiffs' damages arise from chemical contamination.

The motion to strike Appellants' reply brief filed by the City of Pineville is granted. The judgment of the trial court is affirmed. All costs of this appeal, in the amount of $1,997.50, are taxed as costs to the City of Pineville.

MOTION TO STRIKE GRANTED. MOTION TO SUPPLEMENT THE RECORD DENIED. JUDGMENT AFFIRMED.

      After this matter was consolidated, pleadings that should have been designated for filing in this matter were actually filed in the record of the consolidated matter, Mack v. Colfax Treating Co., Inc. , 17-912. For purposes of this appeal, we have reviewed both records.


author: JUDGE SANDRA CABRINA JENKINS

text:
    ST. BERNARD PORT, HARBOR & TERMINAL DISTRICT v. VIOLET DOCK PORT, INC., LLC
    St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., L.L.C.
    NO. 2017-CA-0388 NO. 2017-C-0412
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 18, 2018
    Val P. Exnicios, LISKA EXNICIOS & NUNGESSER, 1515 Poydras Street, Suite 1400, New Orleans, LA 70112, Randall A. Smith, SMITH & FAWER, L.L.C., 201 St. Charles Avenue, Suite 3702, New Orleans, LA 70170, Harry T. Lemmon, THE LEMMON LAW FIRM, 650 Poydras Street, Suite 2335, New Orleans, LA 70130, W. Scott Hastings, LOCKE LORD, LLP, 601 Poydras Street, Suite 2660, New Orleans, LA 70139, COUNSEL FOR APPELLANT
    James M. Garner, Peter L. Hilbert, Jr., Joshua S. Force, Ashley G. Coker, SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C., 909 Poydras Street, 28th Floor, New Orleans, LA 70112-1033, COUNSEL FOR APPELLEE/RESPONDENT
    Monique M. Lafontaine, MLaw-Monique Lafontaine, APLC, 2237 N. Hullen Street, Suite 202, Metairie, LA 70001, COUNSEL FOR RELATOR
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods, and Judge Tiffany G. Chase )
   JUDGE SANDRA CABRINA JENKINS

This matter is a discovery dispute arising in an expropriation action. Defendant/appellant Violet Dock Port, Inc., LLC ("Violet Dock") appeals the trial court's May 31, 2016 judgment, which partially granted a Motion to Compel filed by appellee/plaintiff St. Bernard Port, Harbor & Terminal District ("St. Bernard Port"), and ordered the production of communications between Violet Dock and non-parties Joseph P. Ruppel and Chaffe & Associates, Inc. ("Chaffe") (collectively, "Ruppel/Chaffe"). Violet Dock also appeals the trial court's December 27, 2016 judgment granting St. Bernard Port's Motion for Partial New Trial on its Motion to Compel, and denying Ruppel/Chaffe's Motion for New Trial. Violet Dock's appeal was consolidated with an Application for Supervisory Writs filed by Ruppel/Chaffe, which also seeks review of the trial court's May 31, 2016 and December 27, 2016 judgments, and requests attorney's fees and costs. For the reasons that follow, we reverse the trial court's May 31, 2016 and December 27, 2016 judgments, grant the writ application, and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

Since the early 1980s, Violet Dock had owned and operated a 75-acre private industrial port on the Mississippi River in St. Bernard Parish (the "Property"). Until 2009, Mr. Ruppel was a shareholder/member of Violet Dock. At that time, Mr. Ruppel was nearing 90 years old, and he divested himself of his minority interest in Violet Dock.

In December 2010, St. Bernard Port filed a Petition for Expropriation of the Property. Violet Dock challenged the constitutionality of the taking and, in the alternative, the amount that St. Bernard Port deposited as the purported fair market value of the Property.

During the 2013 just compensation trial, St. Bernard Port learned that on September 15, 2009, Mr. Ruppel had sold his minority interest in the Property (approximately 34%) to his child and grandchildren. Several months before, Mr. Ruppel had retained Chaffe, which provided investment banking and consulting services, to value his membership interest in the Property for tax and estate planning purposes. The report valuing Mr. Ruppel's interest in the Property was issued by Chaffe on May 31, 2009 (the "Chaffe Report").

In the middle of the just compensation trial, St. Bernard Port issued subpoenas and subpoenas duces tecum to Mr. Ruppel and Chaffe, who were not parties to the expropriation. St. Bernard Port specifically sought production of the Chaffe Report. Ruppel/Chaffe objected, and filed Motions to Quash, for Protective Order and for Costs, contending that the Chaffe Report was privileged and contained confidential information, and that St. Bernard Port failed to meet its burden of proving both good cause and relevance to justify the production of documents from non-parties. St. Bernard Port responded with a Motion to Compel. The trial court granted the Motion to Compel, denied the Motions to Quash, and ordered Ruppel/Chaffe to produce the Chaffe Report.

Ruppel/Chaffe appealed the trial court's December 11, 2013 judgment denying their Motions to Quash the subpoenas and subpoenas duces tecum . On August 27, 2014, this court reversed the trial court, finding that it had abused its discretion in denying Ruppel/Chaffe's Motions to Quash. St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock, Inc. , 14-0286, p. 9 (La. App. 4 Cir. 8/27/14), 147 So.3d 1266, 1270. Specifically, this court found that the discovery sought by St. Bernard Port was not relevant to the issue of just compensation and that St. Bernard Port had not established good cause. After reversing the trial court's judgment, this court stated:

Because the judgment appealed from is silent as to the issue of costs, we are remanding this matter to the trial court for consideration as to whether costs should be awarded to Mr. Ruppel and Chaffe & Associates in light of our conclusion that the trial court abused its discretion in denying the non-party appellants' motions to quash.

In the trial court, Ruppel/Chaffe filed a Motion for Costs, seeking attorney's fees and costs incurred in quashing the subpoenas, pursuant to La. C.C.P. arts. 1426(B) ("Protective orders"), 1469(4) ("Motion for order compelling discovery"), and 1420(D) ("Signing of discovery requests, responses, or objections"), which authorize an award of "reasonable expenses, ... including attorney's fees." In the Motion for Costs, Ruppel/Chaffe requested more than $376,000.00 in attorney's fees and other expenses incurred by Ruppel/Chaffe through July 31, 2015. In response, St. Bernard Port propounded Interrogatories and Requests for Production of Documents ("Discovery Requests") on Ruppel/Chaffe, seeking: (1) all correspondence between Mr. Ruppel and Violet Dock, including their attorneys, concerning the subpoenas referenced in the Motion for Costs; and (2) all correspondence between Chaffe and Violet Dock, including their attorneys, concerning the subpoenas referenced in the Motion for Costs. Ruppel/Chaffe objected to the Discovery Requests on the grounds that they were vague, overbroad, unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence, and sought documents that were irrelevant and were protected by the attorney-client, common interest, and other related privileges.

Thereafter, Ruppel/Chaffe produced unredacted billing statements from its attorneys documenting the time spent in quashing the subpoenas issued in the expropriation trial. Ruppel/Chaffe and St. Bernard Port also exchanged expert reports regarding the reasonableness of the requested attorney's fees and costs.

On April 8, 2016, St. Bernard Port filed a Motion to Compel, asserting that, in addition to the unredacted attorney invoices, it was entitled to discover all of the underlying documents described in the invoices. St. Bernard Port argued that its requests for the underlying communications were "aimed at determining whether all the costs asserted by Ruppel/Chaffe in their motion [for costs] are related to work regarding those efforts to quash the subpoenas." St. Bernard Port insisted it "[could] not ascertain with certainty whether the charges by Ruppel/Chaffe [were] relevant to the subpoena[s] without the underlying communications."

Ruppel/Chaffe and Violet Dock filed an opposition to the Motion to Compel and a Motion for a Protective Order, arguing that the communications sought by St. Bernard Port were protected by the attorney-client privilege, common-interest privilege, and the work-product doctrine. They also argued that these underlying documents were irrelevant and that the Discovery Requests were unduly burdensome.

After a hearing, the trial court rendered a judgment on May 31, 2016, partially granting the Motion to Compel as follows:

• Ruppel/Chaffe was ordered to produce all communications sent to Violet Dock after the sale of Mr. Ruppel's interest in the Property that specifically pertained to the defense of the subpoenas issued to Ruppel/Chaffe;
• Neither Ruppel/Chaffe nor Violet Dock were required to turn over any communications from Violet Dock to Mr. Ruppel or Chaffe in connection with the issuance of the subpoenas.

On June 7, 2016, St. Bernard Port filed a Motion for Partial New Trial. St. Bernard Port challenged not only the trial court's failure to require production of communications from Violet Dock to Ruppel/Chaffe, but also asked the court to order production of "[a]ll communications between Violet Dock or its lawyers and Ruppel/Chaffe or its lawyers " contained in the billing entries submitted as part of Ruppel/Chaffe's Motion for Costs. St. Bernard Port asserted that these communications were relevant because it was entitled to ensure that the work included in the billing invoices pertained only to Ruppel/Chaffe's efforts to quash the subpoenas issued in the expropriation trial.

On June 10, 2016, Ruppel/Chaffe also filed a Motion for New Trial in which it agreed to withdraw all claims for attorney's fees and costs associated with the communications over which Ruppel/Chaffe and Violet Dock had asserted a privilege. According to Ruppel/Chaffe, this withdrawal would eliminate any concerns that the trial court or St. Bernard Port might have regarding the amount of time spent on the challenged communications, as compared to other items identified in the same time entry. St. Bernard Port opposed the Motion for New Trial, arguing that Ruppel/Chaffe had not produced a complete list of the "withdrawn" communications and that, in any event, such a list could not be generated without St. Bernard Port's review of these communications.

After a hearing, the trial court rendered a judgment on December 27, 2016 granting St. Bernard Port's Motion for Partial New Trial, and denying Ruppel/Chaffe's Motion for New Trial.

Violet Dock filed a Motion for Suspensive Appeal. Ruppel/Chaffe filed an Application for Supervisory Writs. This court consolidated the appeal and the writ application.

DISCUSSION

In its appeal, Violet Dock asserts three assignments of error:

(1) The trial court legally erred in ordering production of privileged communications in its May 31, 2016 judgment, and in expanding its prior judgment by granting St. Bernard Port's Motion for Partial New Trial and denying Ruppel/Chaffe's Motion for New Trial in its December 27, 2016 judgment.
(2) The trial court legally erred in failing to follow established Louisiana law that permits a litigant to shield from discovery privileged documents and communications by stipulating that it will not refer to or use them at trial.
(3) The trial court erred in ordering the production of privileged communications where they were not relevant to or necessary for Ruppel/Chaffe's Motion for Costs, and where neither Ruppel/Chaffe nor Violet Dock waived their privilege.

In its Application for Supervisory Writs, Ruppel/Chaffe re-urges the arguments made by Violet Dock in its appeal, and also raises an additional issue:

Whether a protective order should be issued pursuant to Louisiana Code of Civil Procedure Article 1426(A)(1) to protect [Ruppel/Chaffe] from the continued harassment, oppression, undue burden, and expense of the review, preparation, and production of approximately twenty-five thousand (25,000) pages of communications protected by the attorney-client and work product communications [sic].

Because we find that the trial court erred in denying Ruppel/Chaffe's Motion for Protective Order, and ordering Ruppel/Chaffe to produce all underlying communications referred to in the billing invoices supporting its request for attorney's fees, we pretermit any discussion of the alleged privileged nature of the communications.

Standard of Review

"A trial court has broad discretion in handling discovery matters and an appellate court should not upset such a ruling absent abuse of discretion." St. Bernard Port, 14-0286, p. 5, 147 So.3d at 1268.

Protective Orders

Ruppel/Chaffe contends that it is entitled to a protective order that "discovery not be had" because the discovery sought by St. Bernard Port imposes an undue burden and expense. Ruppel/Chaffe also argues that the discovery sought is unnecessary because the production of the unredacted attorney invoices, the reports of experts regarding the reasonableness of the attorney's fees sought by Ruppel/Chaffe, and the anticipated depositions of fact and expert witnesses are adequate to ensure that the charges on the attorney billing statements relate to efforts to quash the subpoenas.

"The discovery statutes are to be liberally construed to achieve their intended objectives." Stolzle v. Safety & Sys. Assurance Consultants, Inc. , 02-1197, p. 2 (La. 5/24/02), 819 So.2d 287, 289. Thus, a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." La.C.C.P. art. 1422. "There are limitations to this rule, however, when justice requires that a party or other person be protected from annoyance, embarrassment, oppression, or undue burden or expense." Stolzle , 02-1197, p. 2, 819 So.2d at 289. In particular, "[b]efore ordering discovery from a third party, which has invoked its right to be protected from undue hardship, loss, or damage, the trial court must be convinced of the relevancy and necessity of such discovery in achieving its intended objective." Channelside Servs., LLC v. Chrysochoos Group, Inc. , 15-0064, p. 19 (La. App. 4 Cir. 5/13/16), 194 So.3d 751, 762, writ denied , 16-1079 (La. 10/12/16), 208 So.3d 373.

La. C.C.P. art. 1426 governs protective orders, and provides as follows, in pertinent part:

A. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) That the discovery not be had .... (3) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery. (4) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.

According to Ruppel/Chaffe, a search of potentially responsive communications has resulted in more than 25,000 pages that would have to be assembled and prepared for review, and then reviewed by counsel for responsiveness and privilege. Then, Ruppel/Chaffe would have to prepare any responsive communications for production, produce the communications, and then identify privileged documents on a privilege log. See La. C.C.P. art. 1424(C). Once the privilege log is submitted, the trial court would be required to determine which, if any, documents are protected by privileges. As St. Bernard Port concedes in its brief, the trial court also may order an in camera inspection of the requested documents. See Bd. of Supervisors of La. State Univ. v. Boudreaux's Tire & Auto Repair, L.L.C. , 13-0444, pp. 15-16 (La. App. 4 Cir. 3/5/14), 133 So.3d 1262, 1272-73 & n.8 (in dispute over award of attorney's fees, request for in camera review of documents "reasonable and warranted"); Sercovich v. Sercovich , 11-1780, p. 8 (La. App. 4 Cir. 6/13/12), 96 So.3d 600, 604 ; Sires v. Nat'l Serv. Corp. , 560 So.2d 448, 449 (La. App. 4th Cir. 1990) ; Lehmann v. Am. Southern Home Ins. Co. , 615 So.2d 923, 926 (La. App. 1st Cir. 1993) ;

Venable v. Smith , 529 So.2d 888, 888 (La. App. 3d Cir. 1988).

Here, we find that the requirement that Ruppel/Chaffe identify and review tens of thousands of pages of communications referred to in its attorneys' billing invoices, along with the preparation of a privilege log and in camera inspection by the court, is unduly burdensome and wholly unnecessary, given that there are less onerous and less intrusive methods of ensuring that the billing entries relate only to work on quashing subpoenas. See Levy v. Maloney , 95-0333, pp. 2-3 (La. 3/24/95), 652 So.2d 522, 523 (directing that trial court issue a protective order where subpoenas duces tecum were unnecessarily oppressive, and the information requested could be sought through less invasive discovery devices).

And where, as here, the record supports a finding that a discovery request is unduly burdensome and unnecessary, La. C.C.P. art. 1426(A) provides that the trial court may fashion a protective order "[t]hat the discovery may be had only by a method of discovery other than that selected by the party seeking discovery," or "[t]hat certain matters not be inquired into, or that the scope of the discovery be limited to certain matters." Although St. Bernard Port has a legitimate interest in ensuring the reasonableness of the attorney's fees sought by Ruppel/Chaffe by means of discovery, we find that St. Bernard Port's need for this information may be satisfied by a protective order that does not require wholesale production of all underlying communications referred to in the billing statements.

We note that St. Bernard Port and Ruppel/Chaffe have retained experts who have issued reports on the reasonableness of the attorney's fees sought, and who can be deposed prior to the hearing. See Olivier Plantation, L.L.C. v. Parish of St. Bernard , 13-0497, p. 5 (La. App. 4 Cir. 10/30/14), 151 So.3d 965, 968. Furthermore, counsel for Ruppel/Chaffe has advised the trial court and St. Bernard Port that she and the other billing attorneys can testify about the time charged on the billing invoices. See Fuge v. Uiterwyk , 97-1252, p. 5 (La. App. 4 Cir. 3/25/98), 709 So.2d 357, 359-60 (plaintiff's attorney testified about the reasonableness of his fees by "[going] through his billing statements month by month and delineat[ing] what work was done on which issue").

We therefore conclude that the trial court abused its discretion in denying Ruppel/Chaffe's Motion for a Protective Order and granting St. Bernard Port's Motion to Compel and Motion for Partial New Trial. We find that the challenged Discovery Requests are unduly burdensome, expensive, and unnecessary, given that other discovery methods, such as the depositions of experts and billing attorneys, are available to St. Bernard Port to ensure that the work described in the billing invoices pertains only to Ruppel/Chaffe's efforts to quash the subpoenas issued in the expropriation trial. Accordingly, we reverse the trial court's May 31, 2016 and December 27, 2016 judgments, and remand this case to the trial court with the instruction to enter a protective order consistent with this opinion.

Ruppel/Chaffe's Request for Attorney's Fees and Costs

In its writ application, Ruppel/Chaffe seeks attorney's fees and costs incurred in connection with its opposition to St. Bernard Port's Motion to Compel, pursuant to La. C.C.P. arts. 1426(B), 1469(4), and 1420(D). Again, as the judgments are silent on this issue, we remand this matter to the trial court for consideration as to whether attorney's fees and costs should be awarded to Ruppel/Chaffe in light of our conclusion that the trial court abused its discretion.

CONCLUSION

For these reasons, we reverse the trial court's May 31, 2016 and December 27, 2016 judgments. We grant the writ application. We remand this matter with instructions that the trial court enter a protective order consistent with this opinion, and to determine whether Ruppel/Chaffe is entitled to attorney's fees and costs.

JUDGMENTS REVERSED; WRIT GRANTED; REMANDED WITH INSTRUCTIONS

LOVE, J., DISSENTS AND ASSIGNS REASONS

LOBRANO, J., CONCURS IN THE RESULT.

BARTHOLOMEW-WOODS, J., CONCURS IN THE RESULT AND ASSIGNS REASONS

CHASE, J., CONCURS IN THE RESULT

LOVE, J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent. The issue before us is whether the trial court erred in ordering the disclosure of the underlying documents described in billing invoices which Ruppel/Chaffe and Violet Dock allege pertain to efforts to quash the subpoenas. I find the majority's decision to remand for the issuance of a protective order by first deciding whether the discovery request is unduly burdensome ignores the primary issue raised by the parties: the alleged privileged nature of the discovery request. Because I find we must first determine whether a privilege exists before this Court can remand the matter for the issuance of a protective order, I dissent from the majority.

As a general rule, "[p]arties may obtain discovery regarding any matter, not privileged , which is relevant to the subject matter involved in the pending action ...." La. C.C.P. art. 1422 (emphasis added). Thus, I find the threshold inquiry is determination of the scope of the discovery request-whether the information sought by St. Bernard Port is privileged. The parties acknowledge that this is the starting point for analysis as the key arguments in the trial court and in brief to this Court address whether a privilege exists and if so, whether the privilege was waived. Ruppel/Chaffe's undue burden assertion is ancillary to its main argument that St. Bernard Port is not entitled to disclosure because a privilege exists which was not waived. Further, consideration of the chief arguments the parties offer is all the more important where the basis for the trial court's decision is unclear.

If a privilege exists, the next inquiry is whether an exception to the general discovery rule applies, in this case, whether the privilege has been waived. Succession of Smith , 513 So.2d 1138, 1143-44 (La. 1987) ; Boyd v. St. Paul Fire & Marine Ins. Co. , 99-1820, p. 9-10 (La. App. 3 Cir. 12/20/00), 775 So.2d 649, 656. Additionally, I find all competing interests must be weighed in determining whether a protective order should be issued pursuant to La. C.C.P. art. 1426. Therefore, because the parties dispute the nature of the discovery request, whether the information sought is privileged is a necessary consideration in this case. Without determination of the privilege issue, the balancing of competing interests would fail to consider one of the most fundamental interests one can assert-privacy. Consequently, any claim that the discovery request is also unduly burdensome and requiring a protective order may only be considered after determining whether a privilege exists.

I also dissent from the majority's conclusion that the request is unduly burdensome and unnecessary. Though the trial court did not provide written reasons for its ruling, the trial court did express its concerns on the record. It stated that $400,000 in attorney fees allegedly owed for defense of the subpoenas, "shocks the conscience." The trial court explained that the billing statements seem facially disproportionate with what it recalled being only "one small proceeding." Expressing its doubt based on the lack of documentary support the trial court stated, "I'm going to want to know what you did for $400,000."

The majority is correct that St. Bernard Port has a legitimate interest in ensuring the reasonableness of the attorney fees that are sought. However, I disagree with the majority's suggestion that St. Bernard Port seeks "wholesale production of all underlying communications referred to in the billing statements." To the contrary, St. Bernard Port stated at the hearing that it only seeks those documents that are sufficient to show work that is associated with defense of the subpoenas. St. Bernard Port simply argues that the $400,000 invoice submitted to support the motion for costs is unreliable based on patent errors contained therein and the disproportionality of the time devoted to the litigation of the subpoena issue as compared to the rest of the litigation.

Additionally, the argument that compliance would require manual review of approximately 25,000 pages of allegedly private communications is a red herring. Counsel for both Violet Dock and Ruppel/Chaffe conceded at the hearing that they overstated the degree to which the discovery request is unduly burdensome. Counsel for Ruppel/Chaffe admitted to running an electronic search of communications based on names of counsel and staff members and admitted that the results are likely duplicative. Likewise, counsel for Violet Dock reiterated that Ruppel/Chaffe conducted an "over-inclusive broad general search" containing documents that may be responsive to St. Bernard Port's request. Neither party was able to provide an accurate accounting of the number of documents that are actually responsive to the request. Moreover, neither party offered any evidence or explanation for why a more limiting electronic search (ex. date and/or subject matter search) was not feasible.

Under the majority's theory, in order to avoid disclosure, one need only demonstrate that compliance with the discovery request is overly burdensome because the number of documents potentially involved may be voluminous. St. Bernard Port avers that deposing the billing attorneys is not a sufficient means to challenge the accuracy of the invoices in this case. In essence, St. Bernard contends that without documentary support any testimony it might try to elicit is subject to "unchecked editorial control."

Smith v. Kavanaugh, Pierson & Talley , 513 So.2d 1138, 1144 (La. 1987). Similarly, so long as Ruppel/Chaffe and Violet Dock purport a privilege exists, they are likely to assert the same privilege in their deposition testimony. Given Ruppel/Chaffe's admissions and their demonstration that an electronic search is a quick and inexpensive method to discover responsive evidence, I find feasible alternative methods are available which are reasonably likely to produce responsive documentary evidence that will not pose the same burden or expense as the manual review Ruppel/Chaffe suggests it would have to conduct. Therefore, I disagree with the majority that the discovery request is unduly burdensome.

Based on the foregoing reasons and the vast discretion afforded the trial court on discovery matters, I respectfully dissent from the majority.

BARTHOLOMEW-WOODS, J., CONCURS IN THE RESULT AND ASSIGNS REASONS

I concur in the result reached by the majority, reversing the judgments of the district court and remanding this matter with instructions to enter a protective order. However, I am of the opinion that the result is appropriate because La.C.E. art. 506(B)(3) and La.C.C.P. art. 1424 warrant such relief. The former article provides, in relevant part, that:

A client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication, whether oral, written, or otherwise, made for the purpose of facilitating the rendition of professional legal services to the client, as well as the perceptions, observations, and the like, of the mental, emotional, or physical condition of the client in connection with such a communication, when the communication is ... [b]y the client or his lawyer, or a representative of either, to a lawyer, or representative of a lawyer, who represents another party concerning a matter of common interest.

Here, the district court ruled that communications of Joseph Ruppel, his accounting firm, Chaffe & Associates, Inc., and their attorneys with Violet Dock Port and its attorneys were discoverable. These parties and their counsel indeed shared a common interest, that is, the same interest in defeating St. Bernard Port's attempt to discover all the underlying documentation and communications between the parties in defending against the ultimately improper subpoenas. Furthermore, because the attorney-client privilege is sacrosanct, the denigration of it should be done lightly, after much thought and consideration.

Notwithstanding the aforementioned, Louisiana Code of Civil Procedure art. 1424 provides the following, in pertinent part:

A. The court shall not order the production or inspection of any writing, or electronically stored information, obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. Except as otherwise provided in Article 1425(E)(1), the court shall not order the production or inspection of any part of the writing, or electronically stored information, that reflects the mental impressions, conclusions, opinions, or theories of an attorney.
...
C. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

Thus, I find that the underlying documentation and communications sought were indeed generated in anticipation of litigation to defeat the subpoenas; and as such, they qualify as attorney-work product and should be barred from disclosure on that basis.

Furthermore, as noted by counsel for Violet Dock Port, St. Bernard Port's own reply in support of its motion to compel highlighted various portions of the time entries specifying the nature of the work done. To the extent there is any doubt regarding the nature of the work performed, the majority correctly observed that there exist less intrusive means of obtaining clarification, aside from production of all the underlying documentation and communications.

For these reasons, I concur in the result reached by the majority that a protective order should issue. I further agree with the decision to remand for a determination of whether Mr. Ruppel and Chaffe & Associates, Inc., are entitled to attorney's fees and costs.

CHASE, J., CONCURS IN THE RESULT

I concur in the result for the reasons assigned by Judge Bartholomew-Woods.

      In this matter, our court has already decided that "the determination of discovery questions as to one who is not a party to the case is a final appealable judgment." St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc. , 14-0286, p. 1 (La. App. 4 Cir. 8/27/14), 147 So.3d 1266, 1266 n.1. Thus, the proper vehicle for seeking judicial review of these final judgments is an appeal, and not an application for supervisory writs. Douglass v. Alton Ochsner Med. Found. , 96-2825, p.4 (La. 6/13/97), 695 So.2d 953, 956. Because this court consolidated Ruppel/Chaffe's writ application with Violet Dock's appeal, we address both.

      St. Bernard Port also sought to compel Mr. Ruppel, aged 94, to testify at the just compensation trial. Mr. Ruppel died on February 4, 2015, and his succession representative, Paul Simmons, was appointed to serve as legal successor, and was substituted for Mr. Ruppel in this matter.

      Likewise, Violet Dock argues that "the invoices, accompanied by the testimony of [Ruppel/Chaffe's] retained expert (who apparently also was provided the privileged communications) are more than sufficient to support their claims for fees and costs," and that "nothing more was required as a matter of law to substantiate [Ruppel/Chaffe's] fee and cost application."

      According to Black's Law Dictionary, in camera review or inspection is defined as "[a] trial judge's private consideration of evidence." Black's Law Dictionary 828 (9th ed. 2004). The term in camera means : "1. In the judge's private chambers. 2. In a courtroom with all spectators excluded. 3. (Of a judicial action) taken when court is not in session-Also termed (in reference to the opinion of one judge) in chambers. " Id.

      In that I agree with the majority that the discovery request is relevant to the subject matter of the motion for costs, the focus of this dissent is the privilege issue.

      See Plaquemines Parish Com'n Council v. Delta Development Co., Inc. , 472 So.2d 560 (La. 1985) (applying a balancing approach to competing interests in determining whether to grant a protective order); also Prine v. Bailey ¸42, 282 (La. App. 2 Cir. 8/15/07), 964 So.2d 435 (balancing of competing interests to determine that certain medical records were discoverable).


author: Judge Edwin A. Lombard

text:
    STATE of Louisiana IN the INTEREST OF W.V.
    NO. 2018-CA-0001
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 18, 2018
    Leon Cannizzaro, District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA
    Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 220, Madisonville, LA 70447, COUNSEL FOR APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown )
   Judge Edwin A. Lombard

The juvenile, W.V., appeals his adjudication as a delinquent for one count of simple battery in violation of La. Rev. Stat. 14:25. After review of the record in light of the applicable law and arguments of the parties, we affirm W.V.'s adjudication. However, we vacate the disposition as well as the $55 court costs and the $150 probation fee imposed. Lastly, we remand this matter to the juvenile court to conduct a disposition hearing in accordance with La. Ch.C. art. 892.

Facts and Procedural History

W.V. was arrested on March 24, 2017, in New Orleans as a result of his mother, L.V., calling the New Orleans Police Department to report that W.V. choked her and assaulted one of his siblings. At the adjudication hearing, L.V. gave varying accounts of what transpired.

Initially, L.V. testified that on March 24, 2017, W.V. slapped his younger brother and slapped his younger sister on the arm. Later, she clarified that W.V. had slapped his younger brother on another day, but had only slapped his sister during the incident at issue. L.V. related that she did not approve of W.V. hitting his younger siblings, which she called to his attention. While chastising him, L.V. testified that she grabbed W.V. to punish him. In response, W.V. raised his hands and pushed against her. She related that W.V. grabbed her by the chest, but did not choke or strike her.

L.V. later testified that after W.V. slapped his nine-year-old sister, L.V. questioned him about his behavior. She then attempted to grab and hit him just before she fell on a chair. She explained that she grabbed W.V. very hard as she fell and that, in response, he put his hands on her neck. She further testified that she did not give her son permission to put his hands around her neck. She pushed him away before he put his hands around her neck. Later, she testified that he put his hands on her first before pushing him away.

Offering yet another version of the incident, she testified that after W.V. slapped his sister, she grabbed W.V., but started to fall backwards on a chair. She explained that as she fell back, W.V. put his hand up and she pushed him away.

In a final version of the incident, L.V. recounted that she witnessed W.V. slap his younger sister on the arm and remarked to him that she had previously warned him that she was tired of him slapping his siblings. She explained that she started to fall back on a chair and grabbed W.V. as she fell. She explained that when she grabbed him and started to fall, he then put his hands on her neck. She testified that she responded by pushing him away.

She explained that W.V. put his hands on her neck because he was bothered that she had grabbed him. According to L.V., W.V. did not squeeze her neck. She testified that she pushed W.V. away from her because she did not want him to put his hand on her throat. She testified that her daughter was not injured and that no one sustained any injuries or went to the hospital. She explained that she called the police because she did not want to hurt or hit W.V. She also testified that she called the police because of the behavior W.V. was displaying. She further testified that she informed the police that W.V. choked her. She testified that she was afraid of what she was going to do to him because of the way he reacted towards his sister. Lastly, she testified that everything she reported to the responding officer that night was accurate. She also explained that she did not want to be in court for the hearing to "persecute" her son, W.V.

Officer Kimberly Ginder ("Off. Ginder") testified that on March 24, 2017, she responded to a call at L.V.'s residence on St. Andrew Street in New Orleans to take a report regarding a domestic situation involving W.V., who was the perpetrator. She described L.V. as a victim. She testified that there was a language barrier and that one of L.V.'s younger children acted as an interpreter. Off. Ginder further testified that she learned, through interpretation by L.V.'s younger son, that W.V. had put his hand around L.V.'s neck. She testified that L.V. explained what happened and implied it with her hand motions. Off. Ginder related that she wrote a report detailing what occurred, including that L.V. had been strangled by W.V., who also slapped one of the siblings. She explained that W.V. was arrested at the scene. She related that L.V. did not object to his arrest and remained calm during his arrest.

Following his arrest, W.V. was charged by delinquency petition with two counts of simple battery. The matter initially was placed on diversion, but the charges were returned to the docket on September 5, 2017. On September 26, 2017, W.V. denied the offenses charged in the petition.

An adjudication hearing was held before the juvenile court on November 28, 2017. At the conclusion of the hearing, the court found W.V. delinquent for count one, simple battery against L.V., only. The court placed him with the Office of Juvenile Justice for a period of six months; however, the execution of the sentence was suspended. Lastly, W.V. was placed on active probation for six months. The judge further imposed court costs in the amount of $55 and a probation supervision fee in the amount of $150. The juvenile court signed a judgment on the same date as the hearing.

This timely appeal followed. W.V. raises four (4) assignments of error on appeal:

1. the juvenile court erred in rendering a disposition judgment that does not agree with the transcript;
2. the juvenile court erred in finding that the evidence was sufficient to support the delinquency adjudication and to establish justification;
3. the juvenile court erred in imposing a disposition without obtaining a waiver of a disposition hearing; and
4. the juvenile court erred in imposing court costs upon the mother of an indigent defendant without any inquiry into her ability to pay.

Standard of Review

In State in Interest of A.J ., we explained that we apply a clearly wrong or manifest error standard of review in determining whether the State has proved a juvenile a delinquent of a charged offense beyond a reasonable doubt:

In juvenile proceedings, the State must prove the child a delinquent beyond a reasonable doubt. La. Ch. C. art. 883. "The standard for the State's burden of proof in a juvenile delinquency proceeding is "no less strenuous than the standard of proof required in a criminal proceeding against an adult.' " State in the Interest of R.L. , 11-1721, p. 3 (La.App. 4 Cir. 5/30/12), 95 So.3d 1147, 1150 (citing State in the Interest of A.G. , 630 So.2d 909, 910 (La.App. 4 Cir. 12/30/93) ).
"While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature." State in the Interest of D.R ., 10-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930. Consequently, the reviewing court must review both law and facts when reviewing juvenile adjudications. La. Const. art. V, § 10 (B). "[A] factual finding made by a trial court in a juvenile delinquency adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong." State in the Interest of R.L ., 11-1721, p. 3-4, 95 So.3d at 1150. See also State in the Interest of Batiste , 367 So.2d 784 (La.1979).

State in Interest of A.J ., 14-0595, p. 4 (La.App. 4 Cir. 10/1/14), 151 So.3d 659, 664. In light of the foregoing, we will apply the clearly wrong or manifest error standard in the matter sub judice .

Discrepancy between the Judgment and the Hearing Transcript

W.V. asserts that there is a discrepancy between the sentencing transcript and the November 28, 2017 judgment. In the sentencing transcript, the juvenile court determined that W.V. was not guilty of the second count of simply battery against his sibling G.V., but adjudicated W.V. a delinquent as to count one against his mother. Nevertheless, the judgment states that W.V. was adjudicated a delinquent as to count two. "Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails." State v. Caliste , 12-1548, p. 2 (La.App. 4 Cir. 6/14/13), 131 So.3d 902, 904 (citing State v. Lynch , 441 So.2d 732, 734 (La.1983) ). Thus, we find that the transcript is controlling in this matter and that W.V. was adjudicated as a delinquent only as to count one.

Adjudication of Delinquency

W.V. asserts that his adjudication of delinquency for simple battery should be set aside because he was defending himself from L.V.'s attempt to batter him. He avers that he was not trying to batter his mother. The State charged W.V. with simple battery of his mother, L.V., under La. Rev. Stat. 14:35. W.V. asserts that this battery, however, was justifiable pursuant to La. Rev. Stat. 14:19 (A)(1)(a) which states in pertinent part:

A. (1) The use of force or violence upon the person of another is justifiable under either of the following circumstances:
(a) When committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense....

In State v.Fluker, 618 So.2d 459,462 (La.App. 4 Cir. 1993), W.V. notes that this Court held that "[i]n a non-homicide situation, the defense of justification requires a dual inquiry, namely: an objective inquiry into whether the force used was reasonable under the circumstances; and, a subjective inquiry into whether the force was apparently necessary." This Circuit, he avers, has determined that the defense of justification is an affirmative defense which must be established by a preponderance of the evidence. State v. Wischer, 04-0325, p. 8 (La.App. 4 Cir. 9/22/04), 885 So.2d 602, 606-07 (quoting State v. Cheatwood, 458 So.2d 907, 910 (La. 1984) ).

He avers that in State ex rel. R.H., 11-1297 (La.App. 4 Cir. 4/4/12), 89 So.3d 390, this Court recognized that juveniles have the right to defend themselves against the infliction of corporal punishment by a parent or guardian. In R.H., supra , he avers that the defendant grabbed the wrists of his mother to prevent her from continuing to batter him. This Court reversed the defendant's adjudication for assault finding that the juvenile had acted in self-defense.

In the instant matter, we find that the juvenile court found numerous discrepancies within the testimony of L.V. as well as her in-court demonstrations as to how the incident occurred. Moreover, as previously stated, L.V. testified that she did not want to be in court testifying against her son. The trial transcript reflects that the juvenile court listened as L.V. gave differing accounts of the March 24, 2017 incident. Nevertheless, all versions were consistent in that she testified that W.V. put his hands on her neck. Off. Ginder testified that L.V. reported that she had been strangled. Furthermore, L.V. explained that everything that she told the police on the night of the incident was true.

The testimony adduced at the hearing was sufficient to establish that W.V. intentionally used force against L.V. without her consent. Thus, we find that, when viewing the evidence in the light most favorable to the State, the State met its burden of proof under La. Rev. Stat. 14:35, to establish that W.V. committed a simple battery. Although W.V. argues that he was justified in using force against his mother to defend himself, the juvenile court had a reasonable basis to conclude that he was the aggressor in the incident, considering that Off. Ginder's testimony and a portion of L.V.'s testimony coincided. Thus, in light of the applicable law and facts, we find that the juvenile court did not err in adjudicating W.V. a delinquent and in finding that he did not establish by a preponderance of the evidence that he acted in self-defense. This assignment of error is without merit.

Waiver of Disposition Hearing and Imposition of Costs

Regarding the remaining assignments of error, the State concedes that the juvenile court erred in: 1) imposing a disposition upon W.V. when he did not waive his right to a disposition hearing, and 2) awarding fees in excess of the $50 statutory limit of La. Rev. Stat. 13:1595.2.

A juvenile court's failure to conduct a disposition hearing is an error patent. State in Interest of W.B ., 16-0642, p. 4 (La.App. 4 Cir. 12/7/16), 206 So.3d 974, 978. In W.B. , we explained that a juvenile court must conduct a disposition hearing unless the juvenile waives his or her right to the same:

This court has held that "[t]he purpose of a disposition hearing is to allow the court to hear evidence which will aid it in determining whether the juvenile is in need of treatment or rehabilitation." State in Interest of T.E ., 11-1172, p. 2 (La.App. 4 Cir. 9/19/12), 100 So.3d 963, 964 (citing State ex rel. K.H ., 98-632 (La.App. 5 Cir. 12/16/98), 725 So.2d 583 ). "Absent a waiver by the juvenile, the court must conduct a hearing prior to entering a judgment of disposition." Id. (citing State ex rel. K.G. , 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716 ; State in Interest of O.R ., 96-890, p. 6 (La.App. 5 Cir. 2/25/97), 690 So.2d 200, 202 ). Counsel's silence and failure to object does not amount to a waiver of a juvenile's right to a disposition hearing or his right to present evidence. State in Interest of O.R ., 96-890 (La.App. 5 Cir. 2/25/97), 690 So.2d 200 ; and K.G ., 34,535 at p. 15, 778 So.2d at 726 ; see also State in Interest of T.H ., 14-179 (La.App. 3 Cir. 6/4/14, 18), 140 So.3d 911, 923 (finding that "there was no objection or waiver of the objection, and there was no waiver of the disposition hearing" by the juvenile; thus the matter was remanded).

Id. , 16-0642, p. 5, 206 So.3d at 978-79.

The hearing transcript evidences that W.V. did not waive his right to a disposition hearing and that counsel for W.V. raised this issue before the court:

MS. FELIX: Wait, Judge, I didn't waive delays for disposition.
THE COURT: Then maybe you have grounds for an appeal.
MS. FELIX: Well, I will have grounds, Judge. I don't-
THE COURT: There you go. We will all learn from this. This will be a lesson for everybody to learn from.

Considering that the juvenile court sentenced W.V. when he had not waived his right to a disposition hearing, we vacate the disposition imposed on W.V. and remand this matter to the juvenile court to conduct a disposition hearing as mandated by La. Ch.C. art. 892.

Moreover, the juvenile court ordered that L.V., as W.V.'s parent, pay court costs of $55 as well as an additional $150 as a "special condition of probation fee." Statutorily, La. Rev. Stat. 13:1595.2(A) limits the amount court costs in juvenile matters to $50.00. The juvenile court's assessment exceeds the statutory limit by $5.00. See State in Interest of A.J ., 14-0595, p. 15 (La.App. 4 Cir. 10/1/14), 151 So.3d 659, 670. Additionally, the $150 fee L.V. was ordered to pay was associated with the juvenile court's imposition of a probation disposition upon W.V. See Id. We explained above that the sentence at issue was impermissibly imposed as W.V. did not waive his right to a disposition hearing; thus, this fee should not have been imposed. In light of the juvenile court's assessment of a fee in excess of the statutory amount and its failure to hold a disposition hearing, we vacate the $55 court costs as well as the $150 special condition of probation fee and remand this matter to the juvenile court to impose a disposition in accordance with law.

DECREE

For the foregoing reasons, we affirm the adjudication of W.V. as a delinquent and vacate his disposition. Furthermore, we vacate the court costs of $55 and the $150 special condition of probation fee. This case is remanded to the juvenile court to conduct a disposition hearing in accordance with these reasons.

AFFIRMED IN PART; AND VACATED AND REMANDED IN PART