author: Judge Rosemary Ledet

text:
    STATE of Louisiana IN the INTEREST OF W.S.
    NO. 2018-CA-0070
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 5, 2018
    Leon Cannizzaro, DISTRICT ATTORNEY ORLEANS PARISH, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY ORLEANS PARISH, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE/APPELLEE
    Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 220, Madisonville, LA 70447, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Tiffany G. Chase )
   Judge Rosemary Ledet

In this delinquency appeal, the juvenile, W.S., seeks review of his adjudication and sentence for misdemeanor theft. For the reasons that follow, we affirm the adjudication and sentence, but we remand for an amendment of the judgment of disposition.

STATEMENT OF THE CASE AND FACTS

In mid-June 2016, A.B. bought her 16-year-old developmentally disabled grandson, K.B., a $99 bicycle from Wal-Mart. On June 26, 2016, while riding his bicycle, K.B. was approached by W.S. K.B. was acquainted with W.S. from playing sports together. W.S. asked to "see" the bicycle; and K.B. agreed, but instructed W.S. to "come back" with it. W.S. then took the bicycle, quickly rode away, and never returned.

Shortly thereafter, K.B.'s mother and grandmother, who were riding together in a vehicle, observed K.B. standing alone at the corner of Claiborne Avenue and Laharpe Street. K.B.'s grandmother noticed that K.B. did not have his bicycle. The women stopped and asked K.B. where his bicycle was. K.B. responded that W.S. had taken it. After unsuccessfully attempting to locate W.S., they reported the theft to the police.

On August 7, 2016, K.B. saw W.S. walking along Dumaine Street. K.B. called his mother, and she came to meet him. The two followed W.S. a short distance and then called the police. When the police arrived, K.B.'s mother provided the police a description of W.S. Shortly thereafter, the police found W.S. (who was about a block away) and arrested him. While in custody, W.S. stated to an officer that K.B. had allowed him to borrow the bicycle and that, because the tires went flat, he had "left it at the corner."

On August 1, 2017, the State filed a delinquency petition, alleging that, on June 26, 2016, W.S. had committed theft of a bicycle belonging to K.B. valued at less than $500. On August 16, 2017, W.S. entered a denial; and the case was set for an adjudication hearing.

On November 2, 2017, the juvenile court conducted the adjudication hearing. At the conclusion of the hearing, the juvenile court adjudicated W.S. delinquent and set the case for a disposition hearing. On November 29, 2017, the juvenile court conducted the disposition hearing. At the conclusion of the hearing, the juvenile court imposed a suspended six-month sentence, six months of active probation, and restitution in the amount of $99.

ERRORS PATENT

We have reviewed the record for errors patent and found one. While the judgment of disposition reflects that W.S. was adjudicated delinquent for theft, the judgment does not reflect the grade of the offense. See State in Interest of J.D. , 14-0551, p. 10 (La. App. 4 Cir. 12/3/14), 154 So.3d 726, 733 (finding the failure of a judgment of disposition to reflect the grade of offense to be error patent). The remedy for such error is remand for amendment of the judgment. Id. We do so here.

DISCUSSION

In his sole assignment of error, W.S. contends that the evidence is insufficient to support his conviction for misdemeanor theft. Although juvenile delinquency proceedings are not criminal in nature, due process requires that the State prove every element of the charged offense beyond a reasonable doubt. In re Winship , 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Due process also requires that the sufficiency of the evidence adduced at trial be reviewed under the well-settled standard announced in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In State v. Brown , 12-0626, pp. 6-8 (La. App. 4 Cir. 4/10/13), 115 So.3d 564, 570-71, we set forth the standard as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Green , 588 So.2d 757 (La. App. 4th Cir. 1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall , 523 So.2d 1305 (La. 1988). The reviewing court must consider the record as a whole. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. at 1310. "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith , 600 So.2d 1319, 1324 (La. 1992).
When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro , 431 So.2d 372 (La. 1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from the Jackson reasonable doubt standard; rather, it is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright , 445 So.2d 1198 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs , 504 So.2d 817 (La. 1987).

In juvenile proceedings, the Jackson standard defines the minimum review required by the Due Process clause of the United States Constitution. Louisiana law imposes a broader standard of review. See State ex rel. D.R. , 10-0405, p. 14 (La. App. 4 Cir. 10/13/10), 50 So.3d 927, 935 (observing that "a child adjudicated a delinquent in Louisiana is entitled to a broader scope and standard of review than the minimum required by the Due Process clause"). Consistent with the understanding that juvenile delinquency proceedings are civil in nature, Louisiana courts review the sufficiency of the evidence in juvenile cases under a hybrid of the Jackson standard applied in criminal cases and the manifest-error standard applied in civil cases. See State in Interest of M.B. , 16-0819, pp. 7-8 (La. App. 4 Cir. 4/19/17), 217 So.3d 555, 562 ("As a result of juvenile delinquency determinations being civil in nature, both the Jackson standard and the manifest-error standard work together to provide juveniles with constitutionally adequate appellate review.") Accordingly, we must determine whether, viewing all of the evidence in the light most favorable to the State, the district court committed clear error in finding that the State proved beyond a reasonable doubt that W.S. committed misdemeanor theft.

Theft is "the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations." La. R.S. 14:67(A). The specific intent to permanently deprive is an essential element of the offense. Id. (proving that "[a]n intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential"); see also State v. Eason , 460 So.2d 1139, 1145 (La. App. 2d Cir. 1984) (observing that "[a]n essential element of the crime of theft is a specific intent to permanently deprive the victim of his property"). Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1).

At trial, K.B. testified that, although he had given W.S. permission to ride his bicycle, he had instructed W.S. to "come back" with it. Instead, K.B. further testified, W.S. took K.B.'s bicycle, quickly rode away with it, and never returned. This evidence was sufficient to allow the juvenile court to find a taking by fraudulent conduct and to infer the specific intent to permanently deprive; thus, under Jackson , this evidence was sufficient to support W.S.'s adjudication for theft.

Nonetheless, W.S. argues that the juvenile court committed manifest error in finding a taking because "the testimony clearly established [that] W.S. asked to ride the bike and [that] K.B. gave him permission to do so." That K.B. initially consented to W.S. borrowing the bicycle, however, is immaterial. "Theft under La. R.S. 14:67 is not limited to situations in which a defendant has the intent to defraud at the time he takes possession; it also includes a defendant's 'misappropriation' by fraudulent conduct of what is already in his possession." State v. Biddy , 13-0356, pp. 13-14 (La. App. 4 Cir. 11/20/13), 129 So.3d 768, 777 (citing State v. Frost , 11-1658, p. 8 (La. App. 4 Cir. 9/5/12), 99 So.3d 1075, 1079-80 ). "[T]he timing of a defendant's intent to deprive permanently is inconsequential, and the inquiry into that intent should focus only on whether such an intent was actually formed." Frost , 11-1658 at p. 10, 99 So.3d at 1081 (citing State v. Pellerin , 118 La. 547, 43 So. 159, 161 (1907) ). "[A] defendant can form an intent to steal after taking possession of property through honest means." Frost , 11-1658 at p. 9, 99 So.3d at 1080 (citing State v. Hayes , 01-3193, p. 7 (La. 1/28/03), 837 So.2d 1195, 1199 ).

W.S. also argues that the juvenile court committed manifest error in finding that W.S. ever formed the specific intent to permanently deprive K.B. of the bicycle. Specific intent to commit a theft may be inferred from circumstances. State v. Cryer , 564 So.2d 1328, 1330 (La. App. 4th Cir. 1990).

The evidence in this case established that, despite being told to "come back," W.S. failed to do so. Indeed, the evidence at trial also established that during the month and a half between taking the bicycle on June 26, 2016, and his arrest on August 7, 2016, W.S. never returned the bicycle to K.B. To the contrary, defense counsel elicited from the arresting officer W.S.'s statement that, rather than returning the bicycle to K.B., W.S. abandoned it because the tires became flat. In light of this evidence, the juvenile court's inference that W.S. had the specific intent to permanently deprive K.B. of the bicycle was not clearly erroneous. This assignment of error is without merit.

DECREE

For the foregoing reasons, the adjudication and sentence are affirmed and the case is remanded to the juvenile court for the purpose of amending the judgment of disposition.

AFFIRMED AND REMANDED

      Pursuant to Uniform Rules-Courts of Appeal, Rule 5-2, we use initials throughout this opinion to preserve confidentiality of the juvenile, the victim, and the witnesses.


source: Caselaw Access Project

license: Public Domain

text:
    Jean Montedonico MCKEOGH v. HEALTHCARE INDEMNITY, INC., University Healthcare Systems, LC, Robin A. Silverman, the Administrators of the Tulane Educational Fund, and Michael J. O'Brien
    NO. 2017-CA-1006
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 11, 2018
    Bernard J. Bagert, Jr., THE BAGERT LAW FIRM, 650 Poydras Street, Suite 2708, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    Stephen M. Pizzo, Bert J. Miller, BLUE WILLIAMS, L.L.P., 3421 N. Causeway Blvd., Suite 900, Metairie, LA 7002, Guy C. Curry, CURRY, CAVINESS & WEBB, 109 Northpark Blvd., Suite 520, Covington, LA 70433, Karen M. Fontana Young, KEAN MILLER, LLP, 909 Poydras Street, Suite 3600, New Orleans, LA 70112-4057, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Rosemary Ledet )
   Judge Rosemary Ledet

This is a medical malpractice suit. The plaintiff, Jean McKeogh, filed this suit against the following five defendants: (i) Michael O'Brien ("Dr. O'Brien"), an orthopedic surgeon; (ii) The Administrators of the Tulane Educational Fund, d/b/a Tulane University School of Medicine ("Tulane EDU"), Dr. O'Brien's employer; (iii) Robin Silverman ("Ms. Silverman"), a licensed physical therapist; (iv) University Healthcare System, L.C., d/b/a Tulane University Hospital & Clinic ("TUHC"), Ms. Silverman's employer; and (v) Health Care Indemnity, Inc., Ms. Silverman's insurer. Two of the defendants, Dr. O'Brien and Tulane, filed a motion for summary judgment. The trial court granted the motion. From that judgment, Ms. McKeogh appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 5, 2014, Dr. O'Brien performed a total shoulder arthroplasty on Ms. McKeogh's left shoulder. Dr. O'Brien saw Ms. McKeogh for her office visits, including her post-operative care, at the Tulane Institute of Sports Medicine ("TISM"), an uptown satellite clinic of TUHC located on Tulane University's campus. As part of her post-operative care, Dr. O'Brien prescribed physical therapy. For convenience, Dr. O'Brien's patients frequently opted to have such prescribed therapy at TUHC's Physical Therapy Department (the "PT Department"), which was located in the same building as the TISM but in a separate suite. Ms. McKeogh opted to do so.

On May 9, 2014, Ms. McKeogh returned to Dr. O'Brien and reported that she believed she was injured during physical therapy four days earlier. Dr. O'Brien ordered a CT Arthrogram of Ms. McKeogh's left shoulder, which was performed ten days later. The CT Arthrogram revealed a non-displaced fracture involving the coracoid process anteriorly. Ultimately, Ms. McKeogh developed a "frozen shoulder" and underwent a second surgical procedure on April 1, 2015.

Ms. McKeogh filed a complaint requesting a medical review panel ("MRP"). In her complaint, Ms. McKeogh's allegations regarding Dr. O'Brien were as follows:

• Failure to properly communicate with and monitor SILVERMAN in the methods of physical therapy that she was applying to PETITIONER;
• Failure to ascertain that SILVERMAN was qualified to perform physical therapy manipulations on a person with a condition such as that which afflicted PETITIONER;
• Failure to exercise reasonable care to inform, instruct and train SILVERMAN in proper physical therapy methods to be applied to petitioner who had under gone a complex shoulder replacement procedure; and
• Failure to use reasonable care and diligence in ascertaining the condition of PETITIONER post-surgery and determining [the] proper course of action in treating PETITIONER post-surgery.

On February 23, 2016, the MRP rendered its opinion. As to Ms. Silverman, the MRP found the evidence supported the conclusion that she failed to meet the applicable standard of care, as alleged in the complaint. As to Dr. O'Brien, Tulane EDU, and TUHC, the MRP found that the evidence did not support the conclusion that they failed to meet the applicable standard of care, as alleged in the complaint. Ms. McKeogh then commenced this suit. In her petition, she repeated the allegations she made before the MRP, including that Dr. O'Brien and Tulane EDU were vicariously liable for Ms. Silverman's actions.

On October 4, 2016, Dr. O'Brien and Tulane EDU filed a motion for summary judgment. Dr. O'Brien's motion for summary judgment was premised on the following two grounds: (i) Ms. McKeogh's lack of an expert to establish medical malpractice; and (ii) her lack of evidence of an employer-employee relationship between him and Ms. Silverman to establish vicarious liability for Ms. Silverman's alleged malpractice. In opposing the motion, Ms. McKeogh acknowledged that she was not contending Dr. O'Brien's active negligence (medical malpractice) caused her injuries; however, she contended that there was a genuine issue of material fact as to Dr. O'Brien's right to control Ms. Silverman, precluding summary judgment on her vicarious liability claim against them.

In support of their position that Ms. Silverman was not an employee of Tulane EDU, Dr. O'Brien offered the affidavit of Patricia Bethancourt, Tulane EDU's associate general counsel, and Dr. O'Brien's deposition testimony. In her affidavit, Ms. Bethancourt attested to the following facts regarding the legal relationships between the parties:

• [Tulane EDU] owns and operates the Tulane University School of Medicine.
• [Tulane EDU] does not own or operate Tulane University Hospital and Clinic [the "Hospital"]. In 1995, the Hospital was sold to [TUHC]. Since 1995, [TUHC] has been a separate legal entity not under the control of [Tulane EDU].
• Dr. Michael O'Brien is employed by [Tulane EDU].
• [Tulane EDU] does not own or operate [TUHC's PT Department] and does not employ the physical therapists. The physical therapists working at [TISM] are employed by [TUHC].
• Neither Dr. O'Brien nor [Tulane EDU] has any authority to hire, fire, train, or supervise employees of [TUHC] working in the [PT Department].

In his deposition, Dr. O'Brien echoed Ms. Bethancourt's attestations regarding the parties' legal relationships. Dr. O'Brien testified that he has an office where he sees patients both at Tulane Medical School downtown and at the TISM uptown. Dr. O'Brien explained that the TISM is owned by TUHC.

In opposition to the motion for summary judgment, Ms. McKeogh offered the following evidence: two affidavits by Ms. McKeogh; an affidavit by an orthopedic surgeon, Dr. Thomas Lyons; an affidavit by a physical therapist, Dr. T. Kirk Nelson; and an affidavit by her attorney, Bernard Bagert, Jr. In response, Dr. O'Brien filed a motion to exclude Ms. McKeogh's affidavits. As discussed elsewhere in this opinion, the only affidavit the trial court examined at the hearing was Dr. Lyons' affidavit, which the trial court excluded in part.

Following the hearing, the trial court granted the motion for summary judgment, giving the following oral reasons:

Louisiana Civil Code Article 2320 imposes liability on the employer only for those acts of its employee which it might have prevented, not the acts of third parties.
The affidavit of Patricia Bethancourt, which was submitted, confirmed that [Tulane EDU] do[es] not operate TUHC.
Miss McKeogh has not offered any evidence to rebut the testimony or the affidavit of Mrs. Bethancourt and Dr. O'Brien that the physical therapist Silverman was not an employee of [Tulane EDU].
This appeal followed.

DISCUSSION

Although Ms. McKeogh asserts numerous assignments of error, we find one dispositive-whether the trial court erred in granting summary judgment. The summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action ... and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2).

The applicable standard of review is de novo " 'under the same criteria governing the trial court's consideration of whether summary judgment is appropriate.' " Citron v. Gentilly Carnival Club, Inc ., 14-1096, p. 12 (La. App. 4 Cir. 4/15/15), 165 So.3d 304, 313 (quoting D'Angelo v. Guarino , 10-1555, p. 3 (La. App. 4 Cir. 3/9/12), 88 So.3d 683, 686 ).

This standard of review requires that an appellate court resolve the following two issues: (i) whether there is any genuine issue of material fact; and (ii) whether the mover is entitled to judgment as a matter of law. Citron , 14-1096 at pp. 12-13, 165 So.3d at 313 ; see also Williams v. Archer W. Constr., LLC , 16-0158, p. 3 (La. App. 4 Cir. 10/5/16), 203 So.3d 325, 328. Stated more precisely, this standard of review requires an appellate court to look at "the motion, memorandum, and supporting documents" to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3) (providing that "[a]fter an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law").

The burden of proof rests with the mover; however, "if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense." La. C.C.P. art. 966(D)(1). Instead, the mover must "point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Id. "The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

"A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate." Johnson v. Loyola Univ. of New Orleans , 11-1785, p. 7 (La. App. 4 Cir. 8/8/12), 98 So.3d 918, 923. "A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute." Id. The determination of whether a fact is material turns on the applicable substantive law. Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751.

The applicable substantive law here, as the trial court recognized, is vicarious liability. The vicarious liability concept is codified in La. C.C. art. 2320, which provides as follows:

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed....
In the above cases, responsibility only attaches, when the masters or employers ... might have prevented the act which caused the damage, and have not done it.
The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.

In order to fall within the ambit of La. C.C. art. 2320, "the plaintiff must show the existence of an employer-employee relationship. In evaluating the sufficiency of such proof, courts have been mindful that, by its nature, vicarious liability mandates strict construction." Roberts v. State, Through Louisiana Health & Human Res. Admin. , 404 So.2d 1221, 1225 (La. 1981).

This court, in Marchetta v. CPC of Louisiana, Inc. , 99-0485, p. 6 (La. App. 4 Cir. 3/22/00), 759 So.2d 151, 155, a medical malpractice case, observed that "[t]he 'single most important factor' for determining whether an employer-employee relationship exists is 'the right of the employer to control the work of the employee.' " Id. (quoting Roberts , 404 So.2d at 1225 ). "In applying this test it is not the supervision and control which is actually exercised which is significant, the important question is whether, from the nature of the relationship, the right to do so exists." Iteld v. Four Corners Const., L.P. , 12-1504, p. 31 (La. App. 4 Cir. 6/5/13), 157 So.3d 702, 721.

The jurisprudence has identified the following four principal evidentiary factors to be considered in deciding whether an employer-employee relationship exists: (i) the right of control or supervision, (ii) the selection and engagement of the workers, (iii) the payment of wages, and (iv) the power of dismissal. See Remet v. Martin , 97-0895, pp. 4-5 (La. App. 4 Cir. 12/10/97), 705 So.2d 1132, 1135 ; Iteld, 12-1504 at pp. 31-32, 157 So.3d at 721. Stated differently, "[t]he right of control necessarily encompasses supervision, selection and engagement, payment of wages or salary and the power to dismiss." Che v. First Assembly of God, Ruston, LA , 50,360, pp. 10-11 (La. App. 2 Cir. 1/13/16), 185 So.3d 125, 133.

To support his motion, Dr. O'Brien submitted, among other things, Ms. Bethancourt's affidavit and Dr. O'Brien's deposition testimony, which established the lack of an employee-employer relationship between him and Ms. Silverman. Based on our de novo review, we find that Dr. O'Brien made a prima facie showing that there was an absence of factual support for an essential element of the vicarious liability claim. The burden thus was on Ms. McKeogh to produce evidence that a genuine issue of material fact remains.

Ms. McKeogh contends that the trial court erred in failing to find that the evidence she submitted was sufficient to create a genuine issue of material fact and that she met her burden. The gist of Ms. McKeogh's argument is that, despite Ms. Silverman's status as a payroll employee of a third party (TUHC), sufficient evidence was presented to create a genuine issue of material fact as to whether Dr. O'Brien had the right to control Ms. Silverman. The evidence Ms. McKeogh relies upon in support of her contention is three-fold-Dr. O'Brien's deposition testimony, her own affidavits, and Dr. Lyons' affidavit.

Dr. O'Brien's deposition

Ms. McKeogh contends that the trial court erred in failing to consider Dr. O'Brien's statements in his deposition acknowledging his control over how Ms. Silverman performed her job. Viewed in context, Dr. O'Brien contends that his deposition testimony belies this contention. We agree. The full excerpts of Dr. O'Brien's testimony on which Ms. McKeogh relies are as follows:

• "I don't really have supervision of their physical therapy. I'm never present. I'm not their boss. I'm not in charge of making sure the physical therapist is capable of performing the rehabilitation. So if you're asking would I abandon their supervision, I don't think I have the position of supervising the physical therapist because I never directly supervise them. I'm not there during their physical therapy visits."
• "There's communication between the physicians and the therapists, especially if there are any challenges, whether it's a challenge in rehabilitation that the patient is experiencing or a new injury or a change in the rehab plan. Because we work in such close proximity, it would be common for a therapist to come speak with me or me go speak with a therapist because it's less than a minute away. That being said, it's not my job to micromanage the physical therapists. I trust that the physical therapists are all adequately trained, especially in the care of a postoperative orthopedic patient, that if I send an order with guidelines, I assume they will be able to follow those guidelines. So I don't try and micromanage the way that they do their exercises. If I find that a therapist is not doing what I ask, either too much or too little and a patient is unhappy with their progress in therapy, I will suggest that they go elsewhere for therapy. That's true whether if it's at TUHC or Ochsner or any private physical therapy office."

Dr. O'Brien's deposition testimony establishes that he lacked the authority to direct, control, or dismiss a physical therapist employed by a third party such as TUHC. As Dr. O'Brien contends, the only "control" that he had over the physical therapists working in TUHC's PT Department was to recommend his patients to another physical therapy center

Ms. McKeogh's affidavits

In an attempt to establish Dr. O'Brien had control, Ms. McKeogh also cites two statements from her second affidavit. The first statement she cites is that "[o]n May 5, 2015 [Ms. Silverman's] replies to my complaints and my request that she stop was 'I'm doing this because this is what Dr. O'Brien told me to do.' " The statement quoting what Ms. Silverman told Ms. McKeogh is hearsay. The hearsay exception in La. C.E. art. 801(D) for a statement offered against a party, which Ms. McKeogh cites, is inapplicable; the statement is Ms. Silverman's, not Dr. O'Brien's, statement. See La. C.E. art. 801(D)(2) (providing that "[a] statement is not hearsay if: ... [t]he statement is offered against a party and is: (a) [h]is own statement"). Although Ms. Silverman is a party to the suit, she is not a party to Dr. O'Brien's motion for summary judgment.

The second statement Ms. McKeogh cites is as follows:

After Dr. O'Brien finally realized that my shoulder bone had been fractured in physical therapy by Robin Silverman he stated: "I didn't do this." He also stated "I should have supervised Robin more closely." This clearly demonstrated that he exercised control over Robin Silverman and also possessed the right to exercise control over her treatment of me.

Unlike the first statement, the second statement is Dr. O'Brien's alleged statement that he "should have supervised Robin [Silverman] more closely." Even assuming, arguendo , that the statement is competent summary judgment evidence, the statement is insufficient to create a genuine issue of material fact. The statement, at best, would create a genuine issue of fact on a claim of independent fault in supervising an employee; however, the claim Ms. McKeogh is asserting is a vicarious liability claim. See Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW, § 13-2 (1996) ("TORT LAW") (noting "it is important to distinguish between the employer's vicarious liability and his independent fault in hiring, retaining or supervising an employee"). In sum, the statement alone, without any evidence of an employer-employee relationship, is insufficient to create a triable issue of fact.

Dr. Lyons' affidavit

Ms. McKeogh contends that the physical proximity of the physician and the physical therapist is a fact that should be weighed in making the determination of control. Ms. McKeogh cites Dr. Lyons' affidavit for the proposition that a physician generally retains the right to control a physical therapist who works in the same location. In particular, she cites the following statement by Dr. Lyons:

[I]t is typical and customary for a treating orthopedist to retain the right to exercise control over the actions of the physical therapist when a patient is receiving physical therapy at the same location as the office of the treating orthopedist who both performed the surgery and ordered the physical therapy.

Although Dr. Lyons' affidavit is devoid of any reference to the facts of this case, Ms. McKeogh emphasizes that Dr. O'Brien's office was only a few steps away from the location where Ms. Silverman injured her. Ms. McKeogh's physical proximity argument is unpersuasive for two reasons.

First, at the hearing on the motion for summary judgment, the trial court expressly found that Dr. Lyons was not competent to make the statement regarding the legal relationship between Dr. O'Brien and Ms. Silverman. The trial court reasoned that although Dr. Lyons was qualified, as an expert, to testify as to the standard of care of other orthopedists in the area, he was not qualified to testify regarding the vicarious liability issue. Stated otherwise, the trial court reasoned that Dr. Lyons was not qualified to make a "legal conclusion"-a "vicarious liability statement"-regarding the relationship between a physical therapist and an orthopedic surgeon. We agree.

Second, Ms. McKeogh's physical proximity argument is not supported by the jurisprudence. See Hull v. Jefferson Par.Hosp. Dist. No. 1 , 16-273 (La. App. 5 Cir. 4/26/17), 220 So.3d 838. The Hull case is instructive.

In Hull , supra , the plaintiff asserted a vicarious liability claim against West Jefferson Medical Center ("WJMC") based on the negligence of a physical therapist, Ms. Joseph, who worked at WJMC's hospital for a third party, RehabCare. WJMC had a contract with RehabCare for the services. The plaintiff contended that because WJMC provided the building, leased the space and equipment for the rehabilitation facility, and provided guidelines for staffing, it sufficiently controlled RehabCare such that Ms. Joseph was an employee of WJMC. The plaintiff also contended that WJMC, on its website, promoted the rehabilitation facility as being owned and operated by WJMC and failed to disclose that it was staffed by a third party.

Affirming the trial court's grant of WJMC's motion for summary judgment, the appellate court in Hull rejected the apparent authority argument and found that WJMC had produced sufficient evidence to establish that it was not vicariously liable for Ms. Joseph's negligent acts. Hull , 16-273 at p. 8, 220 So.3d at 845. As in Hull , we reject Ms. McKeogh's apparent authority argument based on the mere physical proximity of Dr. O'Brien's office and TUHC's PT Department.

In sum, none of the evidence Ms. McKeogh relies upon is sufficient to controvert the evidence that Dr. O'Brien submitted, establishing the lack of an employment relationship between him and Ms. Silverman. Ms. Silverman is a physical therapist who was employed by another party, TUHC, not by Dr. O'Brien or his employer, Tulane EDU. Dr. O'Brien had no supervisory role over Ms. Silverman; Dr. O'Brien could not hire, fire, train, supervise, or otherwise direct Ms. Silverman's actions. As Dr. O'Brien contends, Ms. McKeogh's vicarious liability claim is premised on a misunderstanding of the legal relationship of the parties. Dr. O'Brien thus established the lack of a genuine issue of material fact, entitling him to summary judgment.

DECREE

For the foregoing reasons, the trial court's judgment is affirmed.

AFFIRMED

      An arthroplasty is a "surgical operation to repair a joint, to replace a joint." P.H. Collin, DICTIONARY OF MEDICINE (3d ed. 2000).

      Ms. McKeogh filed multiple requests for an MRP. Her initial request for an MRP was filed with the Louisiana Patient's Compensation Fund on October 9, 2014; she filed supplemental complaints thereafter. The same defendants were named in the complaints as in this suit.

      As to Ms. Silverman, the MRP reasoned:
      1. It is a breach of the standard of care not to appropriately note and chart therapy performed on the patient. There was a lack of range of motion, pain level, and exercises that were performed.
      2. The panel does not believe that starting the resistive exercises two weeks early contributed to the patient's complaint.
      3. The panel cannot determine whether or not the non-displaced coracoid fracture occurred during the physical therapy session.

      As to Dr. O'Brien, the MRP reasoned:
      1. Dr. O'Brien's treatment of the patient post-surgery was appropriate.
      2. Dr. O'Brien ordered the appropriate physical therapy.
      3. Dr. O'Brien timely diagnosed the non-displaced coracoid fracture and treated the patient appropriately.
      As to both Tulane EDU and TUHC, the MRP reasoned that "[t]here is nothing in the record presented to the panel to review that indicates a deviation from the standard of care."

      For ease of discussion, we refer in the remainder of this opinion to Dr. O'Brien and his employer, Tulane EDU, collectively as "Dr. O'Brien" unless otherwise indicated. The other three defendants-Ms. Silverman, TUHC, and Health Care Indemnity, Inc.-did not file a motion for summary judgment. Although they filed an appellee brief, their brief was confined to the issue of Ms. McKeogh's "motion to suppress" the MRP opinion, which, for reasons explained elsewhere in this opinion, we do not reach.

      Dr. O'Brien contended that Ms. McKeogh could not establish a medical malpractice claim against him without a qualified expert defining the applicable standard of care, establishing that he breached the standard, and establishing that his breach of the standard caused her injuries. See Lewis v. Tulane Univ. Hosp. & Clinic , 03-0184, p. 6 (La. App. 4 Cir. 8/27/03), 855 So.2d 383, 387 (citing Pfiffner v. Correa , 94-0992, pp. 9-11 (La. 10/17/94), 643 So.2d 1228, 1234 ) (observing that "with a few exceptions which are clearly distinguishable from the instant case, because of the complex medical and factual issues involved in medical malpractice cases, a plaintiff will likely fail to sustain his or her burden of proving his or her claim under La. R.S. 9:2794 without medical experts").

      Dr. O'Brien contended "[t]here is no legal theory under the Louisiana Medical Malpractice Act where[by] a physician can be held liable for the independent acts of a physical therapist not employed by the physician and working for a third party."

      Given her concession, Ms. McKeogh contended that "La. R.S. 9:2794 and the Pfiffner case are inapplicable here because she does not contend that her injury was inflicted by the active negligence of [DR.] O'BRIEN."

      Dr. O'Brien testified that, after the time period at issue in this case, TUHC opted to outsource its PT Department to a third party.

      Ms. McKeogh's attorney's affidavit pertained to the issue of her "Motion to Suppress" the MRP opinion. The gist of her motion to suppress was that the MRP opinion was invalid because it was reached before any of the members of the panel could hear from the parties, in contravention of the requirements of La. R.S. 40:1231.8(G). As noted elsewhere in this opinion, Ms. McKeogh only disputes the grant of summary judgment as it pertains to Dr. O'Brien's vicarious liability for Ms. Silverman's acts. When, as here, the issue is one of a medical provider's vicarious liability for another medical provider, the jurisprudence has recognized that "[m]edical testimony has no bearing upon this legal basis for potential liability." Arroyo v. E. Jefferson Gen. Hosp ., 06-799, p. 8 (La. App. 5 Cir. 3/13/07), 956 So.2d 661, 665. For this reason, we pretermit addressing the issue Ms. McKeogh raises regarding the trial court's interlocutory ruling denying her "Motion to Suppress" the MRP's opinion.

      Ms. McKeogh also filed a motion for new trial for "re-argument only." In her motion, she again conceded that she was not seeking to argue the injuries she suffered were caused by Dr. O'Brien's personal, active negligence; rather, she was confining her argument to the vicarious liability issue. She contended that there was a genuine issue of material fact as to whether the fault of Ms. Silverman could be imputed to Dr. O'Brien. The trial court denied the motion.

      In 2015, the Louisiana Legislature amended La. C.C.P. art. 966"to provide for certain procedures at the hearing on a motion for summary judgment; to provide for the filing and consideration of certain documents; to provide for the burden of proof; and to provide for related matters." Acts 2015, No. 422, § 1. The 2015 amendment became effective on January 1, 2016. Because the motion for summary judgment was filed on October 4, 2016, the amended article applies here.

      The supporting documents allowed for purposes of summary judgment are enumerated in La. C.C.P. art. 966(A)(4) as follows:
      The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.

      Ms. McKeogh contends that the trial court erred in failing to consider the statements in her second affidavit directly disputing Ms. Bethancourt's attestations regarding Ms. Silverman's employer. Ms. McKeogh, however, failed to aver that she had any first-hand knowledge of the legal relationship between the parties; thus, she was not competent to attest on this issue. See La. C.C.P. art. 967(A) (providing that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein").

      Dr. O'Brien emphasizes that under La. C.C. art. 2320, vicarious liability only attaches when masters or employers might have prevented the act and that "[h]ere the clear uncontroverted testimony is that Dr. O'Brien is never present in the TUHC PT suite during therapy sessions." In the trial court, Dr. O'Brien's counsel noted that Ms. McKeogh was "essentially arguing for a type of captain of the ship doctrine application," which Louisiana courts have rejected. See Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW, § 13-2(d)(1) (1996) (noting that "Louisiana has held that in an action against a doctor for the fault of a hospital employee, the plaintiff must establish that the doctor exercise actual control over a defalcating assistant") (emphasis in original).

      This statement did not appear in Ms. McKeogh's first affidavit, which simply states that Dr. O'Brien said "I didn't do this." Her second affidavit is, thus, arguably inadmissible as "[a]n inconsistent affidavit offered only after the motion for summary judgment was filed." Bourgeois v. Curry , 05-0211, pp. 12-13 (La. App. 4 Cir. 12/14/05), 921 So.2d 1001, 1009-10 (collecting cases). In Bourgeois , this court noted that this principle is applied "to prevent the too easy thwarting of summary judgment procedure by the mere filing of affidavits contradicting the inconvenient statements found in previous deposition testimony when the mover has no opportunity to cross-examine the witness concerning the inconsistencies and the trial court is prevented from weighing evidence by the rules of summary judgment." Id.
      Dr. O'Brien also points out that Louisiana has adopted an "apology" exception to the hearsay rule allowing the introduction of health care provider's apology into evidence as non-hearsay admissions or statements against interest. The apology exception is set forth in La. R.S. 13:3715.5, which provides as follows:
      Any communication, including but not limited to an oral or written statement, gesture, or conduct by a health care provider expressing or conveying apology, regret, grief, sympathy, commiseration, condolence, compassion, or a general sense of benevolence made to a patient, a relative of the patient, or an agent or representative of the patient, shall not constitute an admission as defined in Code of Evidence Article 801(D)(2) or a statement against interest as defined in Code of Evidence Article 804(B)(3), and shall not be admissible in evidence to establish liability or for any other purpose, including impeachment, in a medical review panel proceeding, arbitration proceeding, or civil action brought by or on behalf of the patient or by or on behalf of an heir, survivor, statutory beneficiary, or agent or representative of the patient against the health care provider who made the communication. A statement of fault, however, which is part of, or in addition to, any such communication shall not be made inadmissible pursuant to this Section.
      Although in her briefs to this court Ms. McKeogh refers to the statement as Dr. O'Brien's "apology," she argues that the statement is an admissible "statement of fault" and thus within the exception to the statute. We note, but find it unnecessary to decide, the "apology-admission dichotomy" issue.

      The same statement appears in the affidavit of Dr. Nelson that Ms. McKeogh submitted. Dr. Nelson, like Dr. Lyons, was not competent to make the statement.

      In her second affidavit, she describes the location as "only a few yards away." Likewise, Dr. O'Brien testified in his deposition that walking at a normal pace from his office to the PT Department would take "[l]ess than a minute."

      Her argument is really an apparent authority argument, albeit not couched as such. See Campbell v. Hosp. Serv. Dist. No. 1, Caldwell Par ., 33,874, pp. 9-10 (La. App. 2 Cir. 10/4/00), 768 So.2d 803, 810 (observing that "an apparent, or ostensible agency is created by a hospital 'holding itself out' as a full service facility and creating the image that its physicians are employees of the hospital" and collecting cases).


author: COOKS, Judge.

text:
    TBM-WC SABINE, LLC v. SABINE PARISH BOARD OF REVIEW
    17-1189
    Court of Appeal of Louisiana, Third Circuit.
    July 18, 2018
    William R. Huguet, Kean Miller LLP, 333 Texas Street, Suite 450, Shreveport, LA 71101, Phyllis D. Sims, Kean Miller LLP, 400 Convention Street, Suite 700, Baton Rouge, LA 70802, Attorneys for TBM-WC Sabine, LLC: Plaintiff/Appellant
    Brian A. Eddington, 8941 Jefferson Hwy., Suite 200, Baton Rouge, LA 70809, Attorney for Sabine Parish Assessor, Cindy Manasco: Defendant/Appellee
    Robert D. Hoffman, Jr. APLC, 7039 Hwy. 190-E. Service Road, Covington, LA 70433, Attorney for The Louisiana Tax Commission: Amicus Curiae
    Court composed of Sylvia R. Cooks, Billy H. Ezell, and John E. Conery, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

TBM-WC Sabine, LLC (TBM) owns a natural gas pipeline and surface equipment at its Amine facility, all located within Sabine Parish, Louisiana. TBM filed a tax return, known as a rendition, with the Sabine Parish Tax Assessor's office for tax year 2015. In its rendition TBM set forth the dimensions and age of its "Toledo Bend-Wildcat system" pipeline (pipeline) which it identified as comprising "approximately 12.5 miles of 16[inch] trunkline and 19 miles of 10 [inch] trunkline." According to documents submitted by TBM, nineteen miles of ten-inch pipeline were installed in 2013 at a total cost of $6,317,880 and twelve and nine-tenths miles of sixteen-inch pipeline were installed from 2009-11, at a total cost of $6,967,071. The document further indicates that nineteen miles of this pipeline is in 96% good condition and twelve and nine-tenths miles is in 86-91% good condition. Additionally, TBM provided information that the surface equipment at its Amine facility was installed between 2002 and 2010 at a total cost of $1,426,140. TBM stated the facility was idle at the time of its tax filing but the pipeline was still in use. TBM asserted in its submission to Sabine Parish Assessor Cindy Manasco (Assessor Manasco) that the combined fair market value of the pipeline and surface equipment should ultimately be valued for 2015 tax purposes at $1,979,600 based on an 85% reduction in fair market value for obsolescence of both the pipeline and the surface items comprising its idle facility.

Applying the information provided by TBM, Assessor Manasco, using a State approved series of tax tables , calculated the base fair market value of the facility. This valuation is not disputed. In its rendition, TBM requested a reduction in fair market value asserting obsolescence for both its surface equipment and pipeline. In an exhibit in support of this request TBM describes the pipeline's current capabilities as follows: "Gas can easily flow north and south across the system at any given time with existing access to multiple takeaway pipeline operators." In addition to this information, TBM provided Assessor Manasco an unaudited, unauthored, single-page financial statement captioned "Toledo Bend Midstream Holdings, LLC and Subsidiaries Consolidated Income Statements" covering the period of December 31, 2013 to December 31, 2014. Toledo Bend Midstream Holdings, LLC is the parent company of TBM and other subsidiaries. This one-page income statement for the parent holding company does not delineate information specific to TBM Sabine, LLC. TBM also provided a single-page document, with no supporting data, purportedly showing the utilization percentage of its Wildcat pipeline. These documents and information were the only items submitted to Assessor Manasco in support of TBM's requested 85% reduction in the assessed value of its pipeline. Assessor Manasco found the information regarding obsolescence of the pipeline insufficient to establish the requested 85% reduction for fair market valuation of the pipeline. Instead, she applied a 12% reduction for obsolescence regarding the pipeline and a 90% reduction in the assessed value of TBM's surface equipment for its facility. Assessor Manasco assessed TBM's property for the tax year 2015 in Assessment No. 2754, placing an assessed value on TBM's pipeline and surface equipment of $13,840,600 resulting in an ad valorem tax bill for TBM's Sabine Parish property of $192,500.

TBM did not protest the 90% reduction concerning its surface equipment. It did, however, appeal the 12% obsolescence reduction for the pipeline to the Sabine Parish Board of Review (the Board) asserting the reduction was too low for its pipeline at the Amine facility. TBM did not appear at the hearing before the Board and did not submit any additional information to the Board. The Board upheld Assessor Manasco's assessed value of the pipeline.

TBM appealed the Board's decision to the Louisiana Tax Commission (LTC). It submitted additional information and testimony at the hearing before the LTC which it did not submit to Assessor Manasco to support its request for obsolescence, though available to it at the time of filing its rendition. LTC issued a Decision and Order awarding an additional 10% obsolescence on the pipeline for a total reduction in assessed value of 22%. LTC did not articulate any factual basis for its decision nor did it find that Assessor Manasco abused her discretion. LTC made no mention of its findings regarding the ruling of the Board subject to its review. Additionally, LTC did not find that Assessor Manasco's appraisal of the fair market value of the pipeline was in any way incorrect or that it was not made in conformity with the tables promulgated by LTC.

LTC's ruling resulted in a new assessed value of TBM's property at the Amine facility placing the fair market value of the property at $12,456,540, reducing TBM's net ad valorem tax bill for 2015 to $173,000.

Assessor Manasco appealed LTC's ruling to the Eleventh Judicial District Court which reversed and vacated the LTC's ruling and reinstated the decision of the Board upholding Assessor Manasco's assessed fair market value of TBM's pipeline and her 12% reduction for obsolescence. TBM appeals the judgment of the district court alleging four assignments of error.

TBM's Assignments of Error

1. In accordance with the Louisiana Administrative Procedure Act ( La.R.S. 49:964(G), the district court applied the incorrect standard of review to the LTC's decision, as it wholly failed to demonstrate that "substantial rights of the appellant have been prejudiced."
2. Similarly, under the Louisiana Administrative Procedure Act, the district court did not defer to the LTC with respect to its review of the documentary and testimonial evidence presented at the hearing, including whether the LTC's conclusions "were arbitrary or constituted an abuse of" its discretion.
3. The district court failed to recognize the Constitutional mandate of "correctness" under Article 7, Section 18(E) of the Constitution of the State of Louisiana, and erred in finding that the LTC made an "assessment," and "exceeded [its] authority" in its review and decision.
4. The district court erred in finding that the 10% obsolescence granted by the Louisiana Tax Commission was not supported by the evidence.

ANALYSIS

Under the provisions of the La. Const. art. 7, § 18 (D) the parish tax assessor enjoys the exclusive right to "determine the fair market value of all property subject to taxation within [her] respective parish." This court, in ANR Pipeline Company v. ANR Pipeline Co. , 11-379 p. 11 (La.App. 3 Cir. 8/10/11), 73 So.3d 398, 405, specifically held:

Parish tax assessors appraise the value of property within their parishes. It is incumbent upon taxpayers positioned to claim to [sic] a reduction of their ad valorem tax liability to prove they are entitled to that reduction ... The determination of whether the information provided is satisfactory rests within the sound discretion of the assessor subject to review on several levels.

The Louisiana Constitution provides for review of the correctness of a parish tax assessor's assessment in La. Const. art. 7, § 18 (E): "first by the parish governing authority, then by the Louisiana Tax Commission or its successor, and finally by the courts, all in accordance with procedures established by law." The Louisiana Constitution specifically designates LTC's function in this scheme as one of "review" as opposed to assessment. La. Const., art. 7, § 18 (E). TBM asserts "the burden of investigating and obtaining data for determination of fair market value [is] upon the assessor, not the taxpayer." Our courts have repeatedly rejected this assertion. This court noted in ANR Pipeline that La.R.S. 47:2324 provides a parish assessor "may rely on self-reporting by the taxpayer" and further noted that "our courts have long held that the party seeking obsolescence bears the burden of producing sufficient evidence to the assessor." ANR Pipeline , 73 So.3d at 402-04 (citations omitted). TBM faults Assessor Manasco for failing to "gather all the necessary information to determine the fair market value" of its pipeline. But, under the law including the administrative rules promulgated by LTC and settled jurisprudence, it was incumbent on TBM to provide all data and information to Assessor Manasco to support its request for adjusting the fair market value of its pipeline on the basis of obsolescence. TBM makes no showing and no assertion that the additional information it provided LTC in its effort to convince LTC to change the assessment was unavailable to it when it filed its rendition. In Dow Chemical Company v. Pitre , 468 So.2d 747, 754 (La.App. 1 Cir.)writ denied 474 So.2d 1308 (La.1985) (emphasis added) the first circuit, reversing the LTC's re-assessment of property, stated:

The constitution provides that assessments are to be made by the assessor. It is apparent to this court that Dow was attempting to circumvent the constitutional framework by withholding information from the assessor in an effort to have the Tax Commission make the actual assessment. Apparently, Dow felt that it would be strategically advantageous to have its assessment made by the Tax Commission, due to Dow's deteriorating relationship with the assessor. However, the Tax Commission may not usurp the constitutional authority of an assessor by utilizing factual data which was available to the taxpayer, yet withheld from the assessor. This is not to say, however, that the Tax Commission cannot review and correct an erroneous assessment.

TBM did not assert in its appeal to LTC that Assessor Manasco's assessment of the fair market value of its pipeline was an erroneous assessment or that she had failed to use the proper tables or appraisal approach provided in the administrative code promulgated by the LTC. In fact, Assessor Manasco's determination of the fair market value of the pipeline was not called into question before the Board on review or before the LTC on appeal. In Transcontinental Gas Pipeline Corporation v. Louisiana Tax Commission , 09-1988, 09-1989, 09-1991, 09-1992, p. 22 (La. 3/16/10), 32 So.3d 199, 212-13 the supreme court explained the method of valuation used by parish assessors determining the assessed value of intrastate pipelines:

The parish assessors use the depreciated replacement cost of the property located within their parish to determine its fair market value, utilizing guidelines promulgated by the LTC. This method looks at what it would cost to replace the assessed property new less depreciation. The record reflects that this method used by the parish assessors, replacement cost new less depreciation, is more appropriate for non rate-regulated entities.

Under the administrative rules promulgated by the LTC, parish assessors are directed as follows:

1. Pipelines, except those regulated pipelines, which are assessed as public service properties as provided by R.S. 47:1851(K), are to be assessed by parish assessors. Two separate classes of pipelines are identified because of differences in function, design and quality. The two classes are "lease lines," which are generally of lower quality, subject to changes in routes, etc.; and, "other pipelines," which are generally larger and of higher quality.
2. Both classes of pipelines are to be assessed in the taxing district where located. A copy of LAT Form 14 is to be provided the pipeline owner. Surface equipment associated with pipelines (compressor stations, booster stations, etc.) are to be reported separately on LAT Form 5. Surface pipeline related equipment is to be valued individually at cost factored to current value less physical deterioration. Pipelines are to be valued for assessment purposes at cost less physical deterioration. A cost schedule is provided for the various sizes of "other pipelines" (See Tables 1307.A and B). Represented in these schedules is the cost-new, as of the appropriate assessment date, for the different size pipelines. This cost is to be reduced for the appropriate allowance for physical deterioration (See Table 1307.C), based on the age of the pipeline, by multiplying replacement cost by the appropriate percent good factor ...

TBM offers no basis to conclude that Assessor Manasco abused her discretion in arriving at a 12% reduction for obsolescence but instead, relying on additional information provided to LTC but not presented to Assessor Manasco, attempts to have the fair market value of its intrastate pipeline assessed by a method not provided for by statute or administrative rules. TBM ignores the fundamental basis for valuing intrastate pipeline, such as this one located solely within Sabine Parish, from the basis used to value interstate or public service pipelines for which a different method of valuation is used for ad valorem tax appraisals. In the valuation of public service or interstate pipelines the appraiser "looks to the value of the business itself or the going concern of the company, and not just the hard assets of the company." Transcon. , 32 So.3d at 212. In its effort before LTC, and now before this court, TBM attempts to use this method of valuation to assess its intrastate asset in Sabine Parish. It is an entirely different exercise to determine the fair market value of the pipe in the ground by a cost less deterioration method in accordance with the legislatively and administratively mandated method of appraisal which Assessor Manasco employed, as opposed to the method provided for intrastate pipelines which takes into account the value of the going concern applying all three general accounting methods of appraisal. As concerns the subject pipeline the administrative code now directs the parish assessor to consider the effect of economic obsolescence on the final determination of whether to reduce the assessed fair market value for obsolescence when properly "substantiated by the taxpayer in writing ." La. Admin. Code tit. 61, pt. V § 1301(A)(2) (emphasis added). This court held in ANR Pipeline that, despite the 2009 change in the law making it mandatory to consider obsolescence when "substantiated by the taxpayer," the assessor "still retains the discretion to determine whether the taxpayer has substantiated that obsolescence." ANR Pipeline , 73 So.3d at 403. In its attempt to convince Assessor Manasco that she should make an adjustment to the actual fair market value for TBM's pipe in the ground based on its asserted 85% reduction for obsolescence, TBM submitted inadequate information to substantiate its request. Though TBM makes much effort to lay the lack of substantiation of its claim at Assessor Manasco's feet, the law places that responsibility squarely on TBM.

The standard of review in this case for both the district court sitting as an appellate court, and this appellate court reviewing the decision of the district court, is set forth in the Administrative Procedures Act, La.R.S. 49:964(G). In ANR Pipeline , this court relied on the second circuit's reasoning in Jones v. Southern Natural Gas Company , 46,347, 46,348, 46,351 (La.App. 2 Cir. 4/13/11), 63 So.3d 1080, 1088, writ not considered , 11-1242 (La. 9/23/11), 70 So.3d 800, and writ not considered , 11-1242 (La. 11/4/11), 75 So.3d 911, to affirm the district court judgment reversing the LTC's ruling and reinstating the parish tax assessors' assessments. The second circuit in Jones set forth an appellate court's standard of review succinctly:

On review of the district court's judgment, the court of appeal owes no deference to the factual findings or legal conclusions of the district court. Smith v. State, 39,368 (La.App. 2 Cir. 3/2/05), 895 So.2d 735, writ denied, 05-1103 [ ( ]La.6/17/05), 904 So.2d 701, and citations therein; Bailey v. EnerVest , [45,553 (La.App. 2 Cir. 6/30/10), 43 So.3d 1046 ].
Under the Administrative Procedure Act, La. R.S. 49:964(G), the district court and court of appeal may reverse or modify the agency's determination if the substantial rights of the party seeking review have been prejudiced because the administrative findings, inferences, conclusions or decisions are (1) in violation of constitutional or statutory provisions, (2) in excess of the agency's statutory authority, (3) made upon unlawful procedure, (4) affected by other error of law, (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, or (6) manifestly erroneous in view of the reliable, probative and substantial evidence in the record. Smith v. State, supra ; Bailey v. EnerVest, supra.

Id. at 1088.

In this case, the district court, functioning as an appellate court, reversed the decision of LTC and reinstated Assessor Manasco's assessment finding LTC's determination "was neither supported nor sustainable by a preponderance of the evidence and exceeded the authority of the Tax Commission, which is expressly limited by the Louisiana Constitution to review and not assess." We review the decision of the district court de novo. TBM's assignments of error focus on the district court's review of LTC's rulings and whether or not the district court employed the proper standard of review or applied the provisions of La. Const. art. 7, § 18 (E) properly. But the proper focus of this court's review is to determine whether TBM has shown that Assessor Manasco abused her great discretion in finding TBM's submissions insufficient to substantiate its requested reduction in fair market value for economic obsolescence of the pipeline. In reviewing LTC's decision we must determine "whether the commission manifestly erred when it determined that [the assessor] abused [her] discretion in determining that the [taxpayer] failed to sufficiently substantiate [its] claims of economic obsolescence." ANR Pipeline , 73 So.3d at 403. In this regard we agree with the district court's conclusion that TBM fails to show Assessor Manasco abused her discretion in awarding a 12% reduction in fair market value rather than TBM's requested 85% reduction.

As we have previously noted, TBM accepts Assessor Manasco's discretionary determination of the base fair market value of TBM's property at its Amine facility and of its pipeline located in Sabine Parish. Indeed, this determination was made by Assessor Manasco based on data provided by TBM and applying that information to tax tables promulgated by LTC. The tax tables provide information as to the average cost per mile of pipeline and sets forth the percent good as to condition based on actual age with 26.5 years being the accepted life-span of a pipeline for valuation purposes. A review of the tables promulgated by the LTC and the information provided by TBM shows virtually the same cost per mile in a given year and shows the same percent in good condition for each year of age of the various sections of this pipeline. In valuing the surface equipment, the parish assessor is given greater latitude and exercises more discretion in deciding whether to accept the taxpayer's figures showing depreciation or to require more information from the taxpayer and/or to look to other market information. As noted earlier, TBM had no complaint with Assessor Manasco's acceptance of TBM's depreciated value of the surface equipment of its idled Amine Plant and in exercising her discretion to accept that information as sufficient substantiation supporting her 90% reduction for obsolescence regarding that property. Despite accepting these favorable determinations based on information provided by TBM, as is its duty to provide, it now argues that although Assessor Manasco apparently exercised proper discretion when she made these decisions she somehow failed to appropriately digest the information provided to her by TBM when she concluded the information shows that TBM's pipeline has a reduced fair market value of "only" 12%, but that the information was not sufficient to substantiate the requested 85% reduction. She reached this conclusion based on her consideration of the information provided exercising her discretion after consulting other assessors. We also note that TBM does not argue in these proceedings that it has shown entitlement to its requested 85% reduction or that LTC erred in failing to reach that conclusion, asserting only that LTC properly found it is entitled to a 22% reduction for obsolescence.

LTC offered a cryptic explanation of its ruling stating only that:

Taking into consideration the evidence presented by all parties, the Commission determined that the Taxpayer provided information to indicate additional obsolescence was in order for this property. The Commission determined an additional 10% obsolescence should be added to the 12% provided by the Assessor to include a total of 22% additional obsolescence of the Assessor's value ...
Applying its expertise, technical competence, specialized knowledge, and based upon the entirety of the record, the Commission does hereby determine the fair market value of the subject pipeline and personal property, Assessment No. 2751, located in Sabine parish, Louisiana, to be[:]
Pipeline and Personal Property Fair Market Value $12,456,540[.]

This is a far cry from "an articulated analysis of the facts" as directed by the Louisiana Supreme Court in Miller v. LAMMICO , 07-1352, p. 28 (La. 1/16/08), 973 So.2d 693, 711. LTC offered no explanation of how it arrived at its conclusion and seems to be substituting its' discretion for the parish assessors' which it is not constitutionally empowered to do. LTC does not say how Assessor Manasco abused her discretion in allowing a 12% reduction or for that matter that it found such an abuse of discretion. LTC does not enjoy the Parish Tax Assessor's exclusive, constitutionally mandated discretion in making assessments of taxpayer's property. As we have previously stated, its function is limited to one of review rather than assessment. La. Const. art. 7, § 18 (E). See also Bailey , 43 So.3d at 1056. The Parish Tax Assessor's assessment is presumed valid unless the taxpayer proves otherwise. Gisclair v. La. Tax Commn. , 09-7, 09-8 (La. 6/26/09), 16 So.3d 1132. We also note that, despite the fact that TBM took no issue with Assessor Manasco's determination of the base fair market value of its property and took no issue with her reduction for obsolescence of 90% for the surface equipment at TBM's Amine facility, LTC says it "determin[ed]" the fair market value of the pipeline and the "personal property" of TBM located in Sabine Parish. The only issues before LTC were the correctness of the Board of Review's ruling upholding Assessor Manasco's 12% reduction for obsolescence of the pipeline and whether Assessor Manasco abused her discretion. Neither the fair market value of TBM's property and pipeline or the 90% reduction for obsolescence of its surface property was before the LTC. TBM has never objected to those determinations. Based on our review of the record we cannot say Assessor Manasco abused her discretion in finding TBM's submissions supported only a 12% reduction in fair market value based on obsolescence. TBM complains that Assessor Manasco offers no basis for arriving at a 12% reduction, but the record does not support a finding that Assessor Manasco abused her discretion in allowing such a reduction.

We find TBM failed to substantiate its asserted 85% reduction in fair market value for its intrastate pipeline in Sabine Parish. We also find TBM fails to show Assessor Manasco abused her discretion when she determined that TBM's submissions did not adequately substantiate its' requested reduction for obsolescence. Our review of the record supports the district court's ruling and for the reasons stated we affirm the district court judgment. All costs of this appeal are assessed against TBM-WC Sabine, LLC.

AFFIRMED.

Ezell, J., concurs.

      La.Admin Code, tit. 61, Pt. V, § 1307.

      The Sabine Parish Police Jury acts as the Sabine Parish Board of Review in these tax matters when a taxpayer protests assessments of its property by the parish assessor.

      The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
      (1) In violation of constitutional or statutory provisions;
      (2) In excess of the statutory authority of the agency;
      (3) Made upon unlawful procedure;
      (4) Affected by other error of law;
      (5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
      (6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.


text:
    STATE of Louisiana v. Javonte BATTIE
    NO. 15-K-643
    Court of Appeal of Louisiana, Fifth Circuit.
    December 16, 2015
    Attorneys for Relator: James A. Williams, Timothy T. Yazback, Attorneys at Law, 706 Derbigny Street, Gretna, LA 70053, (504) 361-0636
    Attorneys for Respondent: Terry M. Boudreaux, Assistant District Attorney, 200 Derbigny Street, Gretna, LA 70053 (504) 368-1020
   WRIT DENIED

In this writ application, relator, Javonte Battie, challenges the trial court's ruling that denied the suppression of the contents of his cell phone. For the reasons that follow, we find no error in the trial court's decision and, accordingly, deny this writ application.

During the course of a narcotics investigation, detectives arrested relator and co-defendant, Melvin Zamora, on November 13, 2012. Pursuant to those arrests, officers seized their cell phones and immediately inspected the contents of the phones. Thereafter, on August 29, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant with distribution of cocaine, in violation of La. R.S. 40:967(A) (count one), and possession of cocaine, in violation of La. R.S. 40:967(C) (count two). Relator pled not guilty and moved to suppress the information obtained from his cell phone on the basis that the officers were required to obtain a search warrant before inspecting the cell phone pursuant to Riley v. California , --- U.S. ----, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).

After conducting a suppression hearing, the trial court found that the officers validly seized the cell phones incident to the arrests. However, relying on the recent United States Supreme Court case of Riley v. California, supra, which held that a search warrant was required to search the cell phones, the trial court suppressed any information discovered on the cell phones.

The State thereafter filed a motion to reconsider the trial court's ruling that the officers were required to obtain a search warrant before inspecting the cell phones' contents. On August 13, 2015, the trial court granted the State's motion, thereby reversing its original ruling that granted relator's motion to suppress the contents of the cell phones. Relator now contends that the trial court erred in denying his motion to suppress the contents obtained from his cell phone.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search and seizure, the proper remedy is exclusion of the evidence from the defendant's trial. A search conducted without a warrant issued upon probable cause is per se unreasonable, unless justified by a specific exception to the warrant requirement. State v. Honeycutt, 08-126 (La. App. 5 Cir. 5/27/08), 987 So.2d 250, 254. A search incident to an arrest is an exception to the warrant requirement. This exception holds that once a lawful arrest has been made, a warrantless search of the arrestee's person and of the area within his immediate control is permissible in order to remove any weapons from his person and to prevent evidence from being destroyed. State v. Cole, 13-540 (La. App. 5 Cir. 12/12/13), 131 So.3d 931. In Riley, supra, the United States Supreme Court held that the search incident to arrest exception to the warrant requirement does not extend to a search of data on a lawfully seized cell phone.

In its ruling denying relator's motion to suppress, the trial court acknowledged that an application of Riley to the present case would warrant suppression of the contents of the cell phone. However, the trial court thereafter employed the rationale set forth in Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), and found that suppression of the evidence was not warranted. The trial court noted that the police were acting in accordance with persuasive authority in effect at the time of the seizure, United States v. Finley, 477 F.3d 250 (5th Cir. 2007), cert. den., 549 U.S. 1353, 127 S.Ct. 2065, 167 L.Ed.2d 790 (2007) (which held that the officer may search a cell phone's contents incident to a lawful arrest), and further noted that the suppression of the evidence would not further the purpose of the exclusionary rule. We agree with the trial court's determinations.

We first note that a review of Louisiana jurisprudence suggests that at the time of the present search and seizure of relator's cell phone, the officers were justified in their actions. In State v. Tomasetti, 381 So.2d 420 (La. 1980), the Louisiana Supreme Court held that the seizure of a package from the defendant and its subsequent search were permissible as incident to his arrest. The Court noted that the package was within the defendant's immediate possession and control at the time of his arrest. Likewise, in State v. Clift, 339 So.2d 755 (La. 1976), the Court upheld the search of the defendant's wallet following his lawful arrest for possession of marijuana.

In addition to Louisiana cases that suggest that the officers were acting in accordance with established Louisiana jurisprudence at the time of the search and seizure in the instant case, we further find support for the denial of the suppression of the evidence in persuasive authority from a federal appellate court. In United States v. Finley, supra, the United States Fifth Circuit Court of Appeal upheld the search of a cell phone found on the defendant at the time of his arrest. In that case, the defendant was arrested at the scene of a traffic stop, and the officers searched his person and seized a cell phone in his pocket. During questioning, one officer searched through the defendant's call records and text messages, and several of the messages corresponded to drug use and trafficking. The defendant challenged the search on appeal. The court relied on previous jurisprudence holding that a "full search" may be performed under a search incident to arrest, and a permissible scope of the search under that exception extends to containers found on the person. The court accordingly found that the search of the cell phone was lawful as it was conducted pursuant to a valid custodial arrest.

Moreover, even applying Riley retroactively to this case, the suppression of the evidence would still not be warranted. In accordance with the views expressed by the trial court, we find that the rationale employed in Davis v. United States, supra, is applicable to the instant situation and allows for the admission of the challenged evidence. In Davis, the United States Supreme Court held that evidence obtained during a search conducted in objectively reasonable reliance on binding appellate precedent, which is later overruled, is not subject to the exclusionary rule. In so holding, the United States Supreme Court stressed that the sole purpose of the exclusionary rule is to deter future Fourth Amendment violations and that for exclusion of the evidence to be appropriate, the deterrence benefits must outweigh the heavy costs associated with the exclusion of the evidence. The Supreme Court explained that when the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. However, when the police act with an objectively reasonable good faith belief that their conduct is lawful, the deterrence rationale is not as strong, and exclusion of the evidence is not appropriate.

As noted by the trial court, in his very thorough analysis under Davis v. United States, supra, suppressing the contents of the cell phone under Riley in the instant case would not further the purpose of the exclusionary rule. The trial court basically found that the exclusion of the evidence would have no deterrent effect on future law enforcement activity, and therefore, the societal cost of exclusion would clearly outweigh any deterrent benefit. Further, as noted by the trial court, the conduct of the officer was "innocent police conduct ... and not the type of reckless grossly negligent violation of the Defendant's 4th Amendment Rights, which is sought to be punished by the exclusion of the evidence in this matter."

We have also considered relator's assertion that the trial court should have relied on State v. Bone, 12-34 (La. App. 5 Cir. 9/11/12), 107 So.3d 49, writ denied, 12-2229 (La. 4/1/13), 110 So.3d 574, rather than United State v. Finley, supra, in making its ruling on the suppression of the contents of his cell phone. However, as noted by the trial court, the Bone case is distinguishable because the text messages in that case were obtained through a subpoena duces tecum without a probable cause showing.

Accordingly, for the reasons set forth herein, we find that the trial court did not abuse its discretion in denying relator's motion to suppress the evidence seized from his cell phone. This writ application is denied.

      Relator argues that the Davis case is not applicable to the instant case because there is no binding precedent to support the warrantless search of his cell phone. However, we find no reason that the rationale employed in Davis cannot be applied to persuasive authority. See United States v. Rose , 914 F.Supp.2d 15 (D. Mass. 2012).