author: McCLENDON, J.

text:
    STATE of Louisiana v. Kenneth JACKSON
    2018 KA 0261, 2018 KA 0262
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: November 02, 2018
    Richard J. Ward, Jr., District Attorney, Antonio M. Clayton, Terri Russo Lacy, Dana Larpenteur, Assistant District Attorneys, Port Allen, Louisiana, Counsel for Appellee, State of Louisiana
    Holli Herrle-Castillo, Marrero, Louisiana, Counsel for Defendant/Appellant, Kenneth Jackson
    BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

The defendant, Kenneth Jackson, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1, and pled not guilty. The trial court denied the defendant's motion in limine to prevent the State from introducing other crimes evidence pursuant to LSA-C.E. art. 404(B). Following a bench trial, the defendant was found guilty as charged. The defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant now appeals, assigning error to the admission of other crimes evidence and the sufficiency of the evidence. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On November 4, 2014, at approximately 2:00 p.m., Deputy Brandon Travis, Sr., of the Iberville Parish Sheriff's Office (IPSO), was patrolling the Plaquemine area when he received a dispatch reporting spousal abuse of Vanessa Jackson. Deputy Travis was instructed to meet Vanessa at the NAPA Auto Parts and Supplies store on La. Highway 1, and proceeded to that location. After waiting for up to five minutes, Deputy Travis called the dispatcher and was informed that Vanessa should have arrived within a few minutes of the initial dispatch. Deputy Travis decided to leave NAPA and proceeded to Jackson's residence, located at 57638 True Hope Lane. The residence was described as a mobile home sitting perpendicular to the roadway with a front left-side porch. When Deputy Travis arrived at the residence, he observed Vanessa's husband (the defendant) in the yard, towards the rear of the trailer, standing over a body with a knife in his hand. Deputy Travis immediately exited his vehicle and upon the officer making eye-contact with the defendant, the defendant threw the knife towards the front of the porch. Deputy Travis commanded the defendant to get down on the ground to be placed in handcuffs. The defendant did not comply with Deputy Travis's order. IPSO Lieutenant Will Dangerfield, who arrived on the scene shortly after Deputy Travis, brandished his taser and commanded the defendant to get down, and the defendant complied. The defendant was then handcuffed and transported to jail, as the officers secured the scene.

When IPSO Detective Mark Graves arrived at the scene at approximately 2:10 to 2:15 p.m., the first responding officers had secured the scene. Emergency personnel were rendering aid to a male subject, Brandon King (the victim), Vanessa's twenty-six-year-old son. Detective Graves noticed a silver, bloody, large-blade knife on the ground near the steps of the front porch. He further observed blood next to the victim, who was lying on the ground near the rear steps of the porch, and a rocking chair that appeared to have been knocked over from the porch. After entering the mobile home, Detective Graves took a statement from Vanessa, who also showed the detective a bruise on her right bicep. He further observed her swollen right wrist, a red abrasion on her left cheek, bruising to the back of her lower neck and shoulder area, and redness to her ear where the defendant reportedly ripped her earring out. Vanessa was taken to the Sheriff's Office to provide a full interview before seeking medical attention. Detective Graves did not see any blood on the porch or in the residence. None of the furniture or other contents of the residence appeared to be disturbed or out of place, and there were no signs of a struggle therein. Based on his observations, Detective Graves concluded that the victim sustained his injuries while in the yard, not on the porch or in the residence.

Upon his arrest, the defendant was fully advised of his Miranda rights and waived them, participating in a video-recorded interview. He described the incident with Vanessa before the stabbing as a "shoving match." At the outset, he claimed that he was protecting himself during the stabbing incident at issue. The defendant stated that when the victim arrived, he began kicking the front door. As the defendant further indicated, when he opened the door, the victim "bum-rushed" into the house and began making complaints of the defendant hitting his mother. The defendant stated that the victim bear-hugged him and tried to punch him. The defendant stated that he picked up the knife, possibly knocking over the knife block in the process, as the victim continued to approach. The victim grabbed the defendant, and they went out of the door and fell off of the porch, as the victim was still "trying to punch" the defendant. According to the defendant, the victim then grabbed the defendant's hand, in an attempt to take the knife. The defendant admitted that he stabbed the victim during the tussle. He stated that he immediately complied with the police, who told him to approach them after he tossed the knife.

The day after the stabbing, in light of the defendant's post-arrest claims that the victim attempted to kick the door in and of an altercation taking place inside prior to the stabbing, the officers re-inspected the home before allowing Vanessa to reenter the residence. Detective Graves noted and photographed minor damage to the entry/exit door. Detective Graves further measured the distance from the doorway to the edge of the porch at approximately fourteen feet and four inches. He again did not see any signs of a struggle in the residence. A knife block with one missing knife was sitting upright on the kitchen counter, against the back wall between the cabinets. The distance from the edge of the porch to where the victim's body was located was another three feet, approximately. Thus, the victim's body and blood were located approximately seventeen feet from the front doorway of the residence.

The victim suffered three stab wounds, specifically to his upper back (left posterior shoulder), left forearm, and his right lower neck. The victim died as a result of his stab wounds.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number two, the defendant assigns error to the sufficiency of the evidence. The defendant argues that the trial court erred in finding the State sufficiently proved that he was not acting in self-defense when he stabbed the victim. The defendant argues that he was defending himself from his enraged stepson inside of his own home. Thus, the defendant does not dispute that the victim's death was a result of being stabbed by the defendant. The defendant contends that at the time of the offense, he was inside of his home, a place where he had a legal right to be. The defendant also alleges that the victim did not live at the defendant's house at the time of the offense and did not have a key to the house.

The defendant contends that Vanessa was concerned about what the victim would do after she told him that she was hit by the defendant. The defendant argues that Vanessa's concerns were consistent with the defendant's testimony that when the victim arrived at his residence, he began beating and kicking the door, and yelling that he was going to kill the defendant for hitting his mother. The defendant asserts that his version was supported by testimony presented by his nephew, Shawn Howard. He contends that he and Howard were having a telephone conversation when the victim arrived, and that Howard could hear a banging noise. The defendant claims that he opened the door because he was afraid that the victim would destroy it, that he backed into the kitchen when the victim entered the residence, and that he picked up the knife from the counter to urge the victim to leave. The defendant further claims that the victim initially appeared compliant before suddenly rushing into the defendant, causing both men to fall out of the house and off the porch as a struggle ensued. The defendant contends that the victim was stabbed three times during the struggle. The defendant concludes that the evidence presented by the State in an attempt to show that the victim was not the aggressor was not credible and was disputed by other testimony.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. See LSA-C.Cr.P. art. 821(B) ; State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Hearold, 603 So.2d 731, 734 (La. 1992).

In conducting the review under Jackson , we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." LSA-R.S. 15:438 ; State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 00-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the fact finder reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. See State v. Captville, 448 So.2d 676, 680 (La. 1984) ; State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932.

The crime of second degree murder, in pertinent part, "is the killing of a human being: (1)[w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" LSA-R.S. 14:30.1(A)(1). "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." LSA-R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon, 95-0625 (La.App. 1 Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923. Specific intent to kill can be implied by the intentional use of a deadly weapon, such as a knife or a gun. State v. Maten, 04-1718 (La.App. 1 Cir. 3/24/05), 899 So.2d 711, 716, writ denied, 05-1570 (La. 1/27/06), 922 So.2d 544 ; see also, State v. Brunet, 95-0340 (La.App. 1 Cir. 4/30/96), 674 So.2d 344, 349, writ denied, 96-1406 (La. 11/1/96), 681 So.2d 1258.

A homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. LSA-R.S. 14:20(A)(1). However, a person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. LSA-R.S. 14:21. When the defendant in a homicide prosecution claims self-defense, the State must prove beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Williams, 01-0944 (La.App. 1 Cir. 12/28/01), 804 So.2d 932, 939, writ denied, 02-0399 (La. 2/14/03), 836 So.2d 135.

Deputy Travis described the defendant's demeanor upon the deputy's approach as follows, "like his adrenaline was pumping and he had like a - there was like an empty stare in his eyes, kind of like he was in a trance." He further described the defendant's eyes as "scary," noting that the defendant was in an apparent "deep gaze." Lieutenant Dangerfield likewise stated that the defendant initially stood there, breathing heavily, and staring at the officers while failing to respond to Deputy Travis's order to get down on the ground.

Detective Graves testified that he had eighteen years of police experience. In his opinion, there would have been items disturbed in the residence based on the defendant's version of the story. He agreed on cross-examination that the damage to the door was consistent with someone kicking the door, and that there could have possibly been a struggle at the doorway that spilled over onto the porch. He noted that the knife block was upright and not turned over, despite the defendant's indication that he may have knocked it over. Deputy Graves further classified the victim's stab injury to his left forearm as a defensive wound.

Antoinette Green, Vanessa's cousin, testified that the defendant and the victim had a strained relationship. About two years before the stabbing, Green witnessed an incident between the defendant and the victim at the Jackson residence. When Green first arrived that day, she observed the defendant and the victim fighting. The victim slipped and the defendant pulled out a gun and held it to the victim's head. Green immediately began screaming and pleading to the defendant, asking him not to kill the victim. As Green continued to beg the defendant not to kill the victim, the defendant moved the gun and stated, "...you could thank her because she saved your sorry ass life today." Vanessa testified consistent with Green as to the prior incident.

Vanessa and the defendant had been married for about four years by the time of the offense, and they lived in the mobile home purchased by Vanessa in 2001. Vanessa indicated that the defendant became verbally and physically abusive about one year into the marriage, contending that he would often belittle and strike her. Prior to their marriage, Vanessa had one child, Brandon King, the victim. Vanessa testified that the victim, her only child, was always welcome at her home. She indicated that the defendant would criticize her for having the victim "spoiled," complaining that she should "let him be a man."

Vanessa testified that the knives in the block on the kitchen counter were rarely used, noting that she had other knives. She specifically stated that the large knife used by the defendant to kill the victim was not left sitting out on the counter that day. Prior to the stabbing, the defendant and Vanessa had an argument and the defendant abruptly began punching her and hitting her in the face. Vanessa further testified that the defendant repeatedly called her ungrateful, as he hit her in the face, knocked her earring out, and hit her in the back and arm. Vanessa further stated that the defendant would not allow her to get her phone, noting that she wanted to call 911. The defendant continued to follow her as she entered the bathroom, and went back to the bedroom before exiting the house and walking around in the yard. She informed the defendant that she was going to visit Green, who lived across the street at the time, but the defendant stated, "no you [sic] not... what you think I won't drag you across this yard?" Vanessa then reentered the mobile home. At this point, the two o'clock hour was approaching. In an effort to coax the defendant into allowing her to leave, Vanessa told him that she wanted to bring ice cream to her mother, who suffered from health issues at the time. As Vanessa was leaving, the defendant warned her against calling the police or summoning members of her family, stating, "...you can go get your family and you can go call your brother or your son, and if your son bring his ass here today this is going to be the day he die."

When Vanessa arrived at her mother's house nearby, she was shaking and nervous. The victim, who also lived there, was not home at the time. She called the victim and told him that the defendant had hit her. She also called Green and the police. The police asked Vanessa a series of questions before instructing her to meet them at NAPA. Vanessa lost contact with the victim and was unable to tell him that she had contacted the police and arranged a meeting at NAPA. Vanessa admitted that she was concerned because the victim was protective of her, and because the defendant and the victim were temperamental. Thus, she headed back to her mobile home. On the way, the victim passed her as she unsuccessfully tried to flag him down. As they arrived at the mobile home, Vanessa parked in her next-door neighbor's yard and the victim parked across the driveway. She exited her vehicle, running behind the victim as he went up the porch steps.

Vanessa further testified that when the victim went up the steps, the screen door was closed but the main door was open, as the defendant stood in the doorway. The victim asked the defendant, "why you hit my momma?" As to what happened next, she testified, "Kenneth bust out the door and Brandon went on the ground, all the way across the porch. He knocked him all the way across the porch when he landed on his back on the ground." She noted that the rocking chair fell over as the victim landed on the ground. The defendant was on top of the victim at that point. Vanessa testified that she was unaware that the defendant had a knife until her son stated, "Momma he's stabbing me [.]" The victim repeated the statement twice before becoming silent. Vanessa repeatedly confirmed that she never lost sight of the victim, and that the victim did not enter the mobile home. She further testified that the victim did not kick the door, stating that the damage to the door as depicted in the photographs "has been there forever." She indicated that she was unsure "when [the damage] happened, but it didn't happen that day. It didn't happen that day." She reiterated that she had lived in the trailer for thirteen years at the time of the offense.

Shawn Howard, the defendant's nephew, recalled having a telephone conversation with Vanessa on the day in question, at which point she stated that she and the defendant had an altercation that day. Howard testified that he called the defendant and called Vanessa back on a three-way call. He further testified that while he was on the phone, he could hear what he believed to be someone beating on the door. The defendant informed him that it was the victim beating on the door. Howard then heard the "other party" say, "I told you I was going to 'F' you up if you mess with my momma again." He then heard a perceived scuffle just before the phone call was discontinued.

The defendant testified that after Vanessa arrived home on the day in question they "had some words" over something trivial. He noted that he must have said something to upset Vanessa, adding, "[s]he could be really very disrespectful when she want to..." (R. 267). He explained that he grabbed her hand and wrist and pushed her after she ran up to him, describing her actions as a "get-in-your-face-type thing[.]" (R. 267). According to the defendant, the argument continued for a few minutes before he went outside to the shed. Vanessa left after telling the defendant that she was going to her mother's house.

The defendant further testified that he was on the telephone with Howard before the victim arrived. He noted that Howard also called Vanessa and set up a three-way call, though Vanessa was unaware that the defendant was listening as she spoke to Howard. He further testified that he was still on the phone with Howard when the victim arrived and began beating on the door. He contended that he opened the door to prevent the victim from tearing it up, claiming that the victim was repeatedly kicking the door before he opened it. He testified that he knew it was the victim, stating, "He said he was going to 'F' me up, f*** me up, kill me, and whatever." The defendant further testified that as he was in the process of opening the door, the victim ran inside, and the defendant told the victim, "man, chill out." The defendant added, "...this cat is in so much rage that, you know, he like -- the dude is spooking me now, you know, so in the process of this - in the process of this, I steps back. When I steps back, I steps back to the back to like go toward the kitchen." The defendant testified that the victim remained in his face as he begged him to leave. The defendant added, "His thing was I'm going to f*** you up; I'm going to kill you." The defendant testified that there had been no physical contact by that point.

After backing up, the defendant saw the knife "laying on the counter," picked it up, and swung it in an attempt to "spook this guy off." The defendant stated that when he swung the knife, the victim began backing up toward the door. The defendant further stated, "...when we get to the door seal, right in the door seal, for some crazy, for some strange reason the dude just like bum-rushed me. So when he run into me, I'm running into him." He further stated, "...what I was trying to only do was get this guy off me, and then we - and when he body hugged me, I run into him; we fall off the porch." The defendant testified that he and the victim then scuffled on the ground, and when the defendant stood up, the victim did not. He stated that Vanessa arrived a few minutes after he got up from the ground, followed by the police and an ambulance.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. Thus, an appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. Williams, 804 So.2d at 939. Regarding the defendant's claim that he acted in self-defense, the relevant inquiry on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense. Id.

The defendant's rendition of the facts significantly shifted from the point of his post-arrest interview to his trial testimony. While his post-arrest interview indicated that the victim "bum-rushed" him immediately after entering the mobile home, followed by a physical struggle therein, by the time of the trial the defendant indicated that the struggle abruptly began as the victim was proceeding to exit the mobile home. Further, while the defendant maintained at trial that Vanessa arrived after the stabbing, during the interview, he repeatedly accused Vanessa of bringing the victim to the home to initiate the confrontation. The defendant specifically contemplated as to why Vanessa would bring the victim over there after her altercation with the defendant, surmising, "I guess she thought that he was going to kick my ass." During her interview at the scene with Detective Graves and during her trial testimony, Vanessa indicated that she and the victim arrived at the scene at the same time, consistent with the defendant's post-arrest interview statements. Vanessa further stated that the next door neighbor's yard was immediately adjacent to theirs and that she observed the victim from the point that he exited his vehicle and approached the porch, to the point that the defendant darted out of the front door and attacked the victim, stabbing him repeatedly. Thus, the evidence supports a finding that the defendant was the aggressor in this case and, therefore, cannot claim the right of self-defense.

The guilty verdict in this case indicates that the trier of fact rejected the defendant's contention that he feared for his own life and stabbed the victim in self-defense. We conclude that a rational trier of fact could have found that the State established beyond a reasonable doubt that the defendant did not act in self-defense. Accordingly, we cannot say that the judge's determination was irrational under the facts and circumstances presented to him. See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the trier of fact. State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 14-2295 (La. 1/27/16), --- So.3d ----, ----, 2016 WL 314814 (per curiam). We are convinced that any rational trier of fact, viewing the evidence presented at trial in the light most favorable to the State, could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and that the offense was not committed in self-defense. Due to the foregoing conclusions, assignment of error number two lacks merit.

OTHER CRIMES EVIDENCE

In assignment of error number one the defendant challenges the State's use of other crimes evidence. The defendant notes that the State filed notice of its intent to admit evidence of other crimes pursuant to LSA-C.E. art. 404(B)(1). He further notes that the State presented testimony by Vanessa and Antoinette Green, Vanessa's cousin, to allege that two years before the instant offense, the defendant threatened the victim by pointing a gun at his head. The defendant argues that the cases relied upon by the State are not dispositive of the issue in this case. He notes that in this case, the other offense that he was accused of allegedly occurred two years before the instant offense. The defendant further contends that the circumstances of the prior and instant offense differed. Specifically, he claims that while the victim behaved menacingly toward him in the instant case, the other incident involved a fight wherein he threatened the victim with a gun. The defendant also contends that there was no reason or motive established for the prior threat and no testimony provided to establish why the altercation occurred. Thus, the defendant argues that the prior incident was not probative of motive or intent in the instant case. Further, the defendant avers that there is no allegation that the prior threat from two years ago was at all related to the instant offense or that the threat occurred for the same reason as the instant offense. The defendant argues the trial court should not have considered the prior threat when determining whether the elements of second degree murder were met in this case, nor in determining whether the State proved that the stabbing was not committed in self-defense. The defendant concludes that the other crimes evidence was not probative and should have been excluded. He contends that the error in admission was not harmless, arguing that the trial court may have found that the killing was committed in self-defense if the court had not considered the prior threat.

It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. To admit "other crimes" evidence, the State must establish that there is an independent and relevant reason for doing so, i.e. , to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act. See LSA-C.E. art. 404(B)(1) ; State v. Tilley, 99-0569 (La. 7/6/00), 767 So.2d 6, 22, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001). Further, at least one of the enumerated purposes in Article 404(B)(1) must have substantial relevance independent from showing the defendant's general criminal character in that it tends to prove a material fact genuinely at issue. When the element of intent is regarded as an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crimes to show the intent with which the act charged was committed. See State v. Jackson, 625 So.2d 146, 150 (1993). Motive evidence reveals the state of mind or emotion that influenced the defendant to desire the result of the charged crime. To have independent relevance, the motive established by the other crimes evidence must be more than a general one, such as gaining wealth, which could be the underlying basis for almost any crime; it must be a motive factually peculiar to the victim and the charged crime. State v. McArthur, 97-2918 (La. 10/20/98), 719 So.2d 1037, 1041.

Additionally, the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. LSA-C.E. art. 403. Separate and apart from the showing of relevancy and prejudice, the State must also prove the defendant committed the other acts and satisfy the requirements set forth in State v. Prieur, 277 So.2d 126 (1973) and Article 404(B)(1), i.e. , upon request by the defendant, the State must provide the defendant with notice before trial it intends to offer prior crimes evidence. State v. Garcia, 09-1578 (La. 11/16/12), 108 So.3d 1, 39, cert. denied, 570 U.S. 926, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013).

In Garcia, the Court used a gatekeeping analysis and an abuse of discretion standard in reviewing the admission of other crimes evidence, to-wit:

Logically, it falls to the trial court in its gatekeeping function to determine the independent relevancy of [evidence of other crimes, wrongs, or acts] and balance its probative value against its prejudicial effect. Upon finding such relevance, the court must then balance all the pertinent factors weighing in favor of and against its admissibility. In this analysis, the court seeks to answer the question: Is this evidence so related to the crime on trial or a material issue or defense therein that, if admitted, its relevancy will outweigh the prejudicial effect, which the defendant will necessarily be burdened with?
The trial court's answer to this question and its corresponding ruling on the admissibility of the additional other crimes evidence will not be disturbed absent an abuse of discretion.

Garcia, 108 So.3d at 39 (citations omitted).

Herein, prior to the trial, the State filed notice of its intent to introduce the other crimes evidence at issue and the defendant filed a motion in limine seeking to exclude the testimony. At the conclusion of the pretrial hearing, the trial court denied the defendant's motion in limine and ruled in favor of the State. The trial court found that the testimony was relevant to provide context for the killing, noting that the defendant was claiming self-defense.

We agree with the trial court in finding the other crimes evidence was materially relevant. Herein, the defendant identified the victim as the aggressor, indicating that he, the defendant, acted in fear in stabbing the victim. On the other hand, there was testimony indicating that the defendant stated before the stabbing that he would kill the victim if he came to the home on the day in question. We find that the evidence regarding the defendant's past threats and physical actions pertaining to the victim was independently relevant to show intent and absence of mistake or accident. Because the defendant claimed he was acting in self-defense, the evidence of the older threats and physical attack was relevant to show he in fact intended to kill the victim and did not commit the offense in self-defense. The defendant's propensity to take actions such as holding a gun to the victim's head and verbally threatening to kill the victim were also relevant to show motive. We note that the trial judge heard detailed accounts of each incident separately, including the defendant's own pretrial statements and trial testimony, and we find no danger of confusing the circumstances. When the probative value of the other crimes evidence is balanced against its prejudicial effect, we find the evidence was properly admitted because it was not unduly or unfairly prejudicial. Accordingly, the trial court did not abuse its discretion in allowing the other crimes evidence to be admitted at trial or in denying the defendant's motion in limine. Considering the foregoing, assignment of error number one is without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      In a separate grand jury indictment, the defendant was charged with domestic abuse battery in violation of LSA-R.S. 14:35.3. See State v. Jackson, 2018-0262 (La.App. 1 Cir. 11/2/18), 265 So.2d 928. The State combined the charges for trial. However, the State nol-prossed the charge domestic abuse battery charge (in 2018-KA-0262) after the bench trial. Thus, there are no issues assigned in that appeal.

      Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      Later in the interview, he again used the term "shoving match," at that point to describe an altercation in the mobile home with the victim. At approximately thirty-two minutes into the interview, the defendant began accusing Vanessa of planning the altercation with the victim, stating that when he looked out of the window (after the victim began kicking the door), he saw both Vanessa's car and the victim's car outside, which led him to believe that Vanessa brought the victim there to confront him.

      Early in the interview, the defendant indicated that he did not plan to stab the victim, but initially picked up the knife in an attempt to protect himself and "scare him [the victim] off," as the victim kept trying to punch the defendant. At the end of the interview, the defendant stated that he was unsure as to why he picked up the knife.

      The defendant specifically stated, in part, "Before I know'd it [sic], you know trying to save myself, I guess I must have, well not guess I did, it's obvious I did, I cut him, I guess I cut him."

      Noting that the victim had a low level of Hydrocodone in his system (less than 0.05 micrograms/ml) at the time of the autopsy, the State introduced a pill bottle for Hydrocodone prescribed in the victim's name on October 29, 2014. Vanessa confirmed that the victim had a tooth pulled on October 29, 2014, six days before he was stabbed to death.

      During the trial, Vanessa was not questioned as to whether she spoke to Howard on the day in question.

      The defendant confirmed that his criminal history included a felony theft and burglary offense.

      McArthur is superseded by LSA-C.E. art. 412.2 only with respect to other crimes evidence of sexually assaultive behavior. See State v. Wright, 11-0141 (La. 12/6/11), 79 So.3d 309, 316-17.

      We note that at trial, the defendant testified that he initially swung the knife in an attempt to scare the victim, and indicated that he and the victim were scuffling on the ground when the victim was stabbed.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    IN RE: RIVER STREET VENTURES, L.L.C.
    NO. 18-CA-210
    Court of Appeal of Louisiana, Fifth Circuit.
    January 30, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, RIVER STREET VENTURES, L.L.C., Richard R. Schulze, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, RICK ESPADRON LOMBARD, Donald C. Douglas, Jr., Robert G. Harvey, Sr.
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

Appellant, Rick Espadron Lombard, appeals the trial court's December 1, 2017 judgment granting an application for writ of quo warranto regarding the membership in a limited liability company, and the trial court's denial of appellant's motion for new trial. For the reasons stated herein, we reverse the trial court's denial of appellant's motion for new trial and the December 1, 2017 judgment, grant appellant's motion for new trial, and remand for further proceedings.

Procedural History and Facts

On October 13, 2017, appellee, River Street Ventures, LLC, filed an application for writ of quo warranto contending that appellant "is not and has never been a member of River Street Ventures." Appellee requested that a writ of quo warranto be directed to appellant to show by what authority he claimed to be an agent and/or member of River Street Ventures. Appellee further requested the trial court grant judgment in its favor declaring that: (1) appellant does not have any legal right to claim the position of an agent, officer, and/or member of River Street Ventures and prohibit appellant from claiming or exercising any right, power, privilege, or authority of said positions; and (2) Mike Ambrosio, Philip Spiegleman, and Craig Studnicky are the sole managers of River Street Ventures. The quo warranto evidentiary hearing was set for November 30, 2017 (hereafter the "quo warranto hearing").

Appellee filed a motion and order to appoint special process server after the sheriff was unable to serve appellant, which was granted by the trial court. On November 16, 2017, an affidavit of service of process was filed into the record showing that appellant was personally served with the application for writ of quo warranto and the writ of quo warranto on November 8, 2017. Appellant did not file any responsive pleadings or affirmative defenses to the application for writ of quo warranto .

On November 30, 2017, appellant did not appear, and counsel for appellee proceeded with the quo warranto hearing. After considering the testimony and evidence, the trial court granted appellee's application for writ of quo warranto . The judgment was signed December 1, 2017.

Appellant filed a timely motion for new trial contending: (1) he was not served with the order setting the quo warranto hearing date; (2) the hearing date was held in violation of the time delays set by law for a writ of quo warranto ; and (3) the judgment was obtained as a result of ill practices. At the hearing on the motion for new trial (hereafter "new trial hearing"), counsel for appellant conceded that appellant received service of the quo warranto hearing date and that service was not an issue. However, counsel for appellant argued that the judgment was obtained by "ill practice" and should be set aside. Appellant contended that there was a pending writ of mandamus suit in Civil District Court in Orleans Parish filed by appellant against appellee addressing the same issue, i.e. , appellant's status as a member of River Street Ventures. He argued that counsel for appellee had full knowledge of the pending litigation in Orleans Parish as he filed exceptions in the writ of mandamus proceeding, including an exception of improper venue, issued discovery to appellant, and participated in a conference in that court. Counsel for appellant contended that he should have been notified of this proceeding and that counsel for appellee should have informed the court of the pending parallel proceeding in Civil District Court. He further argued that this case is similar to Power Mktg. Direct, Inc. v. Foster, 05-2023 (La. 09/06/06), 938 So.2d 662, wherein the Louisiana Supreme Court found that although there was notice on the defendant, grounds for ill practice under La. C.C.P. art. 2004 existed and the judgment was set aside. Counsel for appellant argued that it would be unconscionable to allow the judgment to stand when he did not have the opportunity to present defenses on behalf of appellant.

The trial court denied appellant's motion for new trial finding appellant was personally served and received actual notice of the quo warranto hearing date, and therefore he was not prevented from appearing at that hearing, nor was he deprived of his legal rights. This appeal followed.

Applicable Law

A writ of quo warranto directs an individual to show by what authority he claims or holds public office, or office in a corporation or limited liability company, or directing a corporation or limited liability company to show by what authority it exercises certain powers. La. C.C.P. art. 3901.

A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. La. C.C.P. art. 1973.

An allegation that the judgment was obtained by fraud or ill practice in a motion for new trial can constitute good cause for granting a motion for new trial. See Pollock v. Talco Midstream Assets, Ltd., 44,629 (La. App. 2 Cir. 09/23/09), 22 So.3d 1033 ; Campbell v. Select Car Co., 38,443 (La. App. 2 Cir. 05/12/04), 874 So.2d 391, writ denied, 04-1747 (La. 10/15/04), 883 So.2d 1057 ; Verret v. State Farm Mut. Auto. Ins. Co., 99-1250, 99-1251 (La. App. 3 Cir. 02/02/00), 759 So.2d 115, 123-124, writs denied, 00-0690 (La. 04/20/00), 761 So.2d 535, and 00-0673 (La. 04/20/00), 760 So.2d 1159 ; Danel v. Knek, 490 So.2d 282 (La. App. 3 Cir. 1986) ; Perrodin v. Zander, 441 So.2d 12, 17 (La. App. 3 Cir. 1983), writ denied, 444 So.2d 120 (La. 1984).

Discussion

In his first assignment of error, appellant contends that the trial court erred in denying his motion for new trial because the December 1, 2017 judgment was obtained by an "ill practice" based on the failure of appellee to notify appellant's counsel of the quo warranto hearing notwithstanding service on appellant, and therefore, the judgment must be set aside.

Appellant's motion for new trial asserted: (1) appellee's counsel filed this writ of quo warranto on October 13, 2017 and proceeded to hold a hearing on November 30, 2017; (2) at the time this lawsuit was filed, there was a pending lawsuit in Civil District Court in Orleans Parish, wherein appellant filed a writ of mandamus against appellee concerning the same issue, i.e. , appellant's status as a member of River Street Ventures; (3) counsel for appellee in this litigation had full knowledge of the pending matter in Orleans Parish, as he filed exceptions to that petition, including improper venue, issued discovery requests to appellant, and participated in a conference with the trial court to reset that matter; (4) counsel for appellee was aware and had full knowledge that appellant was represented by counsel in Orleans Parish concerning this exact issue and failed to notify appellant's counsel about the quo warranto hearing date in this lawsuit; and (5) counsel for appellee failed to inform the trial court in this lawsuit that there was a pending lawsuit on the same issue in Orleans Parish and that appellant had counsel in that lawsuit. Appellant argued that counsel for appellee's knowledge of the pending parallel action and his failure to disclose this information to the trial court constituted ill practice warranting the judgment to be set aside. Therefore, appellant contended that the trial court had good cause to grant the motion for new trial.

Upon review of the record, under the facts asserted in this case, we find that the allegations as contended in appellant's motion for new trial constituted good cause to grant appellant's motion for new trial. The allegations of fact appellant relies on are documented and supported by persuasive evidence.

Additionally, at the quo warranto evidentiary hearing on the merits of the case, counsel for appellee stated that he was appearing on behalf of River Street Ventures, LLC, and stated that personal service had been made "on Mr. Lombard" by private process server. The transcript further shows the following as the court was ready to proceed with the quo warranto hearing:

THE COURT:
Okay. Let's go ahead and call them.
Let me let your opposing counsel make an appearance.
MR. SCHULZE:
There is no opposing counsel. This is my witness.
THE COURT:
We don't have opposing counsel?
MR. SCHULZE:
Mr. Espadron has not called me. He's not shown up.
Made no appearance.

The witness for River Street Ventures was then sworn and testified.

It is clear that the trial judge was misled to believe that Mr. Lombard was unrepresented, when in fact he was represented by counsel in the pending case in Civil District Court for the Parish of Orleans, in which the same dispute was also being litigated, albeit Mr. Lombard's counsel was not enrolled of record in the 24th J.D.C. case. We therefore conclude that the trial court abused its discretion in denying appellant's motion for new trial.

Accordingly, we reverse the trial court's denial of appellant's motion for new trial and the December 1, 2017 judgment, grant appellant's motion for a new trial, and remand for further proceedings.

In his second assignment of error, appellant contends that the trial court erred in not granting the motion for new trial and striking the December 1, 2017 judgment because service on appellant was insufficient and not timely. Based on appellant's assertion in the trial court that service was not an issue and appellant received service of the quo warranto hearing date, appellant abandoned this argument; therefore, this assignment of error is not properly before this Court. U.R.C.A., Rule 1-3.

In his third assignment of error, appellant contends that the trial court erred in entering judgment that appellant was not a member of River Street Ventures as there was a lack of evidence to support such a finding. Based on our ruling herein, we pretermit this issue.

Conclusion

For the foregoing reasons, we reverse the trial court's denial of appellant's motion for new trial and the December 1, 2017 judgment, grant appellant's motion for a new trial, and remand for further proceedings.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS

      At the new trial hearing, counsel for appellant stated "I set out the grounds. One was a service issue, which is not really where my argument is going this morning." Subsequently, counsel for appellant conceded that "Rick Lombard got service."

      While the denial of a motion for new trial is generally a non-appealable interlocutory judgment, the court may consider interlocutory judgments as part of an unrestricted appeal from a final judgment. Occidental Props. v. Zufle, 14-494 (La. App. 5 Cir. 11/25/14), 165 So.3d 124, 130-131, FN 10, writ denied, 14-2685 (La. 04/10/15), 163 So.3d 809.

      The record's Chronological Index indicates that this transcript of the quo warranto hearing was not introduced or available to the trial judge at the new trial hearing, but was first filed into the record later on February 28, 2018, with the motion for this appeal.

      We further note that at the quo warranto hearing, counsel for appellee at first referred to appellant as "Mr. Lombard" However, when the trial judge initially assumed appellee's witness to be opposing counsel, and then inquired as to whether appellant (Mr. Lombard) had counsel, appellee's counsel did not answer directly. Instead, he simply stated, "Mr. Espadron has not called me, he's not shown up. Made no appearance," and thereby avoided candidly informing the court that he knew who actually represented Mr. Lombard in this dispute, albeit not of record in this case. Having referred to appellant as Mr. Lombard throughout pleadings, and to him repeatedly as "Lombard" in memoranda, it is unlikely that this sudden reference to him as "Mr. Espadron" was accidental.

      Attorneys have a duty of candor to the court under La. St. Bar Ass'n Art. XVI § 3.3, Candor Toward the Tribunal.

      In his motion for new trial and his brief with this Court, appellant argued that the quo warranto hearing was not held within the time delays of La. C.C.P. art. 3782. Based on our ruling, we pretermit this issue.


text:
    Pastor Harry JOSEPH, Sr., Genevieve Butler, Humanitarian Enterprise of Loving People, Gulf Restoration Network, Atchafalaya Basinkeeper, and BOLD Louisiana v. SECRETARY, LOUISIANA DEPARTMENT OF NATURAL RESOURCES
    NO. 18-CA-414
    Court of Appeal of Louisiana, Fifth Circuit.
    January 30, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, PASTOR HARRY JOSEPH, SR., GENEVIEVE BUTLER, HUMANITARIAN ENTERPRISE OF LOVING PEOPLE, GULF RESTORATION NETWORK, ATCHAFALAYA BASINKEEPER, AND BOLD LOUISIANA, Elizabeth Livingston de Calderón, Lisa W. Jordan, C. Tristan Danley, Student Practitioner representing Pastor Harry Joseph, Sr. and Genevieve Butler
    COUNSEL FOR DEFENDANT/APPELLANT, STATE OF LOUISIANA, DEPARTMENT OF NATURAL RESOURCES, OFFICE OF COASTAL MANAGEMENT, Jeffrey M. Landry, Harry J. Vorhoff, Ryan M. Seidemann, Michelle M. White
    COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, BAYOU BRIDGE PIPELINE, LLC, James C. Percy, Nicole M. Duarte, Marjorie A. McKeithen
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

The Louisiana Department of Natural Resources ("DNR") and Bayou Bridge Pipeline, LLC ("Bayou Bridge") (collectively "appellants") seek review of the district court's judgment in favor of plaintiffs and remanding this matter to DNR for further proceedings as set forth in its reasons for judgment. For the following reasons, we reverse the district court's judgment and uphold the validity of the Coastal Use Permit ("permit" or "CUP") issued to Bayou Bridge for the construction and operation of a crude oil pipeline, two pump stations, and other ancillary facilities (the "proposed pipeline").

FACTS AND PROCEDURAL HISTORY

On February 22, 2016, Bayou Bridge submitted an application to DNR for a permit for the construction and operation of the proposed pipeline. The proposed pipeline is designed to safely carry 280,000 barrels or more of light or heavy crude oil per day from the existing Clifton Ridge Terminal facility in Lake Charles, Louisiana, to various existing crude oil terminals located in St. James, Louisiana. The Clifton Ridge Terminal and most of the proposed pipeline are outside the Coastal Zone. The proposed pipeline ends at existing crude oil terminals located in St. James, within the Coastal Zone. After arriving in St. James, the crude oil will be transported via other pipelines to refineries located along the Gulf Coast. One purpose of the proposed pipeline is to connect two existing oil terminals.

During its evaluation regarding whether to issue the permit, DNR made nine separate requests for additional information from Bayou Bridge before holding a public hearing in St. James Parish, Louisiana. After the public hearing, DNR received numerous comments regarding the proposed pipeline. As a result, DNR made three additional requests for information from Bayou Bridge. In addition, prior to DNR's final action on the application, the proposed pipeline obtained a permit from the Bayou Lafourche Fresh Water District to cross Bayou Lafourche. Moreover, in letters dated August 2, 2016, and February 6, 2017, St. James Parish stated that it "has no objection and supports the project." After completing a thorough analysis of the proposed pipeline and finding that Bayou Bridge has modified, avoided or reduced all adverse environmental impacts to the maximum extent practical, DNR issued the permit for the proposed pipeline on April 3, 2017.

Plaintiffs/Appellees, Harry Joseph, Sr., Genevieve Butler, Humanitarian Enterprise of Loving People, Gulf Coast Restoration Network, The Atchafalaya Basinkeeper, and BOLD Louisiana, timely filed petitions for reconsideration with DNR. The Secretary of DNR denied their petitions, but addressed the concerns raised in each petition in a written response.

On June 2, 2017, Appellees filed the instant action, a petition for judicial review, in the Twenty-Third Judicial District Court for the Parish of St. James, Louisiana, alleging that DNR had violated the Louisiana Constitution and its own Guidelines by issuing the proposed permit to Bayou Bridge. Appellees asserted that (1) DNR did not consider the potential adverse environmental impacts of the proposed pipeline on St. James Parish; (2) DNR ignored its constitutional and regulatory duties to consider the cumulative impact of the proposed pipeline on St. James Parish; (3) DNR ignored evidence that the people of St. James Parish may be trapped in the event of an emergency with no viable evacuation plan; and (4) DNR misapplied its own Guidelines.

After a hearing, the district court rendered judgment in favor of plaintiffs/appellees, and remanded the matter to DNR for reasons set forth in its reasons for judgment dated April 26, 2018. In sum, the district court found that DNR did not apply Coastal Use Guidelines 711(A) and 719(K), that these guidelines apply, and ordered Bayou Bridge "to develop effective environmental protection and emergency or contingency plans relative to evacuation in the event of a spill or other disaster, in accordance with guideline 719(K), PRIOR to the continued issuance of said permit." DNR and Bayou Bridge appealed this judgment.

ASSIGNMENTS OF ERROR

DNR presents the following assignments of error: (1) the district court erred in not deferring to DNR's findings that CUP guidelines 711(A) and 719(K) do not apply to the proposed pipeline; (2) the district court erred in finding that DNR did not comply with guideline 711(A) because it ensured that the pipeline route is, to the maximum extent practicable, either on lands 5 feet or more above sea level or otherwise within an existing utility; (3) the district court erred in finding that DNR did not comply with guideline 719(K) as it received emergency response plans for operation of the pipeline; and (4) the district court erred in finding DNR is mandated to require from Bayou Bridge an evacuation plan for the community living on Burton Lane in St. James Parish. Bayou Bridge asserts substantially similar assignments of error, including: (1) the district court erroneously held that it was arbitrary and capricious for DNR to fail to apply guideline 719(K); (2) even if guideline 719(K) applied, this guideline has been satisfied and/or is preempted, and the district court incorrectly held that it requires an evacuation plan prior to issuance of the permit; (3) the district court erroneously held that it was arbitrary and capricious for DNR to fail to apply guideline 711(A); and (4) even if guideline 711(A) applied, this guideline has been satisfied and/or is preempted. Appellees request that this Court address the issue of whether DNR violated its public trust duty and reverse and vacate DNR's issuance of the permit for the proposed pipeline.

LAW AND ANALYSIS

Judicial review of this case falls under the Louisiana Administrative Procedure Act. La. R.S. 49:950, et seq. ; La. R.S. 49:214.35F; La. R.S. 49:964. La. R.S. 49:214.35D states that "Any person authorized by this Subpart to appeal a coastal use permit decision or any local government aggrieved by a final decision on approval of a local program may seek judicial review of that decision whether or not a petition for reconsideration has been filed under this Section." La. R.S. 49:214.35E provides that "Proceedings for review may be instituted by filing a petition in the district court of the parish in which the proposed use is to be situated...."

La. Const. art. V, Sec. 16 states that "A district court shall have appellate jurisdiction as provided by law." Judicial review of an administrative agency's decision is an exercise of a district court's appellate jurisdiction pursuant to La. Const. art. V, Sec. 16 ; Metro Riverboat Assocs., Inc. v. Louisiana Gaming Control Bd., 01-0185 (La. 10/16/01), 797 So.2d 656, 660. For the purpose of this type of judicial review, district courts are courts of limited jurisdiction and only have appellate jurisdiction to review administrative decisions as provided by the legislature or constitution. Id., (citing Loop, Inc. v. Collector of Revenue , 523 So.2d 201, 203 (La. 1987) ). Thus, when reviewing a final administrative decision, the district court functions as an appellate court. Doc's Clinic, APMC v. State, through Dep't of Health & Hospitals, 07-480 (La. App. 1 Cir. 11/2/07), 984 So.2d 711, writ denied, 07-2302 (La. 2/15/08), 974 So.2d 665 ; Bless Home Health Agency v. State, Dep't of Health and Hospitals., 99-936 (La. App. 1st Cir. 5/22/00), 770 So.2d 780. An aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal. La. R.S. 49:965.

In Metro Riverboat, the court addressed whether Metro had sought to invoke the district court's appellate jurisdiction or its original jurisdiction. See Metro Riverboat, 797 So.2d at 660. Applying that analysis here, we find that appellees sought review of DNR's decision under the district court's appellate jurisdiction. First, appellees titled their petition a "petition for judicial review." Second, in the petition, appellees assert that jurisdiction exists under La. R.S. 49:214.35D and E, which provide for judicial review of a coastal review permit decision in the district court of the parish in which the proposed use is to be situated. Id. Third, appellees' prayer asks the district court to reverse DNR's decision and vacate the permit, which indicates that appellees are seeking direct review of DNR's decision. Finally, the hearing transcript from the district court shows that the district court's review of this matter was primarily based on the record like an appellate court conducts a review. Based on this, we find the district court exercised its appellate jurisdiction under La. Const. art. V, Sec. 16 in reviewing DNR's decision to issue the permit to Bayou Bridge. Now, appellants/defendants seek review of the district court's judgment from this Court.

La. R.S. 49:964(G) states that:

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 the 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.

On review of the district court's judgment, which is one of record review and not of trial, the court of appeal owes no deference to the factual findings or legal conclusions of the district court, just as the Louisiana Supreme Court owes no deference to factual findings or legal conclusions of the court of appeal. Carpenter v. State, Dep't of Health and Hospitals., 05-1904 (La. App. 1 Cir. 9/20/06), 944 So.2d 604, 608, writ denied, 06-2804 (La. 1/26/07), 948 So.2d 174. Louisiana law provides that a reviewing court should afford considerable weight to an administrative agency's construction and interpretation of its rules and regulations adopted under a statutory scheme that the agency is entrusted to administer, and its construction and interpretation should control unless the court finds it to be arbitrary, capricious, or manifestly contrary to its rules and regulations. Ford v. State, Dep't of Health and Hospitals, 14-1262 (La. App. 4 Cir. 03/06/15), 166 So.3d 332, 337, writ denied, 15-774 (La. 6/1/15), 171 So.3d 264, citing Rachal, ex rel. Regan v. State, ex rel. Dep't of Health and Hospitals, 09-0786 (La. App. 1 Cir. 10/27/09), 29 So.3d 595, 603, writ denied, 09-2588 (La. 3/5/10), 28 So.3d 1013. Thus, the district court, as a court of record review, was constrained to afford considerable weight to DNR's reasonable construction and interpretation of its rules and regulations adopted pursuant to the Administrative Procedures Act.

If the evidence, as reasonably interpreted, supports the determination of an administrative agency, its orders are accorded great weight and will not be reversed or modified in the absence of a clear showing that the administrative action is arbitrary and capricious. Id. Hence, the test for determining whether the action is arbitrary and capricious is whether the action taken is reasonable under the circumstances. Id.

Assignment of Error One

DNR asserts the district court erred in not deferring to DNR's interpretation that guidelines 711(A) and 719(K) do not apply. For the following reasons, we find that the district court erred in substituting its conclusion for DNR's reasonable determination that guideline 711(A) is not applicable to the proposed pipeline.

Guideline 711 concerns "Surface Alteration Activities" and section (A) states that:

Industrial, commercial, urban, residential, and recreational uses are necessary to provide adequate economic growth and development. To this end, such uses will be encouraged in those areas of the coastal zone that are suitable for development. Those uses shall be consistent with the other guidelines and shall, to the maximum extent practicable, take place only:
1. on lands 5 feet or more above sea level or within fast lands; or
2. on lands which have foundation conditions sufficiently stable to support the use, and where flood and storm hazards are minimal or where protection from these hazards can be reasonably well achieved, and where the public safety would not be unreasonably endangered, and:
a. the land is already in high intensity of development use; or
b. there is adequate supporting infrastructure; or
c. the vicinity has a tradition of use for similar habitation or development.

Guideline 711(A) applies to surface alterations, which is defined as "[t]hose uses and activities which change the surface or usability of a land area or water bottom." LAC 43:1.700. Some examples of surface alterations are fill deposition, land reclamation, beach nourishment, dredging (primarily areal), clearing, draining, surface mining, construction and operation of transportation, mineral, energy and industrial facilities, and industrial, commercial, and urban developments. Id. In its reasons for judgment, the district court conceded as to guideline 711(A) "that once constructed, use of the pipeline would not result in a surface alteration." The district court, however, stated that "it cannot be disputed that once constructed, use of the pipeline could conceivably change the usability of the land."

DNR concluded that surface alterations occurring due to the proposed pipeline include "construction activities within the proposed right-of-way of the pipeline, temporary and permanent access road construction, and lands cleared for additional temporary workspaces." DNR decided that guideline 711(A) is not applicable because the surface of the land will be returned to pre-existing contour and the proposed activity is neither industrial nor commercial, specifically the project itself is not the production of goods and services, nor is it engaged in commerce.

Based on a review of the record, we cannot find DNR's conclusion that guideline 711(A) does not apply is unreasonable or arbitrary. No commercial or industrial activity will occur upon the surface of the earth because the pipeline will be completely buried. In addition, the requirement that "the surface of the land will be returned to pre-existing contour" will be satisfied as the anticipated "surface alterations" of the proposed pipeline will be eliminated once the construction activities for the pipeline are completed. The district court conceded this point in its reasons for judgment.

As to the land's usability, the pipeline is located primarily in uplands five (5) feet or more above sea level and in wetlands, where it is routed through an existing utility right-of-way. DNR concluded that the proposed pipeline makes use of existing corridors to the maximum extent practicable. DNR also considered whether the proposed pipeline could increase flood or storm damages and found that it would not increase the risk of flooding or otherwise disrupt water flow during a potential flood event. Given these findings, that the proposed pipeline will be buried a minimum of three (3) feet below the ground, and the deference to which DNR is entitled, we find that the district court erred in substituting its conclusion for DNR's reasonable determination that guideline 711(A) is not applicable to the proposed pipeline.

We also find that the district court erred in substituting its conclusion for DNR's reasonable determination that guideline 719(K) does not apply. Guideline 719 is entitled "Guidelines for Oil, Gas, and Other Mineral Activities" and 719(K) states that "Effective environmental protection and emergency or contingency plans shall be developed and complied with all mineral operations." "Oil, Gas, and Other Mineral Activities" is defined as "those uses and activities which are directly involved in the exploration, production, and refining of oil, gas, and other minerals. Examples include geophysical surveying, establishment of drill sites and access to them, drilling, on site storage of supplies, products and waste materials, production, refining, and spill cleanup." LAC 43:1.700.

As the Secretary of DNR found in his response to the Petition for Reconsideration, the above definition does not include the transportation of oil. A crude oil pipeline is not directly involved in the exploration for oil, the production of oil or the refining of oil. The transportation of oil is, at most, indirectly involved in the refining of oil but is not itself directly involved in the refining of oil. The oil will not be directly refined while it travels through the pipeline. Further, it is generally recognized that the production phase of oil and gas operations is completed upon reduction of the minerals to possession at the well. Babin v. First Energy Corp., 96-1232 (La. App. 1 Cir. 3/27/97), 693 So.2d 813, 815. Thus, a distinction between these different phases is reasonable.

Considering the pipeline is only for transportation of oil and the Louisiana jurisprudence that an "administrative agency's construction and interpretation of its rules and regulations that the agency is entrusted to administer" should control, we find the district court erred in not adopting DNR's interpretation that guideline 719(K) does not apply.

Assignments of Error Two, Three and Four

Appellants also assert that the district court erred in not recognizing that DNR

complied with guidelines 711(A) and 719(K). Because we find no error in DNR's conclusion that 711(A) does not apply, we do not address application of that provision to the proposed pipeline. However, given that the district court remanded this matter to DNR for further development of emergency response plans and appellants' assignment of error regarding the district court's remand of this case, we address DNR's obligation to require effective environmental and emergency response plans from Bayou Bridge. Given the following, the record does not support the conclusion that DNR failed to require effective environmental spill cleanup and emergency response plans for the proposed pipeline from Bayou Bridge.

As part of the application process, DNR required and obtained from Bayou Bridge a Spill Prevention and Response Plan, which provides requirements for spill prevention and response during the construction of the proposed pipeline. With respect to its operation, DNR found that "the Pipeline Hazardous Materials Safety Administration will regulate compliance and safety of interstate pipelines and the State Office of Conservation within the Department of Natural Resources will ensure safety and compliance with the regulations regarding intrastate pipelines." DNR also found that the proposed pipeline was designed to minimize spills, as well as that "in the event of an unauthorized or threatened discharge of oil an effective oil spill response will be coordinated through the Louisiana Oil Spill Coordinator's Office and the U.S. Coast Guard."

The Louisiana Oil Spill Prevention and Response Act delegates the authority to develop the State's oil spill prevention and response plan and to coordinate the operational implementation and maintenance of the oil spill prevention program to the Louisiana Oil Spill Coordinator's Office ("LOSCO"). La. R.S. 30:2451 et seq. Pursuant to La. R.S. 30:2456, the LOSCO coordinator's authority includes to "[d]evelop a statewide oil spill prevention and response plan," "[p]rovide a coordinated response effort from all appropriate state agencies" and "[c]oordinate the operational implementation and maintenance of the oil spill prevention program."

Importantly, the Act makes all emergency response and cleanup by other state agencies, like DNR, subordinate to and only as authorized by LOSCO, as it states that, "[a]ll persons and all other officers, agencies, and subdivisions of the state shall carry out response and cleanup operations related to unauthorized discharges of oil subject to the authority granted to the coordinator under this Chapter." La. R.S. 30:2462.

In directing the LOSCO coordinator to develop a state oil spill contingency plan, the Legislature directed "[t]he Department of Natural Resources, in cooperation with the coordinator, shall recommend provisions of the plan providing for protection and rehabilitation of appropriate resources under its jurisdiction." La. R.S. 30:2459. Based on this provision, the Legislature has given DNR the authority to "recommend provisions" to LOSCO for inclusion in such plans but LOSCO actually promulgates the response plan of actual or threatened oil discharges. Thus, the authority that the Appellees argue DNR has is actually delegated to another agency.

DNR cannot usurp the authority granted to LOSCO or any other state agency. With this limitation in mind, DNR requested and received from Bayou Bridge "an overview addressing how the system is safely operated and monitored and ... included response procedures that would be implemented in the rare event of a release." In accompanying correspondence, Bayou Bridge stated that,

[it] is drafting a separate Facility Response Plan (FRP) which details the procedures to be implemented in the event of an inadvertent release from the system during operations. The FRP will comply with the applicable requirements of the Oil Pollution Act of 1990 (OPA 90) and will be prepared in accordance with the National Oil and Hazardous Substances Pollution Contingency Plan, the Region 6 Contingency Plan, the Southeast Texas and Southwest Louisiana Area Contingency Plan, and the Southeast Louisiana Area Contingency Plan. An operator must submit the FRP to the Pipeline and Hazardous Materials Safety Administration (PHMSA) prior to commencing transportation of crude oil. A draft is in development, but cannot be finalized until construction is essentially complete as the plan must account for the final design and construction of the system .
With regard to emergency evacuation procedures, DNR stated that,
Neither SLCRMA nor DNR's regulations encompass emergency evacuation procedures, and DNR thus lacks both the jurisdiction and the expertise to mandate or evaluate such procedures. No such procedures are required in coastal use permits, so the lack of such a plan in the CUP is not contrary to law and evidence, nor does it require further examination of the issues and evidence.

This statement is supported by La. R.S. 29:727 and 29:729, pursuant to which parish presidents and governments are responsible for evacuations and emergency response efforts, including evacuation of residents of their parishes. In addition, there is no indication in the record that the proposed pipeline will change existing evacuation routes.

Considering the foregoing, we find DNR made a reasonable determination, within the permissible scope of its authority, that the submitted emergency response and contingency plan overview constitutes effective environmental protection and emergency or contingency plans for the proposed pipeline. Thus, we find the district court erred in remanding this matter to DNR for development of further environmental protection and emergency or contingency plans.

Appellees' Cross-Appeal

Appellees assert that DNR did not comply with its public trust obligations under La. Const. art. IX, Sec. 1 by granting the permit for the proposed pipeline and by not considering the potential impacts on the St. James community, the wetlands and drinking water crossings or alternative sites for the proposed pipeline. Given its remand of the case, the district court did not consider this argument. While an appellate court generally will not consider an issue that the district court has not addressed, we address this issue here because of the significant public interest issues at stake, the time sensitivity of this appeal, in the interests of judicial economy and efficiency and to avoid remanding this case to the district court. Further, the district court was not sitting as a trial court, but was itself a court of record review.

The Louisiana Constitution imposes a duty of environmental protection on all state agencies and officials, establishes environmental protection standards, and requires the legislature to enact laws to implement this policy. La. Const. art. IX Secs. 1 and 2 ; Save Ourselves, Inc. v. Louisiana Environmental Control Com., 452 So.2d 1152 (La. 1984). The Constitutional standard requires environmental protection "insofar as possible and consistent with the health, safety, and welfare of the people." Id. at 1157. In this regard, the Louisiana Supreme Court has stated as follows:

This is a rule of reasonableness which requires an agency or official, before granting approval of proposed action affecting the environment, to determine that adverse environmental impacts have been minimized or avoided as much as possible consistently with the public welfare. Thus, the constitution does not establish environmental protection as an exclusive goal, but requires a balancing process in which environmental costs and benefits must be given full and careful consideration along with economic, social and other factors. Id.

Based on Louisiana jurisprudence, the determination of whether DNR discharged its public trust duty in issuing the permit for the proposed pipeline depends on whether DNR considered the following: (1) whether the proposed pipeline fully minimizes adverse environmental effects; (2) whether alternate projects, alternate sites, or mitigating measures would offer more protection for the environment than the pipeline as proposed without unduly curtailing non-environmental benefits; (3) whether the potential and real adverse environmental effects of the proposed pipeline have been avoided to the maximum extent possible; and (4) whether a cost benefit analysis of the environmental impact costs balanced against the social and economic benefits of the proposed pipeline demonstrate that the latter outweighs the former. In re Rubicon, 95-108 (La. App. 1 Cir. 1996), 482 So.2d 475, 482.

In its Basis of Decision regarding issuance of the permit, the Secretary for DNR stated the following:

Considering the entirety of the Administrative Record, I make the following conclusions: (1) That the social and economic benefits outweigh the environmental costs; (2) That there are no feasible alternative projects which would offer more protection to the environment than the proposed use without unduly curtailing the non-environmental benefits; (3) That there are no alternative sites that would offer more protection to the environment than the proposed use site without unduly curtailing the non-environmental benefits; (4) That there are no further mitigating measures that would offer more protection to the environment than the use as proposed without unduly curtailing non-environmental benefits; (5) That the decision to grant this coastal use permit is consistent with the state coastal zone management program, including all applicable permit conditions relating to compensatory mitigation for unavoidable coastal resource impacts due to the use; and (6) That the decision to grant this coastal use permit is consistent with the approved local programs for affected parishes. Therefore, it is the decision of the Administrator to adopt the recommendations of [Office of Coastal Management] OCM staff that have analyzed and carefully reviewed all of the information submitted by the Applicant and the public, and to recommend issuance of this CUP with project specific conditions that bring it fully into conformance with the Guidelines outlined above.

DNR's thirty-four page Basis of Decision shows that its conclusions were made based on "thorough and careful review of the coastal use permit application, all comments, responses, data and documents submitted for consideration to this office, along with in-house data, maps, knowledge, familiarity and experience in the project area." The decision also supports DNR's finding that the applicable guidelines have been satisfied. DNR's lengthy analysis applying the guidelines in this matter involved an intensive and thorough evaluation of not only the factors identified in jurisprudence, but an even more detailed evaluation and analysis of these factors and the numerous issues related thereto. As required by guideline 701(H), we find that DNR conducted a systematic consideration of all pertinent information regarding the use, the site and the impacts of the use and a balancing of their relative significant public benefits with adverse impacts.

In addition, DNR considered alternative routes for the pipeline, as well as a no action alternative, which was rejected based on DNR's finding that the proposed pipeline "will improve overall safety to the public and environment" and "reduce crude oil shipped by truck and rail and increase the amount shipped by pipeline," which is the safest and most efficient method of crude oil transportation, according to Department of Transportation statistics. Further, during the course of the evaluation process, DNR required modifications of the proposed pipeline to avoid or minimize, to the extent practicable, environmental risks.

Viewing the record in its entirety, we do not conclude that DNR fell short in satisfying its public trust duty relative to the issuance of the permit for the proposed pipeline. There is extensive support for DNR's compliance with its public trust duty in the record, including but not limited to its Basis of Decision, the Basic Findings & Guideline Conformance Checklist, the Reconsiderations, and the handling of the public hearing and all comments arising therefrom. Thus, we find no merit to this assertion.

CONCLUSION

For the reasons stated, we reverse the district court's judgment and uphold the validity of the Coastal Use Permit issued to Bayou Bridge for the construction and operation of the proposed pipeline.

REVERSED

JOHNSON, J., DISSENTS WITH REASONS

I, respectfully, dissent from the majority opinion for the following reasons.

First, I am of the opinion that this Court's appellate jurisdiction has not been properly invoked in this matter. The trial court did not render a judgment that disposed of all of Plaintiffs' claims. As indicated in the written reasons for judgment, the trial court declined to rule on Plaintiffs' claim that the DNR violated its duty of public trust. The trial court only considered and disposed of Plaintiffs' claim that the DNR was arbitrary and capricious in its determination by failing to comply with its Coastal Use Guidelines. As such, the trial court rendered a partial judgment.

La. C.C.P. art. 1915(B) provides:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added).

La. C.C.P. art. 1911 states, "No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B)."

Here, the judgment of the trial court did not designate the May 15, 2018 partial judgment as a final judgment pursuant to La. C.C.P. art. 1915(B). While the majority opinion addresses the Appellees' claim that the DNR violated its duty of public trust, it ignores the procedural rules stated above and fails to provide any legal authority to support its appellate review of the partial final judgment rendered by the trial court. Ultimately, this Court's appellate jurisdiction has not been invoked through the judgment at bar.

Furthermore, even in addressing the merits of the case, I disagree with the majority opinion on whether DNR violated its duty of public trust. The review of the alternative sites/methods mentioned in the 34-page DNR decision was solely an analysis provided by Bayou Pipeline, which was adopted by DNR as its own conclusions. The analysis concluded that there were no lesser damaging feasible sites, location, alignments and/or alternative construction techniques that were reasonable for the proposed project. DNR's decision does not indicate that Bayou Pipeline's analysis was independently verified by DNR. Based upon Bayou Pipeline's analysis, DNR determined that the social and economic benefits to the public outweighed the environmental impacts by focusing on the revenue that will be generated with the operation of the pipeline. However, the analysis does not consider the overall welfare of the public when placing the pipeline in an area already inundated with chemical facilities.

According to La. Const. Art. IX, § 1, "The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people ." (Emphasis added). After reviewing the reasons for DNR's decision, I find that DNR's adopted decision gave significant consideration to the economic benefits and minimal consideration to the environmental effects on the wildlife and habitats; yet, it gave virtually no consideration to the impact on the human lives in that area. As a result, I find that DNR's decision was arbitrary and gave insufficient weight to the welfare of the people; thus, it was a violation of DNR's duty of public trust to issue Bayou Pipeline the coastal use permit for the pipeline.

For the foregoing reasons, I dissent from the majority opinion by finding that this Court's jurisdiction has not been invoked, and alternatively, finding that DNR violated its duty of public trust. As such, I would vacate the coastal use permit for the proposed pipeline and remand the matter to DNR for consideration of the public welfare.

      These assignments are covered under our discussion of DNR's assignments of error.

      DNR initially argues that the district court erred in not applying the proper reasonableness standard to its review of DNR's interpretation and application of its regulations. Given that the district court's review was of record, and that the court of appeal owes no deference to the district court's findings or legal conclusions, we do not think it is necessary to address this issue and thus proceed with our analysis of the litigants' assignments of error taking into consideration the deference owed to DNR's interpretation and application of its regulations.


author: LILJEBERG, J.

text:
    QUANTUM RESOURCES MANAGEMENT, L.L.C., and Milagro Producing, L.L.C. v. PIRATE LAKE OIL CORP., et al.
    NO. 18-CA-589
    Court of Appeal of Louisiana, Fifth Circuit.
    January 30, 2019
    COUNSEL FOR DEFENDANT/APPELLEE, ALLEN KENT JONES: R. Lee Eddy, III, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, PATRICK KENT LINDSEY JONES: Patrick Kent Lindsey Jones
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg
   LILJEBERG, J.

In this concursus proceeding, Patrick Kent Lindsey Jones appeals the trial court's June 18, 2018 judgment, ordering the Clerk of Court to disburse the funds remaining in the registry of the court in this proceeding to Allen Kent Jones. Allen has filed a Motion to Dismiss the appeal, arguing that the judgment at issue is interlocutory and thus, non-appealable. Finding that the judgment at issue is indeed interlocutory, we grant the motion and dismiss this appeal.

This lawsuit was filed as a concursus proceeding concerning the ownership and disbursement of revenues from oil and gas producing wells. Allen Kent Jones and his children, including Patrick Kent Lindsey Jones, were among several parties named as defendants-in-concursus in this matter, after they were identified as possibly having an ownership interest in portions of the property upon which the producing wells were situated. Concursus plaintiffs, Quantum Resources Management, L.L.C. and Milagro Producing, L.L.C., deposited production proceeds from the producing wells attributable to the disputed property into the registry of the court.

The property at issue in this matter was owned by Elizabeth Jones as her separate property until her death in 1989. Although she executed a testament bequeathing all of her property to her surviving spouse, Allen Kent Jones, Louisiana law provided at the time of her death that all children of the deceased, regardless of age, were forced heirs. In a succession proceeding, pursuant to the laws of forced heirship, Allen was placed into possession of half of Elizabeth's interest in and to the subject property in full ownership, and the Jones' three children were placed into possession of the remaining half of her interest in and to the subject property as naked owners, subject to a lifetime usufruct in favor of Allen. Based on their interests in the subject property, Allen, Patrick, and others have asserted claims to portions of the funds deposited into the registry of the court.

In Quantum Resources Management, L.L.C., et al. v. Pirate Lake Oil Corp, et al. , 12-256 (La. App. 5 Cir. 11/13/12), 105 So.3d 867, writ denied , 13-84 (La. 3/8/13), 109 So.3d 361, this Court was called on to determine whether Allen Jones, as usufructuary of the subject property, was entitled to the portion of proceeds in the registry of the court attributable to his children's naked ownership interest in and to the subject property. This Court set forth the pertinent facts involved in the dispute, analyzed the applicable law, and ultimately determined that Allen Jones, "as usufructuary, is entitled to the mineral proceeds deposited into the registry of the court in proportion to the naked owners' interest in and to the subject property." Quantum Resources Management, L.L.C. , 105 So.3d at 874.

After several years and various legal filings, on June 13, 2018, Allen filed a Motion to Disburse Funds in the Registry of the Court. On June 18, 2018, the trial court signed a judgment ordering the Clerk of Court for the 24th Judicial District Court to disburse all funds remaining in the registry of the court in this proceeding to Allen Kent Jones, pursuant to this Court's decision in Quantum Resources Management, L.L.C. , supra , which confirmed that Allen is entitled to the remaining mineral proceeds deposited in the registry of the court.

Patrick filed a Motion for Suspensive Appeal, seeking review of the June 18, 2018 judgment. The trial court granted the motion on June 26, 2018. Thereafter, Allen filed a supervisory writ with this Court seeking review of the Order granting a suspensive appeal in this matter, but this Court denied writs on August 15, 2018. Quantum Resources Management, L.L.C. v. Pirate Lake Oil Corp. , 18-C-417 (La. App. 5 Cir. 8/15/18) (unpublished writ disposition).

On October 25, 2018, Allen filed a Motion to Dismiss Lodged Appeal in this Court. We now address whether the judgment at issue is subject to review under our appellate jurisdiction.

La. C.C.P. art. 2083 provides that a final judgment is appealable in all causes in which appeals are given by law. This article further provides that an interlocutory judgment is appealable only when expressly provided by law. Bank of New York v. Holden , 15-466 (La. App. 5 Cir. 12/23/15), 182 So.3d 1206, 1208 ; Holthausen v. DMartino, L.L.C. , 11-561 (La. App. 5 Cir. 1/4/12), 86 So.3d 639, 642. A final judgment is a judgment that "determines the merits in whole or in part," and an interlocutory judgment is one that "does not determine the merits but only preliminary matters in the course of the action. La. C.C.P. art. 1841 ; Bank of New York , 182 So.3d at 1208.

In the present case, the trial court's judgment ordering the Clerk of Court to disburse all funds remaining in the registry of the court to Allen did not determine the merits of this litigation in whole or in part. Rather, it ordered action pursuant to and in accordance with this Court's prior determination of the merits. Thus, the judgment at issue is not a final judgment.

Patrick argues that this Court has already determined that the judgment is final and appealable, because this Court denied Allen's writ application seeking review of the trial court's order granting Patrick a suspensive appeal. However, a writ denial and the reasons therefor are not authoritative and do not make law. Leblanc v. 1555 Poydras Corporation , 14-610 (La. App. 4 Cir. 12/17/14), 156 So.3d 1222, 1226, writ denied , 15-82 (La. 4/2/15), 163 So.3d 796. The denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and does not bar reconsideration of the same question. Bezou v. Bezou , 15-1879 (La. App. 1 Cir. 9/16/16), 203 So.3d 488, 494, writ denied , 16-1869 (La. 12/5/16), 210 So.3d 814 ; Johnson v. Folse , 07-1031 (La. App. 5 Cir. 5/27/08), 986 So.2d 110, writ denied , 08-1377 (La. 9/26/08), 992 So.2d 991.

After further review of this matter, we conclude that the judgment at issue is not a final judgment and thus, it is not appealable. Accordingly, because we lack appellate jurisdiction in this matter, Allen's Motion to Dismiss Appeal is hereby granted, and this appeal is dismissed.

MOTION TO DISMISS GRANTED; APPEAL DISMISSED

      Some of the pertinent facts set forth herein were obtained from this Court's decision in Quantum Resources Management, L.L.C., et al. v. Pirate Lake Oil Corp, et al. , infra .