author: Judge Daniel L. Dysart

text:
    Benjamin TICKLE v. District Attorney Charles J. BALLAY, Sergeant Sidney Smith, Detective Gerald Cormier, and Agent Michael Olivier
    NO. 2018-CA-0408
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 14, 2018
    Bradley A. Pierson, Samuel J. Dileo, Jr., SAM J. DILEO, JR. AND ASSOCIATES, 1250 S.W. Railroad Avenue, Suite 100 A-1, Hammond, LA 70403, COUNSEL FOR PLAINTIFF/APPELLANT
    Glenn B. Adams, Ralph R. Alexis, III, PORTEOUS HAINKEL & JOHNSON, LLP, 704 Carondelet Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins )
   Judge Daniel L. Dysart

This is an appeal of a trial court judgment granting a peremptory exception of no cause of action filed by defendant-appellee, District Attorney Charles J. Ballay, in his official capacity as District Attorney, 25th Judicial District, State of Louisiana (hereafter, "DA Ballay"). After having conducted a de novo review of this matter, we find that the exception was properly granted. Accordingly, we affirm the trial court's judgment.

FACTS AND PROCEDURAL BACKGROUND

In this suit seeking damages for malicious prosecution, plaintiff-appellant, Benjamin Tickle, alleges that, on September 1, 2012, he, his wife and a friend had gone to the Belle Chasse ferry landing with the intention of "checking up on the post-hurricane condition of [his] property." There, they encountered several police officers. At the time, Mr. Tickle "was carrying a holstered .45 caliber Glock semi-automatic pistol clearly visible on his right hip" and one of the officers "approached him from behind and seized his weapon," refusing to return the weapon unless it was disassembled. Ultimately, Mrs. Tickle's vehicle was searched, two additional guns were found in the glove compartment and marijuana was found under the floor mat. Marijuana was also discovered in a search of Mrs. Tickle's purse. Mr. Tickle, his wife and his friend were then arrested.

Mr. Tickle was charged by bill of information dated January 3, 2013 with possession of a schedule I substance under La. R.S. 40:966, and "possession of a CDS ( La. R.S. 14:95(E)." An amended bill of information filed on January 8, 2014 charged Mr. Tickle with "Statewide Permits for Concealed Handguns ( La. R.S. 40:1379.3 (I)&(L) )." Mr. Tickle, maintaining that there had been an unlawful search in connection with his arrest, filed a Motion to Suppress the evidence, which was denied by the trial court.

Mr. Tickle was tried and acquitted of all charges and "[t]he matter ... finally disposed of in January, 2015." Mr. Tickle filed a federal lawsuit for malicious prosecution against DA Ballay in December of 2015. The federal court dismissed all claims; the state law claims were dismissed without prejudice. Mr. Tickle then filed the instant lawsuit, naming DA Ballay and several officers.

In response to the Petition for Damages ("Petition"), DA Ballay filed Peremptory Exceptions of No Cause of Action and Prescription. After a hearing, the trial court granted the exception of no cause of action, by judgment dated December 28, 2017, dismissing, with prejudice, all claims against DA Ballay, but denied the exception of prescription.

Mr. Tickle timely appealed the trial court judgment. DA Ballay answered the appeal, requesting that, in the event that the grant of the exception of no cause of action is reversed by the Court, that the exception of prescription, denied by the trial court, be considered. As we find that the exception of no cause of action was properly granted, we do not address the exception of prescription.

STANDARD OF REVIEW; PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION

A peremptory exception of no cause of action under La. C.C.P. art. 927 A(5) questions whether the law extends a remedy against a defendant to anyone under the factual allegations of a petition. Mid-S. Plumbing, LLC v. Dev. Consortium-Shelly Arms, LLC , 12-1731, p. 4 (La. App. 4 Cir. 10/23/13), 126 So.3d 732, 736. That is, "[a]n exception of no cause of action tests 'the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.' " Green v. Garcia-Victor , 17-0695, p. 4 (La. App. 4 Cir. 5/16/18), 248 So.3d 449, 453, quoting Moreno v. Entergy Corp ., 10-2281, p. 3 (La. 2/18/11), 62 So.3d 704, 706. In Green , we reiterated our well-settled jurisprudence

"In deciding an exception of no cause of action a court can consider only the petition, any amendments to the petition, and any documents attached to the petition." 2400 Canal, LLC [v. Bd. of Sup'rs of Louisiana State Univ. Agr. & Mech. Coll.] , 12-0220, p. 7 [ (La.App. 4 Cir. 11/7/12) ], 105 So.3d [819,] 825.... "The grant of the exception of no cause of action is proper when, assuming all well pleaded factual allegations of the petition and any annexed documents are true, the plaintiff is not entitled to the relief he seeks as a matter of law." Id.
Further, "any doubt must be resolved in the plaintiffs' favor." Id.

Id. , pp. 4-5, 248 So.3d at 453.

"Because exceptions of no cause of action present legal questions, they are reviewed using the de novo standard of review." New Jax Condominiums Ass'n, Inc. v. Vanderbilt New Orleans, LLC , 16-0643, p. 11 (La. App. 4 Cir. 4/26/17), 219 So.3d 471, 479, writ denied sub nom. Hew Jax Condominiums Ass'n, Inc. v. Vanderbilt New Orleans, LLC , 17-0887 (La. 9/29/17), 227 So.3d 287.

We have conducted a de novo review of the Petition and find that it fails to state a cognizable cause of action against DA Ballay. Because we affirm the grant of the exception of no cause of action, we need not address the issue of whether the trial court's denial of the peremptory exception of prescription was in error, as raised by DA Ballay, as an alternative argument, in his answer to the appeal.

DISCUSSION

As Mr. Tickle readily acknowledges, Louisiana law provides immunity to prosecutors for lawsuits alleging malicious prosecution. He contends, however, that the immunity protects prosecutors, individually, but does not protect against those claims asserted against them in their official capacity. We disagree.

The doctrine of absolute prosecutorial immunity evolved from the United States Supreme Court in the decision of Imbler v. Pachtman , 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Imbler involved a suit against a prosecutor (and others) for malicious prosecution filed pursuant to 42 U.S.C.A. § 1983. The Supreme Court, concluding that "the same considerations of public policy that underlie the common-law rule [of immunity] likewise countenance absolute immunity," noted as follows:

If a prosecutor had only a qualified immunity, the threat of [§] 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate. ... Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.

Id. , 424 U.S. at 424-25, 96 S.Ct. at 992. The Court also noted other factors which justified the doctrine of absolute immunity: "affording of only a qualified immunity to the prosecutor also could have an adverse effect upon the functioning of the criminal justice system" and "[t]he ultimate fairness of the operation of the system itself could be weakened by subjecting prosecutors to [§] 1983 liability." Id. , 424 U.S. at 426-27, 96 S.Ct. at 993. Thus, where a prosecutor's "activities [are] intimately associated with the judicial phase of the criminal process, [they are] functions to which the reasons for absolute immunity apply with full force." Id. , 424 U.S. at 430, 96 S.Ct. at 995. The Court ultimately held that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages." Id. , 424 U.S. at 431, 96 S.Ct. at 995.

The Supreme Court expounded on Imbler in numerous cases, including Buckley v. Fitzsimmons , 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), in which the Court noted situations for which absolute immunity does not protect a prosecutor, and in which a prosecutor is only entitled to a qualified immunity. The Court explained that "the Imbler approach focuses on the conduct for which immunity is claimed, not on the harm that the conduct may have caused or the question whether it was lawful." Id. , 509 U.S. at 271, 113 S.Ct. at 2615. It then found that:

[a] prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity. ... We have not retreated, however, from the principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.

Id. , 509 U.S. at 273, 113 S.Ct. at 2615. In this regard, when "a prosecutor 'functions as an administrator rather than as an officer of the court' he is entitled only to qualified immunity." Id , 509 U.S. at 273, 113 S.Ct. at 2616, quoting Imbler , 424 U.S. at 431, n. 33, 96 S.Ct. at 995, n. 33. See also , Kalina v. Fletcher , 522 U.S. 118, 131, 118 S.Ct. 502, 510, 139 L.Ed.2d 471 (1997) ("the prosecutor is fully protected by absolute immunity when performing the traditional functions of an advocate"). As example of a situation where only a qualified immunity will apply, the Buckley Court found that "[w]hen a prosecutor performs the investigative functions normally performed by a detective or police officer, it is 'neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.' " Buckley , 509 U.S. at 273, 113 S.Ct. at 2616 (internal citation omitted).

More recently, the United States Supreme Court explained that the Imbler "Court made clear that absolute immunity may not apply when a prosecutor is not acting as 'an officer of the court,' but is instead engaged in other tasks, say, investigative or administrative tasks." Van de Kamp v. Goldstein , 555 U.S. 335, 342, 129 S.Ct. 855, 861, 172 L.Ed.2d 706 (2009), citing Imbler , at 431, n. 33, 96 S.Ct. 984. The Court went on to provide further examples of when absolute immunity protects a prosecutor:

... when a prosecutor prepares to initiate a judicial proceeding, ... or appears in court to present evidence in support of a search warrant application.... We have held that absolute immunity does not apply when a prosecutor gives advice to police during a criminal investigation, ... when the prosecutor makes statements to the press, ... or when a prosecutor acts as a complaining witness in support of a warrant application.

Id. , 555 U.S. at 343, 129 S.Ct. at 861 (internal citations omitted).

Imbler was followed by the Louisiana Supreme Court in Knapper v. Connick , 96-0434 (La. 10/15/96), 681 So.2d 944. Knapper was a suit for malicious prosecution filed against a prosecutor after an application for post-conviction relief had been granted following the discovery that the initial police report, containing exculpatory evidence, had not been produced prior to the plaintiff's trial for first degree murder. Noting that Imbler is not binding precedent because it dealt with a federal statute, the Court found the "reasoning of the Court regarding absolute prosecutorial immunity [to be] persuasive. Id. , p. 5, 681 So.2d at 947. Among its considerations, the Court found that "[t]he overwhelming majority of courts in other states have extended absolute immunity to prosecutors when they are acting within their traditional roles as advocates for the state," and that "[t]he Restatement (Second) Of Torts § 656 (1970) likewise provides that a 'public prosecutor acting in his official capacity is absolutely privileged to initiate, institute, or continue criminal proceedings.' " Id. , p. 4, 681 So.2d at 947.

The Court further noted that:

Chief among the reasons most often cited for granting absolute prosecutorial immunity are concern that constant fear of later civil suits for damages may chill the vigorous prosecution of those charged with violating state statutes; that such fears may deter competent people from seeking office; and that defense of claims for malicious prosecution may drain valuable time and effort.

Id. , p. 5, 681 So.2d at 947. Moreover, even where the "prosecutorial misconduct can be proven to have been intentional and malicious, nevertheless [as the Imbler Court found,] the disadvantages that would result from any lesser form of immunity would be so substantial that absolute immunity is warranted even in cases where there is evidence of malice." Id. , pp. 6-7, 681 So.2d at 948. Thus, in Imbler , the "knowing use of false testimony before a grand jury and at trial would not defeat the absolute immunity of the prosecutor for conduct in "initiating a prosecution and presenting the state's case.' " Id. p. 7, 681 So.2d at 948.

The Knapper Court ultimately held that "a prosecutor acting within the scope of his prosecutorial duties as an advocate for the state is entitled to absolute immunity from suit for malicious prosecution as a consequence of conduct intimately associated with the judicial phase of the criminal process." Id. , p. 11, 681 So.2d at 951. Thus, prosecutors have "absolute immunity from claims of prosecutorial misconduct" arising out of the judicial phase of prosecuting criminal cases "and for ... conduct falling within the course and scope of their prosecutorial functions." Hayes v. Par. of Orleans , 98-2388 (La. App. 4 Cir. 6/16/99), 737 So.2d 959, 961. Consistent with the Imbler case, the Hayes Court noted that the immunity "extends even to prosecutorial actions taken in bad faith or with malice." Id.

Our case law is replete with decisions upholding the absolute immunity of prosecutors for malicious prosecution where the claims asserted arise from conduct within the role of the prosecutors. See , e.g. , Ballard v. Waitz , 06-0307 (La. App. 1 Cir. 12/28/06), 951 So.2d 335, 338 (where the district attorney failed to timely set an arraignment, resulting in a lengthy detainment, "the district attorney ... is afforded absolute immunity .... [T]he claim that the district attorney failed to set [the] arraignment within the thirty-day time frame provided by LSA-C.Cr.P. art. 701(C), is clearly an action that occurred after his indictment, and in connection with judicial proceedings, as opposed to administrative or investigative functions."); Colquitt v. Claiborne Par., Louisiana , 36,260 (La. App. 2 Cir. 8/14/02), 823 So.2d 1103, 1105 (in suit against district attorney for alleged violation of right to speedy trial, these allegedly "improper acts by the district attorney[,] undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur[ed] in the course of his role as an advocate for the state, are entitled to prosecutorial immunity that has been termed absolute."); Keller v. McElveen , 98-812 (La. App. 3 Cir. 6/2/99), 744 So.2d 643, 648-49, upholding an exception of no cause of action against a district attorney for his failure to remove the name of the plaintiff from a national crime database after charges against her had been dismissed ("[w]hile this paperwork or communication is incrementally attenuated from the actual decision to dismiss the charges, a function undoubtedly prosecutorial, we conclude that it is still an extension of the prosecutorial duty and not the type of administrative function that does not afford absolute immunity. The communication is intimately associated with the function of a prosecutor, as a prosecutor, in a criminal matter."); Fine v. Senette , 97-1851 (La. App. 1 Cir. 6/29/98), 714 So.2d 1263, 1265, upholding a summary judgment dismissing claims against a district attorney who allegedly provided a parole board with false information at a clemency hearing ("the requisite communications between the prosecutor and clemency authorities, as a portion of the sentencing process, are within the scope of the prosecutor's role as an advocate for the state and are entitled to absolute immunity.").

Mr. Tickle urges this Court to adopt an exception to the rule of absolute immunity for a prosecutor when the claims are asserted against him "in his official capacity." In support of his position, he cites Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985), which noted a "distinction between personal - and official-capacity suits." This language in Graham is not decisive of the issue in the instant matter. Unlike the instant matter, Graham arose in the context of an alleged violation of a federal law, 42 U.S.C. § 1983, which provides the basis for a civil action for damages for the deprivation of rights. In this case, no federal claims were asserted; Mr. Tickle's Petition "seeks damages for malicious prosecution under Louisiana law."

More importantly, even if this Court were to apply the rationale of Graham to a claim for malicious prosecution under state law, Graham would still support the grant of an exception of no cause of action. At issue in Graham was whether attorney's fees are recoverable by a party who prevails in a civil rights action under 42 U.S.C. § 1988. Graham did not involve a suit against a prosecuting attorney; it was a suit against the commissioner of police and the Commonwealth of Kentucky for damages from several arrestees who claimed to have been "severely beaten, terrorized, illegally searched, and falsely arrested" in connection with a murder investigation. Id. , 473 U.S. at 161, 105 S.Ct. at 3103. The trial court dismissed the Commonwealth of Kentucky based on the immunity afforded by the Eleventh Amendment to the Constitution. Suit was then settled on the second day of trial, after which the plaintiffs moved for, and were granted, an award of attorney's fees against the Commonwealth of Kentucky under § 1988.

The Supreme Court noted a distinction between "[p]ersonal-capacity suits [which] seek to impose personal liability upon a government official for actions he takes under color of state law" and "[o]fficial-capacity suits, in contrast, [which] 'generally represent only another way of pleading an action against an entity of which an officer is an agent.' " Id. , 473 U.S. at 165-66, 105 S.Ct. at 3105 (internal citations omitted). It likewise noted that "[m]ore is required in an official-capacity action ... for a governmental entity is liable under § 1983 only when the entity itself is a 'moving force' behind the deprivation, ... ; thus, in an official-capacity suit the entity's 'policy or custom' must have played a part in the violation of federal law ." Id. , 473 U.S. at 166, 105 S.Ct. at 3105. (emphasis added).

The Court ultimately concluded that despite having named the police commissioner "in both his 'individual' and 'official' capacities," the suit was, in actuality, an individual-capacity suit. Id. , 473 U.S. at 169, 105 S.Ct. at 3107. Finding that "an official-capacity action for damages could not have been maintained against [the commissioner] in federal court," the plaintiffs could not circumvent "this same end simply by suing State officials in their official capacity." Id. , 473 U.S. at 170, 105 S.Ct. at 3107.

As Graham makes clear, the mere use of the words "in his official capacity" does not transform a suit into an "official-capacity" suit. Indeed, " Will v. Michigan Dept. of State Police , 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45, (1989), ... makes clear that the distinction between official-capacity suits and personal-capacity suits is more than 'a mere pleading device.' " Hafer , 502 U.S. at 27, 112 S.Ct. at 362.

This Court has followed the Graham decision for the principle that "[b]ecause the real party in interest in an 'official capacity' suit is the governmental entity, and not the named official, the entity's policy or custom must have played a part in the violation of federal law."

Sommer v. State, Dep't of Transp. & Dev ., 97-1929, p. 20 (La. App. 4 Cir. 3/29/00), 758 So.2d 923, 936 ; See also , Trantham v. City of Baker , 10-1695 (La. App. 1 Cir. 3/25/11), 2011 WL 1103628 at *3 ("Claims brought under § 1983 against a defendant in his individual capacity require a showing that the official, acting under color of state law, deprived the plaintiff of a federal right .... When bringing suit against persons in their official capacity, a plaintiff must make a more significant showing than when he sues an individual defendant, showing that the governmental entity's policy or custom played a part in the violation of federal law.")

In this matter, all of Mr. Tickle's claims pertain to DA Ballay's alleged conduct in "initiating a prosecution and presenting the state's case." He cites no governmental 'policy or custom' which played a part in any alleged violation. The Petition first recites the circumstances leading to Mr. Tickle's arrest on September 1, 2012 and the alleged misdeeds of the arresting police officers. The Petition then alleges the following facts:

- The Plaquemines Parish District Attorney's office instituted charges against Mr. Tickle by way of a Bill of Information filed on January 3, 2013, and the "criminal proceeding lasted over two years;"
- Defense counsel filed a motion to suppress, which was denied; a supervisory writ to this Court was likewise denied;
- An amended bill of information was filed on January 8, 2013;
- After a trial on the merits, Mr. Tickle was acquitted of all charges.

Mr. Tickle's suit is not against DA Ballay; there are no specific allegations against DA Ballay. Rather, DA Ballay was named "in his official capacity." The Petition contains allegations against the district attorney's office; namely:

- The "criminal proceeding was begun and maintained by the District Attorney's office"
- The District Attorney's Office did not have probable cause to begin the suit, due to all illegal behavior being committed by Mrs. Tickle;" a fact "known not later than her conviction."

Mr. Tickle alleges that "[m]alice is here [sic] inferable from the prosecution's zeal in pursuing this matter despite the manner in which the arrest took place, from the reach of their arguments on appeal of the motion to suppress, and their [sic] disregard for the inconsistent police reports and testimony of the police witnesses at trial."

It is clear that all of Mr. Tickle's allegations against DA Ballay (and the district attorney's office, in general) arise from of actions taken by the district attorney's office in the prosecution of criminal charges against him. As such, they clearly fall within the realm of prosecutorial immunity for activities intimately associated with the judicial phase of the criminal process. Mr. Tickle does not point to any action on the district attorney's office that is outside the scope of the prosecution of the case.

Even were we to assume, as Mr. Tickle maintains, that there was a lack of probable cause for pursuing criminal proceedings, this claim, too, falls within the ambit of prosecutorial immunity. Mr. Tickle has not articulated how the pursuit of criminal charges against him cannot be considered to "fall within the scope of the prosecutor's role as an advocate for the state" which, as the Knapper Court found, is the basis for "granting absolute immunity to prosecutors from malicious prosecution suits." Knapper , 96-0434, p. 10 (La. 10/15/96), 681 So.2d at 950. Hayes , 98-2388, 737 So.2d at 960. Moreover, as this Court indicated in Hayes , "conduct falling within the course and scope of their prosecutorial functions" is entitled to immunity "even to prosecutorial actions taken in bad faith or with malice." Hayes , 98-2388, 737 So.2d at 961.

Accordingly, we find that, under the circumstances of this case, DA Ballay (in his official capacity as District Attorney, 25th JDC) has prosecutorial immunity for all of the allegations asserted against him. As such, the trial court properly granted the exception of no cause of action.

We need not reach the issue of whether, as Mr. Tickle suggests, at the hearing on the exceptions, the trial court improperly considered the outcome of the preliminary examination in the criminal proceeding. We note that, aside from argument of counsel, there is nothing in the record which demonstrates that the trial court's ruling was based on the finding of probable cause in the criminal matter. There is no transcript of the hearing in the record and the judgment does not contain any reference to the preliminary examination. Nor were any reasons for judgment issued which indicate that the court's ruling was in any way based on a probable cause finding. The only reference is in a minute entry which states that "[t]he Court addressed the parties regarding probable cause found by Judge Clement." This issue is, therefore, not before this Court. See , e.g. , Perez v. Evenstar, Inc. , 12-094, p. 12 (La. App. 4 Cir. 1/30/13), 108 So.3d 898, 906 ("It is well established that as a general matter, appellate courts will not consider issues ... which the trial court has not addressed")(internal citations omitted).

As a final note, we are cognizant that La. C.C.P. art. 934 authorizes a trial court to allow a plaintiff to amend his petition when it fails to state a cause of action and the grounds for the objection can be removed by amendment. See Ocwen Loan Servicing, LLC v. Porter , 18-0187, p. 9 (La. App. 4 Cir. 5/23/18), 248 So.3d 491, 498 ("when a plaintiff's petition fails to state a cause of action the plaintiff is entitled to an opportunity to remove the grounds for the exception by amending its petition."). However, our jurisprudence indicates that "[t]he right to amend a petition following the sustaining of a peremptory exception is not absolute." Hershberger v. LKM Chinese, L.L.C ., 14-1079, p. 6 (La. App. 4 Cir. 5/20/15), 172 So.3d 140, 145. "Amendment is not permitted when it would constitute a 'vain and useless act.' " Id. , quoting Smith v. State Farm Ins. Companies , 03-1580, p. 6 (La. App. 4 Cir. 3/3/04), 869 So.2d 909, 913. See also NOLA 180 v. Harrah's Operating Co., 12-0072, p. 6 (La. App. 4 Cir. 5/16/12), 94 So.3d 886, 889.

Our jurisprudence also prohibits an amendment to a petition which changes the substance of the Petition. NOLA 180 , 12-0072, pp. 6-7, 94 So.3d at 889. In, Massiha v. Beahm , 07-0137, p. 6 (La. App. 4 Cir. 8/15/07), 966 So.2d 87, 91, this Court concluded that "the petition contain[ed] nothing to clarify and thus, ... amending the petition would be a vain and useless act." In so finding, the Massiha Court relied, in part, on the decision of Gates v. Hanover Insurance Co., 218 So.2d 648, 653 (La. App. 4 Cir. 1969), which found:

We can conceive of no amendment by which their alleged cause of action against the sheriff, based on his vicarious liability as the superior officer of Deputy Mackles acting in the discharge of official duties, can be removed under our jurisprudence. In fact they do not propose to so amend but rather they propose, if allowed to do so, to change completely their basis of suit and now allege a different cause of action. They propose to allege a cause of action against the sheriff not based on his vicarious liability for the tortious acts of his deputy, but grounded on his primary liability as a tort feasor personally. This would not be an amplification or clarification of the allegations of the original petition, but a change of substance; the allegation of a different cause of action. This is not the kind of amendment contemplated by the article.

In the instant matter, we, too, can conceive of no amendment by which Mr. Tickle could state a cause of action against DA Ballay. It is clear that his complaints against DA Ballay focus solely on the decision of the district attorney's office to pursue the criminal charges against him and to prosecute him for those charges. As we have found, this conduct is clearly encompassed by the doctrine of prosecutorial immunity. We also note, as did the NOLA 180 Court, that Mr. Tickle did not request an opportunity to amend his petition.

CONCLUSION

For the reasons set forth herein, the judgment of the trial court, granting the exception of no cause of action, is affirmed.

AFFIRMED

      Mr. Tickle maintains that he holds a concealed weapons license which permitted his carrying of a concealed weapon.

      Mrs. Tickle pled guilty to simple possession of marijuana, which was affirmed by this Court after an errors patent review of the record. State v. Tickle , 14-1155 (La. App. 4 Cir. 4/15/15), 2015 WL 1775521 (unpub.).

      It is unclear to what Mr. Tickle refers by his usage of "CDS." La. R.S. 14:95 prohibits the "[i]llegal carrying of a weapon." La. R.S. 14:95 A. Subpart E sets forth the penalty for the illegal carrying of a weapon when "the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while unlawfully in the possession of a controlled dangerous substance."

      That statute provides, in pertinent part, that "[n]o individual to whom a concealed handgun permit is issued may carry and conceal such handgun while under the influence of alcohol or a controlled dangerous substance." La. R.S. 40:1379.3

      Mr. Tickle filed an application for a supervisory writ with this Court seeking review of the denial of his Motion to Suppress. This Court denied the writ application, finding that Mr. Tickle had "an adequate remedy on appeal if he is ultimately convicted." State v. Tickle , 14-K-0699 (La. App. 4 Cir. 7/8/14)(unpub.).

      The officers were dismissed from the lawsuit on March 5, 2018.

      Imbler was not the first case in which prosecutorial immunity was considered. In its review of prior case law, the Imbler Court quoted a prior decision, affirmed by the Supreme Court at 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), for the principle that "a special assistant to the Attorney General of the United States, in the performance of the duties imposed upon him by law, is immune from a civil action for malicious prosecution based on an indictment and prosecution, although it results in a verdict of not guilty rendered by a jury. The immunity is absolute, and is grounded on principles of public policy." Id. , 424 U.S. 409, 422, 96 S.Ct. 984, 991, quoting Yaselli v. Goff , 12 F.2d 396, 406 (1926).

      42 U.S.C.A. § 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...."

      In Buckley , the allegations were that the prosecutor had fabricated evidence during the initial investigation of a crime and had falsely announced the return of an indictment during a press conference.

      Every case cited by Mr. Tickle in support of this argument concerned alleged civil rights claims under 42 U.S.C. § 1983.

      In fact, the Petition specifically alleges when the suit was pending in federal court, all "federal claims were dismissed." The state law claims were also dismissed but "without prejudice to [Mr. Tickle's] right to seek available state court relief."

      At the time of the Graham decision, Section 1988 provided that "[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs" (emphasis added)." Graham , 473 U.S. at 163, 105 S.Ct. at 3104.

      "[T]he Eleventh Amendment bars a damages action against a State in federal court." Id. , 473 U.S. at 169, 105 S.Ct. at 3107.

      In Hafer v. Melo , 502 U.S. 21, 25, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991), the Supreme Court reiterated this by reaffirming the principle that "[b]ecause the real party in interest in an official-capacity suit is the governmental entity and not the named official, 'the entity's 'policy or custom' must have played a part in the violation of federal law."

      Sommer , too, was a suit brought under 42 U.S.C. § 1983 for an alleged deprivation of rights.


source: Caselaw Access Project

author: Judge Regina Bartholomew-Woods

license: Public Domain

text:
    Nikola P. VEKIC v. Dragutin POPICH, Mary A. Popich and Helen Popich Harris
    NO. 2018-CA-0426
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 14, 2018
    Kevin C. O'Bryon, Marta-Ann Schnabel, Sherry Watters, O'BRYON & SCHNABEL, PLC, 1010 Common Street, Suite 1950, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLEE
    Andy Dupre, Thomas M. Flanagan, FLANAGAN PARTNERS LLP, 201 St. Charles Avenue, Suite 2405, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods )
   Judge Regina Bartholomew-Woods

In this civil appeal, Appellee endeavors to recover interest from the original judgment, notwithstanding the fact that the trial court's original judgment was silent as to interest. On appeal from this Court, the Louisiana Supreme Court reversed this Court's prior decision, and reinstated the trial court's original judgment. Thereafter, the trial court rendered a subsequent judgment awarding Appellee the money that Appellants had placed into the registry of the court, which included monies in excess of the principal amount awarded in the original judgment. For the reasons that follow, we find that the trial court erred; accordingly, we reverse the trial court's judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In this appeal, the underlying facts are not at issue. However, the procedural history is of importance. Appellee, Nikola Vekic ("Mr. Vekic" or "Appellee"), entered into a contract to sublease oyster leases owned by Appellants, Dragutin Popich, Mary A. Popich, and Helen Popich Harris ("Popich family" or "Appellants"). After the explosion of the Deepwater Horizon, the Popich family received settlement proceeds from British Petroleum. Mr. Vekic filed suit seeking a declaratory judgment that he was entitled to the settlement proceeds. Vekic v. Popich , 2016-0508, p. 5 (La. App. 4 Cir. 3/29/17), 215 So.3d 483, 486, writ granted , 2017-0698 (La. 6/29/17), 222 So.3d 47, and rev'd , 2017-0698 (La. 10/18/17), 236 So.3d 526. The trial court ruled in favor of Mr. Vekic; however, the judgment was silent as to legal interest.

The Popich family appealed and posted a suspensive bond, which included the judgment amount, as well as legal interest. On appeal, Mr. Vekic sought a modification of the trial court's judgment to include legal interest. This Court reversed the trial court and ruled in favor of the Popich family. Thus, this Court pretermitted discussion of assignments of error that addressed attorney's fees and legal interest. Mr. Vekic took a writ of certiorari to the Louisiana Supreme Court, which granted the writ, reversed this Court, and reinstated the trial court's judgment. The Louisiana Supreme Court's judgment, however, was silent as to legal interest.

Thereafter, the Popich family moved the trial court to disburse the money in the court's registry to Mr. Vekic to satisfy the amount of the final judgment, excluding interest. Mr. Vekic argued that he was entitled to all of the money that the Popich family had deposited into the registry, including the interest. Pursuant to a consent judgment, Mr. Vekic received the amount awarded to him in the original judgment of the trial court. Subsequently, the trial court conducted a hearing to determine whether Mr. Vekic was entitled to the interest monies held in the court's registry. After the hearing, the trial court ruled that Mr. Vekic was entitled to the remaining money in the court's registry reasoning that the Popich family intended for Mr. Vekic to receive this money. It is from this ruling that the Popich family appeals.

DISCUSSION

Collectively, the Appellants' assignments of error address whether the trial court erred in adding legal interest to a final non-tort judgment after it had become final.

Standard of Review

This appeal presents a question of law. Accordingly, this Court will conduct a de novo review. Land v. Vidrine , 2010-1342, p. 4 (La. 3/15/11), 62 So.3d 36, 39.

Analysis

In the present case, Appellants posted a suspensive bond when they appealed the trial court's judgment. This Court explained that "[a] suspensive appeal bond ... will guarantee the payment of the judgment if, and to the extent that the judgment is affirmed on appeal." Wheelahan v. Wheelahan , 2000-1330, p. 2 (La. App. 4 Cir. 10/10/01), 811 So.2d 26, 28. Ultimately, the Louisiana Supreme Court reinstated the trial court's judgment, which was silent as to interest. Vekic v. Popich , 2017-0698 (La. 10/18/17), 236 So.3d 526.

"[I]t is settled [law] that interest is not due on judgments which are silent as to interest, except where specifically provided by statute. Davis v. LeBlanc,supra ; Factors & Traders Ins. Co. v. New Harbor Protection Co., 2 So. 407, 39 La. Ann. 583 (La.1887)." Williams v. Williams , 431 So.2d 780, 782 (La. Ct. App.1983). Because this matter involved a contract, rather than a tort, interest is not due because the trial court's judgment was silent as to interest. Moreover, this Court has reasoned that "[i]f a judgment is silent as to a litigated issue or a portion of the demand, that issue or demand is deemed to be rejected." Hight v. Hight , 2017-0566, p. 9 (La. App. 4 Cir. 12/13/17), 234 So.3d 1143, 1149. The Louisiana Supreme Court reinstated the trial court's judgment, but did not address Mr. Vekic's request for interest. Therefore, the issue of interest has been rejected.

On appeal, the Popich family argues that the trial court "lacks the legal power to amend a judgment, once final, to add legal interest." On March 17, 2016, the trial court rendered judgment in favor of Mr. Vekic, but was silent as to interest. On February 27, 2018, the trial court rendered judgment granting Mr. Vekic the remaining money held in the registry of the court to satisfy interest. This Court explained that "once a judgment has become final, neither the trial court nor the appellate court has the power to add interest to it." Wheelahan , 2000-1330, p. 3, 811 So.2d at 28. Mr. Vekic is not entitled to the interest or any other money placed in the registry of the court, in excess of the trial court's original judgment as reinstated by the Louisiana Supreme Court. Thus, in light of the aforementioned jurisprudential principles, we find that when the trial court awarded interest, in addition to the original money judgment, it committed error.

CONCLUSION

For the aforementioned reasons, we find that the trial court erred, and accordingly, we reverse.

REVERSED

LOBRANO, J., CONCURS IN THE RESULT.

      Pursuant to La. C.C.P. art. 2124(B)(1), the Popich family deposited $1,245,849.85 into the registry of the court; this amount included the amount of the judgment, as well as interest.

      To this end, "[w]ith the sole exception of judgments rendered in tort actions ..., in Louisiana interest is never due on a judgment unless the judgment so provides. Davis v. Le Blanc , 149 So.2d 252, 253 (La. Ct. App.1963).

      This Court has expressed that "[t]he rule that silence is considered rejection has been applied with regard to interest in holdings that money judgments do not bear interest unless specified therein even though interest may have been legally due." Garvin v. City of New Orleans , 270 So.2d 919, 920 (La. Ct. App.1972)


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    STATE of Louisiana v. Tyrone HANDY
    NO. 2016-KA-1071
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 21, 2018
    LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY, ORLEANS PARISH, DONNA ANDRIEU, Assistant District Attorney-Chief of Appeals, MICHAEL DANON, Assistant District Attorney, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE/APPELLEE
    TIMOTHY YAZBECK, SMITH & FAWER, LLC, 201 St. Charles Avenue, Suite 3702, New Orleans, Louisiana 70170, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Daniel L. Dysart )
   JAMES F. MCKAY III, CHIEF JUDGE

ON REMAND

Factual Background

In an opinion rendered September 13, 2017, this Court reversed the defendant's conviction due to an incomplete record and remanded the case for a new trial, observing:

that the discussions of the jury challenges are not available and the record does not contain any documentation, i.e., minute entries, jury strike-sheet from which it can be determined whether there was a basis for the challenge for cause that the defense brought and was improperly denied by the trial court, thereby causing the defense to exercise a peremptory challenge against a juror. The record does not contain enough information for defendant to effectively challenge the denial of his challenge for cause.

State v. Handy , 2016-1071, p. 9 (La. App. 4 Cir. 9/13/17), 226 So.3d 1182, 1190.

Following this Court's disposition of the case, the State sought rehearing to supplement the record with the trial court's jury panel sheet, which was submitted with a per curiam after this Court's decision, and a full transcript of the voir dire conducted on May 19, 2015. This Court denied rehearing.

On October 26, 2017, the State sought supervisory review in the Louisiana Supreme Court (No. 2016-KA-1070). The Supreme Court granted writs with the following order:

This matter is remanded to the court of appeal for supplementation of the record with the full transcript of the voir dire proceedings, the per curiam of the district court and the juror strike sheets, and for briefing, argument and opinion on defendant's assignment of error [number one] regarding voir dire in light of the newly supplemented material.

State v. Handy , 2017-1823, p. 1 (La. 12/15/17), 231 So.3d 609, 610.

On remand and after re-briefing, supplementation of the record and oral argument, we now reverse our prior opinion and find no merit to the defendant's assignment of error number 1.

We note that in our original opinion, this Court addressed the defendant's assignments of error numbers 2, 3, 4, 5, and 6 and found them to be without merit. The Louisiana Supreme Court, in their remand order, did not direct this Court to review these assignments of error and as such, our opinion as to these assignments of error remain valid. For the reasons set forth below, we affirm the defendant's conviction and sentence.

ASSIGNMENT OF ERROR ONE

On October 2, 2015, Tyrone Handy appealed his convictions for attempted possession with intent to distribute cocaine, possession of marijuana second offense and possession of drug paraphernalia. In the defendant's first assignment of error on appeal, the defendant argued that his right of appeal, based upon a complete record of all evidence upon which the judgment is based guaranteed under La. Const. art. 1 § 19, was violated. At that time, the court reporter could not provide a transcript of the in-chambers proceedings during which peremptory and cause challenges had been exercised because of a computer malfunction. The defendant's trial counsel certified that the defense had exhausted its peremptory challenges. The record reflected that the defense challenged potential Juror # 20 for cause and the trial judge denied the cause challenge. In addition, the State challenged potential juror # 20 for cause, which the trial court granted over defense objection.

With the record fully supplemented with a complete transcript of the voir dire , and juror strike sheet, as ordered by the Supreme Court, the trial judge's per curiam , plus the State's brief on remand and the defendant's response, the defendant has failed to show the trial court abused its discretion in denying the cause challenge.

At the outset, it should be noted that the defendant has not stated the ground(s) for his objection to Juror # 20, either before or after supplementation of the record.

La. Const. art. 1 § 19 guarantees defendants a right of appeal "based upon a complete record of all the evidence upon which the judgment is based." Additionally, La. C.Cr.P. art. 843 provides in pertinent part:

In felony cases,[...] the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

See State v. Jones , 2016-0653 (La. App. 4 Cir. 5/3/17), 220 So.3d 128, 132, reh'g denied (May 23, 2017).

La. C.Cr.P. art. 797 permits the State or the defendant to challenge a juror for cause if:

(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.

A trial judge is vested with broad discretion in ruling on challenges for cause, and such a ruling is subject to reversal only when a review of the entire voir dire reveals the judge abused his discretion. State v. Dotson , 2016-0473, p. 5 (La. 10/18/17), 234 So.3d 34, 39 (citation omitted). This standard of review is utilized "because the trial judge has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questions by the parties' attorneys." Id. , at p. 17, 234 So.3d at 45 (citations omitted). "Such expressions and intonations are not readily apparent at the appellate level where review is based on a cold record." Id.

In this case, the trial judges's per curiam adamantly states "there are no notes [in the trial court's jury sheet] documenting any noteworthy response given by the juror (Juror # 20), the court concludes that there was no reason to grant a cause challenge." See trial judge's per curiam with Jury Strike Sheets. Moreover, an evaluation of the transcript also illustrates no reason to grant a cause challenge. During the voir dire , Juror # 20 interacted with the prosecution and defense counsel three times. First, she stated she was friends with family members of both the prosecutor and defense counsel. Second, in spite of those friendships, she assured the court she could be fair and impartial if she were chosen to serve as a juror. Third, she confirmed she understood she would be required to follow the law as directed by the court, regardless of her personal feelings about the law.

This Court's original opinion in this case relied upon State v. Pinion , 2006-2346 (La. 10/26/07), 968 So.2d 131, a case in which the record contained neither a transcript of the bench conferences nor any documentation showing which jurors were challenged for cause by the defense or stricken by the defense with peremptory challenges. The Supreme Court found that although there was evidence in the record that the defense exhausted its peremptory challenges, the lack of any documentation, i.e., minutes or jury strike sheets, as to the challenges for cause, prejudiced the defendant. Id. 2006-2346, p. 9, 968 So.2d 131, 135. Therefore, the Supreme Court reversed the defendant's conviction and sentence for lack of documents in the record which would have indicated whether the trial court correctly denied any challenges for cause. Id.

However, this case is more in line with State v. Deruise , 98-0541, pp. 9-15 (La. 4/3/01), 802 So.2d 1224, 1233-1237 (missing bench conferences in which the parties made their challenges for cause and their peremptory challenges did not prejudice the defense because the record contained a jury strike sheet reflecting who challenged each prospective juror, and the transcript of voir dire revealed a substantial basis for denying a defense cause to the juror) and State v. Williams , 2006-1327 (La. App. 4 Cir. 1/23/08), 977 So.2d 160 (the defendant was not prejudiced on appeal by the lack of transcription of in-chamber portions of the jury voir dire in the record which contained detailed jury sheets that indicated the peremptory strikes for each party as well as the jurors who ultimately served on the jury or whom the defendant had to excuse peremptorily).

In light of the supplementation of this record with the full voir dire transcript, jury strike sheets and the per curiam of the trial court, the defendant has failed to show the trial judge abused his discretion by denying the defendant's challenge for cause of Juror # 20. This assignment has no merit.

CONCLUSION

Based on the above and foregoing we affirm the defendant's convictions and sentences.

AFFIRMED


text:
    Brian MULE v. ST. BERNARD PARISH FIRE DEPARTMENT
    NO. 2018-CA-0507
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 21, 2018
    Christina L. Carroll, ROBEIN URANN SPENCER PICARD & CANGEMI, APLC, 2540 Severn Avenue, Suite 400, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Richard L. Seelman, Fontana & Seelman, L.L.P., 1010 Common Street, Suite 2300, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase )
    Appellant Brian Mule, seeks review of the March 2, 2018 judgment of the Office of Workers' Compensation ("OWC"), holding that his claim for compensation against the Appellee, the St. Bernard Fire Department, was prescribed, and that the estoppel exception to prescription was inapplicable. We affirm the judgment of the OWC, finding that the decision of the OWC is not manifestly erroneous.
    FACTS AND PROCEDURAL HISTORY
    Mr. Mule was an employee of the Appellee, when, on May 22, 2009, he injured his back while transporting a patient down a set of stairs. It is uncontested that he properly reported the incident and injury to the Appellee. As a result of the incident, he received medical treatment and was restricted from work. He received epidural injections and physical therapy treatment for his injuries. Mr. Mule was paid Worker's Compensation indemnity benefits from the date of his injury through July 24, 2009, when he was released to return to work. Mr. Mule testified that he received his full pay while out from work and did not lose any of his benefits as a result of sustaining an on-duty injury.
    The record reflects that a Worker's Compensation Form 1002, a Notice of Payment form, was submitted by the Appellee to the Louisiana Workforce Commission on July 2, 2009, stating that Mr. Mule has been paid "full pay in lieu of comp." However, Mr. Mule testified no one ever explained this to him.
    Following his return to work in 2009, Mr. Mule periodically suffered with more intensive back pain, causing him to miss more time from work. He received full pay during each of these absences, as more fully described below.
    He experienced back pain in March 2011, for which he received treatment and had to miss time from work. He was diagnosed with a herniated disc. He again received full pay while absent from work in 2011. He later returned to work. In 2013, his back pain returned and he received treatment and underwent surgery, causing him to miss time from work. He continued experiencing pain and had another surgery in 2014, wherein a neuro-stimulator was implanted into his spinal cord on June 26, 2014. He returned to work on August 18, 2014. Nevertheless, Mr. Mule testified that the stimulator dislodged a few months later, causing him to have another surgery, but to no avail.
    Despite passing a functional capacity exam in December 2014, Mr. Mule was not able to return to work because he was unable to perform his job without taking pain medications. In 2016, Mr. Mule was advised by his treating neurologist, Dr. Gregory L. Fautheree, that his treatment options for pain had been exhausted and that it was best for Mr. Mule to retire. Mr. Mule did opt to retire. Thereafter, he filed a Disputed Claim for Compensation on March 16, 2017, wherein he named the Appellee as a defendant.
    A trial was held on November 30, 2017, in the OWC. Mr. Mule and Stephanie Bradbury were the only two witnesses who testified at trial. Ms. Bradbury, the insurance or risk manager for St. Bernard Parish, testified that Mr. Mule received indemnity benefits from May 22, 2009, through July 24, 2009. She explained that the Appellee and St. Bernard Parish government are self-insured. She stated that Mr. Mule received no further indemnity benefits after July 2009. She testified that she explained to Mr. Mule in 2013, when he called her seeking assistance with having his initial surgery approved, that his indemnity benefits had prescribed. She further testified that she explained to him that his indemnity or supplemental earnings benefits had prescribed when he retired in 2016. Lastly, she explained that in 2011, an internal notation was made within the file of the third party administrator, FARA/York, citing that Mr. Mule's indemnity claim had prescribed. This notation was admitted into evidence at trial.
   The OWC later ruled that Mr. Mule's right to indemnity benefits had prescribed under the Louisiana Worker's Compensation Act, and that the estoppel exception to prescription was inapplicable. Mr. Mule's claim was dismissed with prejudice.

Mr. Mule timely filed the instant appeal. He raises two assignments of error:

1. The OWC judge erred in failing to calculate the prescriptive period from the date he became disabled under La. Rev. Stat. 23: 1031(E); and
2. The OWC judge erred in holding that the estoppel exception to prescription did not apply.

STANDARD OF REVIEW

The jurisprudence is well settled that in workers' compensation cases the appropriate standard of review to be applied by an appellate court in reviewing a WCJ's factual findings is the manifest error standard. Dean v. Southmark Constr. , 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117. The Supreme Court, in Stobart v. State through Dep't of Transp. & Dev. , 617 So.2d 880, 882 (La. 1993), explained the two-part test for the reversal of a factfinder's determinations:

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

Thus, "[t]he reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous." Id.

PRESCRIPTION

Mr. Mule asserts that his herniated disc is an occupational disease, and his disputed claim for compensation was timely filed within one year of the date he became disabled from firefighting under La. Rev. Stat. 23:1031.1 (E). The Appellee notes, however, that Mr. Mule did not raise this issue before the OWC. Therefore, it argues that he is precluded from raising this issue for the first time on appeal. We agree.

Pursuant to our review of the record, Mr. Mule failed to urge that his herniated disc is an occupational disease. Mr. Mule's arguments before the OWC centered upon the denial of his request for supplemental earnings benefits (SEBs) and that the Appellee should be estopped from raising prescription. He did not address having an occupational disease at trial, or in his pre-trial statement or post-trial memorandum.

"Pursuant to Rule 1-3, Uniform Rules-Courts of Appeal, issues not raised in the district court will not be given consideration for the first time on appeal." Guillory v. City of New Orleans , 16-0638, p. 7 (La. App. 4 Cir. 8/2/17), 224 So.3d 1035, 1040, writ not considered , 18-0151 (La. 3/23/18), 238 So.3d 978 ; see also Scott v. Zaheri , 14-0726, p. 14 (La. App. 4 Cir. 12/3/14), 157 So.3d 779, 788 ("Generally, issues not raised in the trial court will not be given consideration for the first time on appeal."). Moreover, because this issue was not raised below, the record is devoid of arguments and evidence for this Court to review related to this assignment of error. Therefore, we find that Mr. Mule is precluded from raising this assignment of error as the OWC did not have an opportunity to review this issue.

ESTOPPEL

In the alternative, Mr. Mule asserts that the estoppel exception to prescription applies. He contends that he was induced by the Appellee's tender of full pay during each of his absences, which lulled him into a false sense of security about whether he should file a claim for indemnity benefits. The Appellee, in response, maintains that following July 24, 2009, all of the payments tendered to Mr. Mule were for his medical claims.

This Court has previously explained the applicability of estoppel in workers' compensation actions and what is required to prevail on an estoppel exception claim:

A workers' compensation claimant may avoid prescription by proving that his case falls under one of the 'refinements' or exceptions developed in the jurisprudence. 14 H. Alston Johnson, III, LA. CIV. L. TREATISE, WORKERS' COMPENSATION LAW AND PRACTICE § 384 (5th ed.). One such jurisprudential refinement is an estoppel exception that applies when an employer lulls an employee into a false sense of security or prevents an employee from timely filing his lawsuit. Causby v. Perque Floor Covering , 97-1235, p. 10 (La.1/21/98), 707 So.2d 23, 28 ; see also Millican [v. General Motors Corp. ,], 34,207 at p. 2, [ (La.App. 2 Cir. 11/1/00) ], 771 So.2d [234,] 235-36 ; Dupaquier v. City of New Orleans , 260 La. 728, 734, 257 So.2d 385, 387-88 (1972).
To invoke the estoppel exception, the claimant is required to establish that the employer's words, action, or inaction induced him to withhold suit until the prescriptive period has elapsed. Rambin v. Shreveport Refrigeration, Inc. , 39,592, p. 9 (La.App. 2 Cir. 05/04/05), 902 So.2d 1129, 1135 (quoting Millican , 34,207 at p. 4, 771 So.2d at 236 ); Norman v. BellSouth Telecommunications , 04-0797, p. 4 (La.App. 4 Cir. 10/27/04), 888 So.2d 340, 343 (citing Millican, supra .). The claimant is not required to establish that the employer intentionally misled him as to the nature of the benefits being paid or as to the time period available for asserting a claim. Id. When the claimant meets his burden to establish that the estoppel exception applies, "prescription is suspended or, more accurately, the employer or insurer is simply estopped to raise it as a defense." 14 H. Alston Johnson III, LA. CIV. L. TREATISE, WORKERS' COMPENSATION LAW AND PRACTICE § 384 (5th ed.).

Safford v. Hammerman & Gainer Int'l, Inc. , 16-0209, pp. 7-8 (La. App. 4 Cir. 7/20/16), 198 So.3d 227, 233-34, writ granted , 16-1591 (La. 12/16/16), 211 So.3d 1165, order recalled , 16-1591 (La. 5/3/17), 224 So.3d 946, and writ denied as improvidently granted , 16-1591 (La. 5/3/17), 224 So.3d 946.

Moreover, the OWC, citing Broussard v. Citgo Petroleum Corp. , 834 So.2d 1282 (La. App. 3 Cir. 2002) and Dupaquier v. New Orleans, 260 La. 728, 257 So.2d 385 (1972) ), noted that "[t]he Louisiana Supreme Court has held that 'payment of wages in lieu of compensation interrupts prescription for workers' compensation claims because such payments lull workers into not filing their claims within the prescriptive period. Wages in lieu of compensation are defined as unearned wages paid to an employee after an injury.' " In Dupaquier , the Supreme Court held that where a plaintiff reasonably believed that the sick leave benefits he was receiving included workers' compensation, his employer was estopped from invoking the time bar under La. R.S. 23:1209. Dupaquier, 260 La. at 734-35, 257 So.2d at 387.

In the matter sub judice , Mr. Mule waited more than seven years after this May 22, 2009 injury to pursue his claim for indemnity benefits. The OWC, having reviewed the record, exhibits and listening to the testimony of Mr. Mule and Ms. Bradbury, held that Mr. Mule did not establish that he was lulled into not filing a claim within the prescriptive period under the totality of the circumstances. We do not find that the OWC manifestly erred in so holding under the facts and evidence presented.

There is no indication that the Appellee induced Mr. Mule either intentionally or unintentionally into waiting any length of time to pursue his indemnity claim. Considering that "[t]he purpose of the one year prescriptive period is to protect employers from the burdensome litigation of stale claims," we uphold the judgment of the OWC. Dupaquier , 260 La. at 734, 257 So.2d at 387.

DECREE

For the foregoing reasons, the March 2, 2018 judgment of the Office of Worker's Compensation is affirmed.

AFFIRMED

      Rule 1-3, Uniform Rules-Courts of Appeal, states in pertinent part that "[t]he Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise."

      Moreover, we note that counsel for Mr. Mule stated at trial, "I mean, we can stipulate, but I think the claim is prescribed under the law. It's just a question of whether or not they should be stopped from raising prescription." Pursuant to La. Rev. Stat. 23:1209(A), Mr. Mule had to file his claim either within one year of the date of his work-related accident or within one year of the date the last worker's compensation payment was made.


text:
    Karen MOULTON, Individually and on Behalf of All Others Similarly Situated v. STEWART ENTERPRISES, INC., et al
    NO. 2018-CA-0178
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 28, 2018
    Andrew A. Lemmon, Scott J. Falgoust, LEMMON LAW FIRM, 15058 River Road, Hahnville, LA 70057, David T. Wissbroecker, Maxwell R. Huffman, ROBBINS GELLER RUDMAN & DOWD, LLP, 655 West Broadway, Suite 1900, San Diego, CA 92101-8498, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Steven W. Usdin, BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC, 909 Poydras Street, 24th Floor, New Orleans, LA 70112, Robert B. Bieck, Jr., Mark A. Cunningham, Alexander N. Breckinridge, V, Thomas E. Slattery, JONES WALKER LLP, 201 St. Charles Ave., 49th Floor, New Orleans, LA 70170, Edward J. Castaing, Jr., Edward J. Lilly, CRULL CASTAING & LILLY, 601 Poydras Street, Suite 2323, New Orleans, LA 70130 Pamela S. Palmer, Pro Hac Vice, PEPPER HAMILTON LLP, 350 South Grand Avenue, Two California Plaza, Suite 3400, Los Angeles, CA 90071-3427, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown )
    Judge Edwin A. Lombard Plaintiffs/Appellants, Philip Rosen and Alex Rodgers, seek review of the Amended Judgment rendered by the district court on August 14, 2017, which granted the respective motions for summary judgment of the Appellees, Mr. Stewart and Stewart Enterprises, Inc. ("STEI"), John B. Elstrott, Alden J. McDonald, Jr., Thomas M. Kitchen, Ashton J. Ryan, Jr., Ronald H. Patron and John K. Saer. For the reasons that follow, we remand this case to the district court for completion of the record.
    INCOMPLETE RECORD
    When the record was lodged in this Court, it is unclear whether the documents attached in support of the Plaintiffs/Appellants' "Omnibus Memorandum of Law in Opposition to Defendants' Motions for Summary Judgment," specifically the documents tabbed 1-51 attached to the Affidavit of Maxwell R. Huffman, were included in the record. These were documents that were filed in the Civil District Court on or about June 15, 2016 in CDC Case No. 2013-05636 c/w 2013-05887.
    On October 4, 2018, this Court ordered the Civil District Court to produce the above-referenced tabbed documents. However, the Civil District Court is unable to comply. Therefore, pursuant to La. Code Civ. Proc. art. 2161, which mandates that an appeal is not be dismissed because of an incomplete record, we remand this case to the district court for completion of the record.
    REMANDED WITH INSTRUCTIONS

      It appears that Plaintiffs/Appellants fax filed their opposition, but did not fax file the 51 tabbed attachments at issue.

      La. Code Civ. Proc. art. 2161, states in pertinent part, "An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record."


author: WHIPPLE, C.J.

text:
    BARRIERE CONSTRUCTION CO., L.L.C. v. The PARISH OF TANGIPAHOA and Beverly Construction Co., L.L.C.
    2018 CA 0279
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: September 24, 2018
    Michael R.C. Riess, Michael D. Lane, New Orleans, LA, Counsel for Plaintiff/Appellant, Barriere Construction Co., L.L.C.
    Clifton T. Speed, Greensburg, LA, Counsel for Defendant/Appellee, Parish of Tangipahoa
    Maura Z. Pelleterri, Amy S. Malish, New Orleans, LA, Counsel for Defendant/Appellee, Beverly Construction Co., L.L.C.
    BEFORE: WHIPPLE, C.J., McCLENDON, and HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

In this public bid dispute, the rejected bidder, Barriere Construction Co., L.L.C. ("Barriere"), appeals a judgment of the trial court denying its request for a preliminary injunction, seeking to enjoin and prevent the award or execution of a contract for a road improvement project to any bidder other than Barriere. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

On June 30, 2017, the Tangipahoa Parish Government (hereinafter referred to as "the parish government") issued an invitation to bid in connection with a project, entitled "Club Deluxe Road Overlay and Widening" (hereinafter referred to as "the project"). The "Information for Bidders" page provided, in pertinent part, that:

1. Receipt and Opening of Bids: The Parish of Tangipahoa (herein called the "Owner"), invites bids on the form attached hereto. All blanks must be appropriately filled in. [...]
* * * *
5. Determination of Unit and Extended Prices: In unit price bids, the total amount bid shall be in the sum of the correct extensions of the unit price bid on each item of work multiplied by the approximate quantity of work shown for the respective item. Each extension shall be carried to one hundredth of a dollar, and the last digit in the extension (or cents' place) shall not be rounded off.

(Emphasis added.)

Attached to the invitation to bid was a document titled "Louisiana Uniform Public Work Bid Form," which included a line for bidders to state their "total base bid." The form further specified that the total base bid was "[f]or all work required by the Bidding Documents (including any and all unit prices designated 'Base Bid' but not alternates) the sum of[.]" Additionally, attached to the invitation to bid was a "Unit Price Form," specifying certain quantities of required materials for the project and specifying certain work that was required for the project, wherein bidders were required to fill in the unit price for such items and the "unit price extension" for such items, defined as quantity times unit price.

On August 25, 2017, the parish government received two timely bids for the project, one from Beverly Construction Co., L.L.C. ("Beverly") and the other from Barriere. Beverly's bid provided that its total base bid amount was $5,456,580.00 and $924,848.00 for the alternate bid, resulting in a bid total of $6,381,428.00. Barriere's bid was $6,400,472.50 for the base bid and $926,735.00 for the alternate bid, resulting in a bid total of $7,327,207.50.

However, on August 28, 2017, Beverly sent a letter to the engineer acting as the parish government's representative for the project, stating that there was a "clerical error" on its bid form, namely, that the total base bid amount of $5,456,580.00 was incorrect. Beverly advised that the total base bid should have read $6,232,566.00, "per [its] units prices," and that the alternate bid price of $924,848.00 was correct, thus resulting in a bid total of $7,157,414.00. The letter further noted that even after the correction of this clerical error, Beverly's corrected base bid price of $6,232,566.00 still made it the lowest bidder. In support of its position that the parish government should consider the bid amount of $6,232,566.00 as a competitive and successful bid, Beverly cited " LSA-R.S. 38:2212 6(c)[sic]," which provides that "[i]f the public works requires unit price bids and there is a discrepancy between the base bid total and the sum of the extended unit prices, the unit price bid shall govern."See LSA-R.S. 38:2212(B)(6)(c).

Upon learning of Beverly's August 28, 2017 letter, Barriere notified the parish government that it would protest the awarding of the contract to Beverly, based on Barriere's belief that Beverly's bid was irregular and non-responsive. According to the parish government, prior to awarding the contract, the parish government consulted informally with an assistant attorney general and an engineer, and obtained a written legal opinion from the parish's district attorney's office. Thereafter, by resolution dated September 11, 2017, the parish government accepted the bid of Beverly at the stated amount of $6,232,566.00 as the lowest bid and awarded Beverly the contract.

However, prior to the signing of the contract between the parish government and Beverly, Barriere initiated this lawsuit, naming the parish government and Beverly as defendants. Barriere claimed that the project should not be awarded to Beverly because Beverly's bid was irregular and non-responsive, and the parish government had illegally exercised its discretion by modifying Beverly's written bid. Specifically, Barriere argued that Beverly's bid was non-responsive because the "Information for Bidders," as provided by the parish government to respective bidders, states that all blanks must be "appropriately" filled in and that the total amount of the bid shall be the sum of the "correct" extension of the unit prices, and that Beverly had failed to comply with these bid requirements. Barriere sought injunctive relief, seeking to enjoin and prevent the award or execution of the contract for the project to any bidder other than Barriere. Additionally, Barriere asked for an order of mandamus, declaring that Barriere, as the lowest responsible and responsive bidder, be awarded the contract, and further declaring that any contract awarded to, or signed with, any bidder other than Barriere be declared null and void. In the alternative, Barriere sought damages for loss of profits that it would have earned had it been awarded the contract for the project.

The trial court issued a temporary restraining order, enjoining the parish government from awarding a contract for the project to any bidder other than Barriere, and scheduled a hearing on Barriere's request for injunctive relief. Following a hearing on Barriere's request for injunctive relief, the trial court rendered oral reasons for judgment, denying the preliminary injunction. The trial court stated that LSA-R.S. 38:2212(B)(6)(c) was "the factor that swayed" the court, and moreover, in the instant matter, there was not a withdrawal or re-submittal of the bid, but rather a clarification of the bid in accordance with (and as permitted by) subsection (B)(6)(c) of LSA-R.S. 38:2212.

In conformity with its oral reasons for judgment, the trial court signed a judgment on October 10, 2017, denying Barriere's request for a preliminary injunction. From this judgment, Barriere appeals , asserting the following assignments of error:

(1) The trial court erred in concluding that certain mandatory requirements stated in the bidding documents were waivable.
(2) The trial court erred in concluding that the parish government has discretion under Louisiana's Public Bid Law to waive certain mandatory requirements stated in the bidding documents.
(3) The trial court erred in its interpretation of LSA-R.S. 38:2212(B)(6)(c).

APPLICABLE LAW

This case is governed by Louisiana's Public Bid Law, as set forth in LSA-R.S. 38:2211 through 38:2226. The Public Bid Law is a prohibitory law founded on public policy that mandates that all public construction contracts of major significance be let to the lowest responsible bidder. Gilchrist Construction Co. LLC v. East Feliciana Parish Police Jury, 2012-1307 (La. App. 1st Cir. 7/11/13), 122 So.3d 35, 39. The Public Bid Law serves the dual purposes of (1) eliminating fraud and favoritism, and (2) securing free and unrestricted competition among bidders, thereby avoiding undue or excessive costs. Gilchrist, 122 So.3d at 39. The provisions and requirements of the Public Bid Law, as well as those stated in the advertisement for bids and those required on the bid form, shall not be considered as informalities and shall not be waived by any public entity. LSA-R.S. 38:2212(B)(1) (formerly LSA-R.S. 38:2212(A)(l)(b)(i), see Acts 2014, No. 759, § 1). No public work may be done except as provided in the Public Bid Law, and any contravention of its provisions renders the resulting contract null and void. LSA-R.S. 38:2220. In this sense, the law severely curtails the discretion of the public entity, thereby ensuring a level playing field for all bidders and a fair and equitable means by which competing bids might be evaluated to determine the lowest responsible and responsive bidder. One bidder cannot be provided an advantage over another bidder due to a waiver. Gilchrist, 122 So.3d at 39.

ANALYSIS

The thrust of Barriere's assignments of error is that the trial court erred in finding that LSA-R.S. 38:2212(B)(6)(c) absolves Beverly for the alleged defects in its bid and allows Beverly to escape the well-established jurisprudential and legislative rule that a public entity may not waive the bid requirements, regardless of whether a requirement is substantive or non-substantive. Barriere contends that under the facts of this case, subsection (B)(6)(c) of LSA-R.S. 38:2212, which states that the unit price bid shall govern if there is a discrepancy between the base bid total and the sum of the extended unit prices, conflicts with the express language of subsection (B)(1), which, as previously stated, provides that the provisions and requirements of the Public Works Act and those stated in the bidding documents shall not be waived by any entity. Accordingly, relying on the well-established rule of statutory construction that "all laws pertaining to the same subject matter must be interpreted in pari materia, or in reference to each other," Barriere argues that subsection (B)(6)(c), which, as noted above, specifies how to resolve a discrepancy between the base bid total and the sum of the extended unit prices, applies only when the bidding documents do not require that the bids be free of calculation errors, as the bidding document herein required. Barriere also argues that subsections (C) and (D) of LSA-R.S. 38:2214 set forth the recourse available to bidders who submit a bid with calculation errors, and argues that the trial court's ruling herein completely disregards these statutory provisions and renders them meaningless and without legal effect. While acknowledging that it has no reason to believe that Beverly intentionally miscalculated its bid, Barriere avers that as a consequence of the trial court's ruling, a bidder could make substantial post-bid modifications and thereby "rig the system and guarantee it will be awarded the work, regardless of what others bidders do." We disagree.

As noted above, subsection (B)(6)(c) of LSA-R.S. 38:2212 specifically provides that "[i]f the public works requires unit price bids and there is a discrepancy between the base bid total and the sum of the extended unit prices, the unit price bid shall govern." This subsection is a result of a 2014 legislative change to the Public Works Act, and its interpretation presents a res nova issue for this court. See Acts 2014, No. 759, § 1.

According to the basic rules of statutory construction, laws on the same subject matter must be interpreted in reference to each other. LSA-C.C. art. 13. Where two statutes deal with the same subject matter, they should be harmonized if possible, as it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws. However, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. Black v. St. Tammany Parish Hospital, 2008-2670 (La. 11/6/09), 25 So.3d 711, 717-718. Applying these precepts herein, we find that subsection (B)(6)(c) of LSA-R.S. 38:2212 specifically addresses the issue presented in the instant appeal, i.e., in the case of a discrepancy between the stated base bid total and the sum of the extended unit prices, the unit price bid governs. Further, the legislature is presumed to have enacted a statute in light of the preceding statutes involving the same subject matter and court decisions construing those statutes, and where the new statute is worded differently from the preceding statute, the legislature is presumed to have intended to change the law. Hamp's Construction, 924 So.2d at 110. Accordingly, as pertinent herein, the legislature is presumed to have enacted subsection (B)(6)(c) of LSA-R.S. 38:2212 fully cognizant of the language of subsection (B)(1) (formerly subsection (A)(1)(b) ) of the same statute and LSA-R.S. 38:2214(C) and (D). Indeed, the legislature could have provided language in subsection (B)(6)(c) of LSA-R.S. 38:2212 stating that in the event of a conflict, subsection (B)(1) or LSA-R.S. 38:2214(C) and (D) would apply and be determinative. However, there is an absence of such language. Accordingly, inasmuch as subsection (B)(6)(c) of LSA-R.S. 38:2212 is specifically directed to the matter at issue in the instant appeal and is the later expression of legislative will, we conclude that the legislature has impliedly expressed an intention that this subsection is controlling in the event of a conflict between this subsection and subsection (B)(1) of the same statute and/or LSA-R.S. 38:2214(C) and (D).

Moreover, we have carefully reviewed the cases relied on by Barriere in support of its argument, wherein the Louisiana Supreme Court and this court have stated, in sum, that when a public entity elects to place certain requirements in its advertisements for bids and on its bid forms, that entity is bound by those requirements and may not choose to waive them at a later late. See Hamp's Construction, 924 So.2d at 109 ; Phylway Construction, LLC v. Terrebonne Parish Consolidated Government, 2013-1589 (La. App. 1st Cir. 9/5/14), 153 So.3d 516, 521, writ denied, 2014-2677 (La. 3/13/15), 161 So.3d 642 ;

Barriere Construction Co., LLC v. Terrebonne Parish Consolidated Government, 1999-2271 (La. App. 1st Cir. 2/18/00), 754 So.2d 1123, 1127, writ denied, 2000-0801 (La. 5/5/00), 761 So.2d 546. The statutory basis for the courts' reasoning and findings in these cases is subsection (B)(1) of LSA-R.S. 38:2212 (formerly subsection (A)(1)(b) of LSA-R.S. 38:2212 ), which states that the provisions in the bidding documents shall not be waived by any entity. Based on our conclusion above that subsection (B)(6)(c) of LSA-R.S. 38:2212, as the latest and more specific provision, governs the instant case in the event of a conflict with subsection (B)(1), we find that the cases cited by Barriere are distinguishable from the facts presented in the instant appeal.

In Phylway, this court noted that an "entity is bound by [its] advertised requirements and bid form specifications in addition to the statutory requirements and may not choose to waive them at a later date[, and this reasoning is extended] to include requirements and instructions in advertisements and bid forms that may exceed what is required by the Public Bid Law, as long as the statutory requirements are also met." (Emphasis added.) Phylway, 153 So.3d at 521. However, under the interpretation urged by Barriere, the bidding instructions at issue conflict with, rather than merely exceed, the statutory requirements and procedures set forth in the Public Bid Law. Cf. Phylway, 153 So.3d at 521. Indeed, under the interpretation urged by Barriere, the statutory provisions of LSA-R.S. 38:2212(B)(6)(c) would be abrogated or rendered meaningless to the extent that § 1, and § 5, in particular, of the "Invitation for Bidders" mandate that the bid contain the "correct" sum of the extensions, regardless of LSA-R.S. 38:2212(B)(6)(c), which inherently recognizes that there may be clerical errors of this type and provides a special rule for determining the "correct" bid amount and whether the bid qualifies as the lowest. In sum, to accept Barriere's interpretation would render this latest statutory enactment and expression of legislative will utterly meaningless and superfluous.

Last, we note that the individual extended unit prices, the sum of which were the basis of Beverly's clarified bid amount, were submitted by Beverly when it initially submitted its bid and prior to Beverly learning of the other competitive bidder's bid amount. Accordingly, in the instant case, contrary to Barriere's assertion, allowing and applying this post-bid clarification in accordance with LSA-R.S. 38:2212(B)(6)(c) will not result in the absurd result that a bidder is able to "rig the system, after learning of the other bid amounts, to guarantee that it will be awarded the work."

Under the facts of this case, we do not find that Beverly's post-bid correspondence with the parish government was a waiver of, or non-compliance with, the bid requirements in violation of Louisiana's Public Bid Law. Rather, this post-bid correspondence was a valid request for the parish government to recognize that Beverly's correct bid amount was the corrected sum of its extended unit prices, as the parish government was required to do pursuant to LSA-R.S. 38:2212(B)(6)(c). Accordingly, we find no error by the trial court in its denial of Barriere's request for injunctive relief.

CONCLUSION

For the above reasons, the October 10, 2017 judgment of the trial court, denying the preliminary injunction sought by Barrier, is hereby affirmed. All costs of this appeal are to be paid by appellant, Barriere Construction Co., L.L.C.

AFFIRMED.

McClendon, J. concurs.

      To clarify, the sum of the unit price extensions listed by Beverly on its Unit Price Form, as attached to its initially submitted bid, undisputedly totaled $6,232,566.00.

      We note that an appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction. LSA-C.C.P. art. 3612. Moreover, we note that although injunctive relief may no longer be available in the instant case as the disputed contract has been awarded and work has commenced, Barriere, as the aggrieved bidder, may be entitled to damages, and therefore, the propriety of the awarding of the contract is not mooted by the unavailability of injunctive relief in this public bid dispute. See State Machinery & Equipment Sales, Inc. v. Iberville Parish Council, 2005-2240 (La. App. 1st Cir. 12/28/06), 952 So.2d 77, 84 ; Merritt McDonald Const., Inc. v. Parish of East Baton Rouge, 98-1032 (La. App. 1st Cir. 5/14/99), 742 So.2d 564, 567, writ denied, 99-3195 (La. 1/14/00), 753 So.2d 218.

      See Hamp's Const., L.L.C. v. City of New Orleans, 2005-0489 (La. 2/22/06), 924 So.2d 104, 110-111, wherein the Supreme Court noted that:
      In accordance with the express and unambiguous language of La. R.S. 38:2212A(1)(b), any requirements of the Public Bid Law, any requirements stated in the advertisement for bid, and any requirements required on the bid form shall not be waived by the public entity. The public entity does not have the discretion to determine, after bids have been submitted, whether a requirement is substantive or non-substantive, waivable or non-waivable. Once the public entity establishes a requirement, that requirement must be uniformly followed by all bidders.

      Subsections (C) and (D) of LSA-R.S. 38:2214 provide:
      C. Bids containing patently obvious, unintentional, and substantial mechanical, clerical, or mathematical errors, or errors of unintentional omission of a substantial quantity of work, labor, material, or services made directly in the compilation of the bid, may be withdrawn by the contractor if clear and convincing sworn, written evidence of such errors is furnished to the public entity within forty-eight hours of the bid opening excluding Saturdays, Sundays, and legal holidays. Such errors must be clearly shown by objective evidence drawn from inspection of the original work papers, documents, or materials used in the preparation of the bid sought to be withdrawn. If the public entity determines that the error is a patently obvious mechanical, clerical, or mathematical error, or unintentional omission of a substantial quantity of work, labor, material, or services, as opposed to a judgment error, and that the bid was submitted in good faith it shall accept the withdrawal and return the bid security to the contractor.
      D. (1) A contractor who attempts to withdraw a bid under the provisions of this Section shall not be allowed to resubmit a bid on the project. If the bid withdrawn is the lowest bid, the next lowest bid may be accepted. If all bids are rejected no withdrawal of the bid which would result in the award of the contract on another bid of the same bidder, his partner, or to a corporation or business venture owned by or in which he has an interest shall be permitted. No bidder who is permitted to withdraw a bid shall supply any material or labor to, or perform any subcontract work agreement for, any person to whom a contract or subcontract is awarded in the performance of the contract for which the withdrawn bid was submitted.