text:
    Richard PERNICIARO & Robert Cleveland Individually and on Behalf of Paratech, LLC v. Guy MCINNIS, Ray Lauga, Jr., Casey W. Hunnicutt, Richard Lewis & St. Bernard Parish Government, et al
    NO. 2018-CA-0113
    Court of Appeal of Louisiana, Fourth Circuit.
    September 7, 2018
    Frances McGinnis, George P. Hebbler, Jr., Thomas M. Young, HEBBLER & GIORDANO, LLC, 3501 North Causeway Boulevard, Suite 400, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE
    James M. Garner, Debra J. Fischman, Joshua P. Clayton, Stuart D. Kottle, SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C., 909 Poydras Street, 28th Floor, New Orleans, LA 70112-1033, David C. Jarrell, 34TH JDC, ST. BERNARD PARISH, Travelers' 2010 Pakenham Drive, Chalmette, LA 70043, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Tiffany G. Chase )
    Judge Paula A. Brown This appeal involves an insurance policy coverage dispute between RSUI Indemnity Company ("RSUI") and its Insured, the St. Bernard Parish Government (the "SBPG") and its elected and appointed officials. The plaintiffs, ParaTech, LLC ("ParaTech"), Richard Perniciaro ("Mr. Perniciaro"), and Robert Cleveland ("Mr. Cleveland") (collectively, "the Plaintiffs") filed a petition for damages against the SBPG and several of its council members -Guy Mclnnis ("Mr. McInnis"), Ray Lauga, Jr. ("Mr. Lauga"), Casey W. Hunnicutt ("Mr. Hunnicutt"), and Richard Lewis ("Mr. Lewis") (collectively the "Parish"), and RSUI. RSUI filed a Motion for Summary Judgment contesting coverage. On September 1, 2017, the district court granted RSUI's motion for summary judgment and dismissed with prejudice all of Plaintiffs' direct action claims against RSUI. The Parish appeals, seeking review of this judgment. For the reasons set forth below, the district court's judgment is affirmed.
    FACTUAL AND PROCEDURAL HISTORY
    Mr. Perniciaro was a member/owner of ParaTech. On behalf of ParaTech, he entered into a contract with the SBPG to provide Information Technology ("IT") services to the SBPG. Mr. Perniciaro averred that on October 27, 2014, he was informed by a Council Member, Mr. McInnis, that the St. Bernard Parish Council (the "Parish Council") planned to hire Todd's Technology ("Todd's") to provide IT services and to establish a separate computer system for the Parish Council. Subsequently, between November 2014 and July 2015, the Parish Council passed several ordinances that mandated the Parish President to sign the contract with Todd's; that terminated the contract with ParaTech; that restricted ParaTech's access to the public buildings and computer systems; and that defunded the parish's IT department which resulted in ParaTech having outstanding invoices. Although the Parish President vetoed the ordinances, the Parish Council voted to override the vetoes. ParaTech's contract was officially terminated in July, 2015. The dispute between ParaTech and the Council Members was reported by news agencies-the Times Picayune and WGNO television New Orleans. Several of the Council Members were quoted in the news stories.
    On November 7, 2014, ParaTech filed, in St. Bernard Parish, a "Petition for Damages, Breach of Contract, and Request for a Temporary Restraining Order" ("Para I") against the SBPG alleging breach of contract, intentional interference with contract, negligence, and defamation. Additionally, ParaTech sought to enjoin the SBPG from contracting or commencing IT work with any person or company other than ParaTech.
    ParaTech filed an amended petition which named RSUI as a Defendant. RSUI issued a "Directors and Officers Liability Policy" to the SBPG. There were two policies issued during the relevant time period. One policy covered February 1, 2014 to February 1, 2015; the second policy covered February 1, 2015 to February 1, 2016. Both were claims-made-reported policies which contained identical pertinent language. In the policy, "Insured Persons" included the SBPG and its elected and appointed officials. The policy required RSUI to defend the Insured against any claim for which coverage applied under the policy.
    On October 27, 2015, Plaintiffs filed, in Jefferson Parish, a "Petition for Damages" ("Para II"). In Para II, the named defendants were Messrs. McInnis, Lauga, Hunnicutt, and Lewis, individually and in their capacity as council members for the SBPG, the SBPG, and RSUI. Plaintiffs alleged claims of defamation and injury against those Defendants and set forth a general allegation of "[a]ny and all other negligent and/or intentional acts perpetrated ... which will be proven or identified by discovery." Due to improper venue, Para II was dismissed without prejudice.
    On August 5, 2016, Plaintiffs filed, in St. Bernard Parish, a "Petition for Damages" ("Para III") which is the instant suit. Para III named the same parties and alleged the same causes of action as Para II. Particularly, Plaintiffs alleged Messrs. McInnis, Lauga, Hunnicutt, and Lewis, personally and as council members of the SBPG, and the SBPG were liable to Plaintiffs for negligent and/or intentional acts which included:
    • Defaming and injuring the Plaintiffs by their public statements to the press and others;
    • Defaming and injuring the Plaintiffs by entering into an illegal contract with Todd's and that contract was recorded in the public record;
    • Defaming and injuring the Plaintiffs by initiating and voting on illegal ordinances that terminated ParaTech's contract with the parish, prevented ParaTech from entering any public building in the parish, and refused to pay money owed to ParaTech all in violation of the St. Bernard Parish Charter; and
    • "Any and all other negligent and/or intentional acts... which will be proven or identified through discovery."
    Messrs. Perniciaro and Cleveland sought damages for public embarrassment and humiliation, mental anguish and anxiety, loss of income, loss of earning capacity, loss of enjoyment of life, and loss of and damage to reputation. ParaTech prayed for damages for loss of business, loss of business partners and members, and loss of and damage to its reputation in the industry.
    On March 29, 2017, RSUI filed a motion for summary judgment asserting the following grounds:
    • The SBPG untimely notified RSUI of the claims asserted by ParaTech in Para I. RSUI asserted the petition in Para I was served on November 12, 2014, but the claim was not reported to RSUI until August 31, 2015. RSUI explained the applicable policy required a claim to be reported during the policy period, not to exceed sixty days after the expiration date of the policy;
    • The claims alleged by ParaTech in Para III are deemed to be a single claim which arose in Para I. Because the single claim was untimely reported by the SBPG, RSUI did not owe the SBPG a defense; and
    • The policies excluded coverage for Plaintiffs' claims of breach of contract, defamation, and mental anguish.
    Before the hearing on the motion for summary judgment was held, the Council Members filed a motion to compel discovery and a notice to depose RSUI, pursuant to La. C.C.P. art. 1442. In response, RSUI filed a motion to quash the notice of deposition, requested a protective order, and filed an opposition to the motion to compel. On June 14, 2017, a hearing was held, and the district court rendered judgment on June 20, 2017, denying the Council Members' motion to compel, and granting RSUI's motion to quash and request for a protective order.
    On August 22, 2017, the district court heard RSUI's motion for summary judgment. The district court's judgment, rendered on September 1, 2017, provided in pertinent part:
    [T]he Court finds there is no coverage afforded to St. Bernard Parish Government, Guy McInnis, Ray Lauga, Jr., Casey W. Hunnicutt, and Richard Lewis under RSUI Directors and Officers Liability Policy no. HP655864 (2/1/2014-2/1/2015) and RSUI Directors and Officers Liability Policy no. HP661160 (2/1/2015-2/1/2016) for Plaintiffs claims, and there is a judgment herein dismissing with prejudice all claims asserted by Plaintiffs against RSUI ....
    From this judgment, the Parish appeals.
    DISCUSSION
    On appeal, the Parish assigns essentially two errors: (1) the district court erred in denying the Council Members' motion to compel discovery and request to depose RSUI, and granting RSUI's motion to quash and protective order; and (2) the district court erred in granting the summary judgment based on certain policy exclusions including excluding coverage for Plaintiffs' general tort liability claims; in considering an argument not raised by the moving party contrary to La. C.C.P. art. 966(f) ; and by finding Plaintiffs' claims asserted in Para III fell outside of the policy period.
    Discovery
    The Parish asserts the district court erred by denying the Council Member's motion to compel discovery and notice to depose RSUI and by granting RSUI's motion to quash the deposition and protective order. RSUI asserts the Parish untimely seeks review on appeal of the interlocutory rulings. Alternatively, RSUI argues further discovery was not needed for the district court to decide the coverage issue on summary judgment.

      Collectively referred to as the "Council Members."

      The Times Picayune, LLC, and Benjamin Alexander-Bloch are also named as Defendants in the instant suit but are not the subject of RSUI's motion for summary judgment.

      Mr. Cleveland was also a member/owner of ParaTech.

      Other representatives from the SBPG were also present at the meeting.

      Policy number HP655864.

      Policy number HP661160.

      "Claim" is generally defined in the policy as "a written demand for monetary or non-monetary relief [.]"

      The record is unclear as to the disposition of the first suit filed by Plaintiffs. The Parish alleges it is still pending in St. Bernard Parish District Court in Division D, Docket Number 14-1331. The appellate record reflects Docket Number 14-1331 is one of the cases consolidated for this appeal.

      The defendants also included those named in footnote 1, supra.

      The named defendants also included those named in footnote 1, supra.

      On March 6, 2017, the district court, in docket number 14-331, granted a summary judgment in favor of ParaTech, finding the SBPG failed to perform its contract with ParaTech when it entered into the contract with Todd's.

      At the hearing, RSUI admitted that the SBPG gave it timely notice of the claims asserted in Para II as to Messrs. Perniciaro and Cleveland, and the Council Members.

      La. C.C.P. art. 1442 provides in part: "A party may in his notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested."

      Council Members did not seek supervisory review of the district court's judgment.

      Appellate courts review judgments and not reasons for judgments. Wooley v. Lucksinger , 2009-0571, 2009-0584, 2009-0585, 2009-0586, pp. 77-78 (La. 4/1/11), 61 So.3d 507, 572. Although oral reasons are not reviewable by an appellate court, they may be insightful. In the case sub judice , the district court espoused that the claims asserted in Para I were not timely reported to RSUI; the dismissal of Para II resulted in the claims being dismissed; the claims asserted in Para III were averred outside of the policy period; and the policy excluded coverage for claims for breach of contract, defamation, mental anguish, emotional distress, and loss of income.

   In Sporl v. Sporl , 00-1321, p. 2 (La. App. 5 Cir. 5/30/01), 788 So.2d 682, 683-84, the appellate court explained:

An interlocutory judgment determines "preliminary matters in the course of the action" and is generally non-appealable. La. Code Civ. P. arts. 1841 and 2083. When an unrestricted appeal is taken from a final judgment, the appellant is entitled to a review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the correctness of the final judgment from which the party has taken the appeal. Bielkiewicz v. Ins. Co. of North America , 201 So.2d 130 (La. App. 3 Cir.1967).

The granting of the summary judgment is a final appealable judgment; thus, the denial of the motion to compel discovery is properly before this Court on appeal.

The Parish asserts the district court erred in denying the Council Members' motion to compel and quashing the notice to depose RSUI as discovery was incomplete. The Parish points to the lack of responses in the answer to interrogatories by RSUI; markedly, the lack of "substantive responses to interrogatories involving the underwriting process or drafting of the policy terms (footnotes omitted)." Additionally, the Parish contends that the Article 1442 deposition of RSUI was necessary to determine the history of drafting and application of the provisions relied on by RSUI to exclude coverage.

"In ruling upon discovery matters, the trial court is vested with broad discretion and, upon review, an appellate court should not disturb such rulings absent a clear abuse of discretion." Channelside Servs., LLC v. Chrysochoos Grp., Inc. , 2015-0064, p. 8 (La. App. 4 Cir. 5/13/16), 194 So.3d 751, 756 (citing Sercovich v. Sercovich , 2011-1780, p. 5 (La. App. 4 Cir. 6/13/12), 96 So.3d 600, 603 ).

Louisiana Code of Civil Procedure Article 966A(3) provides that a summary judgment may be granted "[a]fter an opportunity for adequate discovery." However, in Orleans Par. Sch. Bd. v. Lexington Ins. Co. , 2012-1686, pp. 29-30 (La. App. 4 Cir. 6/5/13), 118 So.3d 1203, 1223, this Court held:

Construing Article 966, this court has held that "while parties must be given fair opportunity to carry out discovery and present their claim, there is no absolute right to delay action on motion for summary judgment until discovery is complete." Thomas v. North 40 Land Development, Inc. , 04-0610, p. 31 (La. App. 4 Cir. 1/26/05), 894 So.2d 1160, 1179 (quoting Butzman v. Louisiana Power and Light Co. , 96-2073, p. 4 (La. App. 4 Cir. 4/30/97), 694 So.2d 514, 517 ).... Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact." Simoneaux v. E.I. du Pont de Nemours and Co. , 483 So.2d 908, 912-13 (La.1986).

This Court further espoused that "[w]hen the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent ( La. C.C. art. 2046 ); and additional discovery cannot change the result." Id. , 2012-1686, p. 30, 118 So.3d at 1223 (citations omitted.) Moreover, "[w]hether the policy unambiguously excludes coverage ... is solely a question of law to be decided from the four corners of the policy ...." Burmaster v. Plaquemines Par. Gov't , 2010-1543, p. 13 (La. App. 4 Cir. 3/30/11), 64 So.3d 312, 321 (citations omitted).

As will be discussed infra , the words of the RSUI policy were clear and explicit; thus, no further discovery was needed. Accordingly, we find the district court did not abuse its discretion by denying the Council Members' motion to compel and by granting RSUI's motion to quash the deposition and protective order.

Summary Judgment

The Parish asserts the district court erred in granting RSUI's motion for summary judgment.

"A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by the litigant." Tate v. Touro Infirmary , 2017-0714, p. 1 (La. App. 4 Cir. 2/21/18), --- So.3d ----, ----, 2018 WL 992322, writ denied , 2018-0558 (La. 6/15/18), 245 So.3d 1027 (citing La. C.C.P. art. 966(A)(1) ). An appellate court's standard of review for a grant of a summary judgment is de novo , and it employs the same criteria district courts consider when determining if a summary judgment is proper. Madere v. Collins , 2017-0723, p. 6 (La. App. 4 Cir. 3/28/18), 241 So.3d 1143, 1147 (citing Kennedy v. Sheriff of E. Baton Rouge , 2005-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686 ). In Chanthasalo v. Deshotel , 2017-0521, p. 5 (La. App. 4 Cir. 12/27/17), 234 So.3d 1103, 1107 (quoting Ducote v. Boleware , 2015-0764, p. 6 (La. App. 4 Cir. 2/17/16), 216 So.3d 934, 939, writ denied , 2016-0636 (La. 5/20/16), 191 So.3d 1071 ), this Court explained:

This [de novo ] standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

"Interpretation of an insurance policy usually involves a legal question that can be resolved properly within the framework of a motion for summary judgment." Thebault v. Am. Home Assur. Co. , 2015-0800, p. 5 (La. App. 4 Cir. 4/20/16), 195 So.3d 113, 116 (citing Bonin v. Westport Ins. Corp. , 2005-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910 ). In Burmaster , 2010-1543, p. 4, 64 So.3d at 316, (citation omitted), this Court explained that "[a]n insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code." The extent of coverage is determined by "[t]he parties' intent as reflected by the words in the policy," and "[s]uch intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning." Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co. , 630 So.2d 759, 763 (La. 1994) (citations omitted). Insurers can limit their liability absent a conflict with statutory provisions or public policy. Id. (citations omitted). The insurer has the burden of proving that a claimed loss falls within the policy exclusion. Supreme Servs. & Specialty Co. v. Sonny Greer, Inc. , 2006-1827, p. 6 (La. 5/22/07), 958 So.2d 634, 639 (citation omitted).

" 'Generally the insurer's obligation to defend suits against its insured is broader than its liability for damage claims.' " Plaia v. Stewart Enterprises, Inc. , 2014-0159, p. 35 (La. App. 4 Cir. 10/26/16), 229 So.3d 480, 504 (quoting Mossy Motors, Inc. v. Cameras Am. , 2004-0726, pp. 5-7 (La. App. 4 Cir. 3/2/05), 898 So.2d 602 ). In Plaia , this Court explained:

The issue of whether a liability insurer has the duty to defend a civil action against its insured is determined by application of the "eight-corners rule," under which an insurer must look to the "four corners" of the plaintiff's petition and the "four corners" of its policy to determine whether it owes that duty. Vaughn v. Franklin , 2000-0291, p. 5 (La. App. 1 Cir. 3/28/01), 785 So.2d 79, 84. Under this analysis, the factual allegations of the plaintiff's petition must be liberally interpreted to determine whether they set forth grounds which raise even the possibility of liability under the policy. Id. In other words, the test is not whether the allegations unambiguously assert coverage, but rather whether they do not unambiguously exclude coverage. Id. Similarly, even though a plaintiff's petition may allege numerous claims for which coverage is excluded under an insurer's policy, a duty to defend may nonetheless exist if there is at least a single allegation in the petition under which coverage is not unambiguously excluded. Employees Ins. Representatives, Inc. v. Employers Reinsurance Corp. , 94-0676, p. 3 (La. App. 1 Cir. 3/3/95), 653 So.2d 27, 29.

Id. This Court espoused in Holzenthal v. Sewerage & Water Bd. of New Orleans , 2006-0796, p. 49 (La. App. 4 Cir. 1/10/07), 950 So.2d 55, 84 (citing American Home Assur. Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (La. 1969) ), that "[a]n insurer must provide a defense to an insured if, assuming all of the allegations of the petition to be true, there would be both coverage under the policy and liability to the plaintiff."

With these precepts in mind, we review the district court's judgment de novo.

Breach of contract exclusion

The policy issued by RSUI to the SBPG explicitly excluded liability "under or pursuant to any contract or agreement." The Parish does not contest the policy excludes coverage for breach of contract claims. Rather, the Parish urges the breach of contract exclusion policy language-"such Insured would have been liable in the absence of such contract or agreement"-provides for a "but for" test to determine whether coverage is excluded. The Parish asserts there is indeed coverage for the Plaintiffs' negligent and non-contractual claims. The Parish explains that "the Parish allegedly owed an independent tort duty to Plaintiffs and allegedly breached that duty." In support, the Parish cites Borden, Inc. v.Howard Trucking Co. , 454 So.2d 1081, 1096 (La. 1983), wherein the Supreme Court held that "[t]here is a general rule that a party can incur liability in tort, notwithstanding a contractual relationship between parties, for consequential damages ... where the act causing the damage constitutes both a breach of contract and legal fault."

RSUI counters that Plaintiffs fail to allege any negligence claims that are separate and distinct from the breach of contract claims. RSUI contends that the only factually plead tort claims in the petition are for defamation; and the assertion of "any and all other negligent and/or intentional acts" asserted by the Plaintiffs in the petition is merely a general allegation. We agree.

In Looney Ricks Kiss Architects, Inc. v. State Farm Fire & Cas. Co. , 677 F.3d 250 (5th Cir. 2012), the United States Fifth Circuit discussed the "but for" test. The issue in Looney Ricks Kiss Architects, Inc. , was an interpretation of a breach of contract exclusion contained in pertinent insurance policies. The court, applying Louisiana law, noted Louisiana courts had not considered the issue of whether a breach of contract exclusion in an insurance policy precluded coverage of tort claims the insured had a contractual obligation not to commit. The plaintiff asserted the Louisiana cases of In re St. Louis Encephalitis Outbreak in Ouachita Parish , 01-4224 All Cases, 41,250-41, 259 (La. App. 2 Cir. 9/1/06), 939 So.2d 563 and Everett v. Philibert , 2008-2270 (La. App. 1 Cir. 5/8/09), 13 So.3d 616, supported application of the "but for" test. The court agreed and was of the opinion that Louisiana court's would likely adopt the "but for" test to determine whether a breach of contract exclusion precluded coverage. Id. at 257. The court explained in this test, " 'the injury is only considered to have arisen out of the contractual breach if the injury would not have occurred but for the breach of contract.' " Looney Ricks Kiss Architects, Inc. , 677 F.3d at 256 (quoting Houbigant, Inc. v. Fed. Ins. Co. , 374 F.3d 192, 202 (3d Cir.2004) ).

In In re St. Louis Encephalitis , 939 So.2d 563, the appellate court found the breach of contract exclusion in an insurance policy did not exclude the plaintiffs' tort claims. The Ouachita Parish police jury contracted with Mosquito Control, Inc. ("MCI") for mosquito control and/or abatement services. MCI was insured under two different commercial general liability policies during the pertinent time period. After an encephalitis outbreak, the plaintiffs, several citizens of Ouachita Parish who contracted encephalitis, brought a mass tort action against the Ouachita Parish Police Jury, MCI, and its liability insurers to recover for negligence and breach of contract. The insurers claimed that any duty owed to the plaintiffs originated in contract between MCI and the police jury; that absent the contract, no specific duty was owed the plaintiffs; and that any liability for damages necessarily arose out of failure to perform under that contract. Id. , 41,250-41,259, p. 4, 939 So.2d at 566. The appellate court rejected the insurers' arguments and agreed with the district court that the breach of contract exclusion did not apply. The court explained that the plaintiffs pled causes of action in both tort and contract and alleged a breach of duty owed to all persons which supported an action in tort. Id. , 41,250-41,259, p. 5, 939 So.2d at 567.

In contrast, the appellate court, in Everett , 13 So.3d 616, found a breach of contract exclusion precluded coverage. The plaintiffs brought suit against a contractor for deficiencies in the construction of their residence. In addition to the breach of contract claims, the plaintiffs asserted claims for bodily injury and emotional distress. In affirming the district court's judgment, the appellate court held that for the plaintiffs to succeed under their tort theory, they must show that their negligence claims were separate and distinct and not arising from the breach of contract claim. Id. , 2008-2270, p. 5 (La. App. 1 Cir. 5/8/09), 13 So.3d at 620 (citing Dubin v. Dubin , 25,996 (La. App. 2 Cir. 8/17/94), 641 So.2d 1036, 1039-1040 ). The appellate court explained the tort claim "must arise from a duty other than one imposed by the contract." Id. , 2008-2270, p. 5 (La. App. 1 Cir. 5/8/09), 13 So.3d at 620. The appellate court rejected plaintiffs' assertion that the tort claims were separate from the breach of contract claim concluding that "[a]ll the tort claims alleged by the Everetts' stem from [the contractor's] contractual duty to properly and timely construct a residence [for the Everetts]. There is no showing of a breach of a general duty. The only allegations in the petition are for breaches of duty confected by contract." Id. , 2008-2270, p. 6, 13 So.3d at 620.

In the case sub judice , the facts are more comparable to the proposition espoused in Everett . The negligent and intentional torts alleged by Plaintiffs stem from the contract between ParaTech and the Parish. These alleged claims would not have occurred but for the breach of contract by the Parish, and the claims are not separate and distinct from the breach of contract. Moreover, Plaintiffs have not shown the Parish breached any general duty owed to the public at large. Thus, Plaintiffs' general allegation of "any and all other negligent and/or intentional acts" is excluded from coverage under the breach of contract exclusion.

Defamation, mental anguish, and emotional distress exclusions

Moreover, the Parish asserts RSUI failed to prove Plaintiffs' claims related to mental anguish, emotional distress, and defamation were excluded under the policy. We disagree. Review of the policy provisions reveals that the policy expressly excluded coverage "for any actual or alleged libel, slander or defamation in any form," and damages for mental anguish and emotional distress damages. Thus, Plaintiffs' general allegation of "any and all other negligent and/or intentional acts" is excluded from coverage under the defamation and mental anguish and emotional distress exclusions.

Accordingly, the district court did not err in granting RSUI's motion for summary judgment.

CONCLUSION

The district's court judgment granting RSUI's motion for summary judgment is affirmed.

AFFIRMED

LEDET, CONCURRING WITH REASONS

On appeal, the St. Bernard Parish Government (the "SBPG") and four members of the St. Bernard Parish Council: Guy McInnis, Ray Lauga, Casey Hunnicutt, and Richard Lewis (the "Council Members") (collectively, the "Parish") contends that the trial court erred in two respects: (i) denying the Council Members' motion to compel discovery and request to depose RSUI Indemnity Company's ("RSUI"), and granting RSUI's motion to quash and protective order (the "Discovery Issue"); and (ii) granting RSUI's motion for summary judgment and dismissing all of the Plaintiffs' direct action claims against RSUI with prejudice (the "Coverage Issue").

As to the Discovery Issue, I agree with the majority's finding that the trial court did not abuse its discretion. No further discovery was necessary to resolve the insurance coverage issue in this case, which is a purely legal one. As to the Coverage Issue, I agree with the majority's findings that certain policy exclusions apply to relieve RSUI of its obligation to defend and to indemnity the Parish for the Plaintiffs'

claims; however, I write separately to articulate my analysis of the this issue.

To place the Coverage Issue in context, it is necessary to outline briefly the factual and procedural background of the case. Factually, RSUI issued two claims-made-and-reported officer and directors liability policies to the SBPG-one having a policy period of February 1, 2014, to February 1, 2015; the other, February 1, 2015, to February 1, 2016. Although the policy periods differ, the pertinent policy terms are the same. The instant suit, which falls within the 2015 to 2016 policy, is the Plaintiffs' third suit arising out of the same factual scenario-the termination of the contract for information technology ("IT") services between the SBPG and ParaTech, LLC ("ParaTech") (the "IT Contract"). The three suits are as follows:

Suit One -filed: November 7, 2014; venue: 34th Judicial District Court, Parish of St. Bernard; plaintiff: ParaTech; and defendants: the SBPG and RSUI.
Suit Two -filed: October 27, 2015; venue: 24th Judicial District Court, Parish of Jefferson; plaintiffs: ParaTech and its individual owners and members Richard Perniciaro, and Robert Cleveland; and defendants: the SBPG; RSUI; the Council Members; and the media defendants.
Suit Three (the instant suit)-filed: August 5, 2016; venue: 34th Judicial District Court, Parish of St. Bernard; plaintiffs: ParaTech, Mr. Perniciaro, and Mr. Cleveland; and defendants: the SBPG; RSUI; the Council Members; and the media defendants.

Suit One and Suit Two are relevant to the instant suit only insofar as those suits form the basis of the timeliness issue raised by RSUI regarding the Parish's presentation of its insurance claim to RSUI, so as to trigger coverage under the 2015 to 2016 policy. The majority pretermits the timeliness issue based on its finding that three policy exclusions, raised by RSUI in support of its motion for summary judgment, apply here. I agree and, thus, focus solely on the exclusions.

The three pertinent policy exclusions are as follows: (i) the defamation exclusion; (ii) the mental anguish or emotional distress exclusion; and (iii) the "breach-of-contract" exclusion. The application of the defamation and the mental anguish or emotional distress exclusions is straightforward. As the trial court noted in its oral reasons for judgment, "[t]he claim, for defamation, I think, is plain and simple. Everything that is a defamation claim, I think, is certainly excluded by the defamation exclusion. And all of the other claims of mental anguish are certainly excluded by the mental anguish, emotional distress exclusion." Because the correctness of the trial court's reasoning is not disputed, those two exclusions require no further analysis. The application of the "breach-of-contract" exclusion, on the other hand, is the crux of the instant appeal. Indeed, it subsumes all of the Parish's arguments.

The trial court, in its oral reasons for judgment, construed the "breach-of-contract"

exclusion as "all encompassing," reasoning as follows: "[a]ll the claims made by the plaintiff[s] ... had to do with the efforts of St. Bernard Parish Government to disassociate itself, terminate the contract, get away from, kick out of the building Mr. Perniciaro, his companies. It all has to do with that." On appeal, the Parish contends that the trial court erred in finding the "breach-of-contract" exclusion dispositive. The Parish's argument can be divided into the following three categories: (i) claims involving non-parties to the IT Contract; (ii) claims that are non-contractual in nature; and (iii) the "catch-all" claim in the Plaintiffs' petition. I separately address each category.

Claims Involving Non-Parties

As the majority points out, "[t]he Parish argues, in its reply brief, that the breach of contract exclusion does not apply to the Council Members, and Messrs. Perniciaro and Cleveland because they were not a party to the [IT] [C]ontract-just the SBPG and ParaTech." The majority pretermits this issue given that it was not raised in the trial court. I would address this issue.

This issue is resolved by the plain language of RSUI's policy setting forth the "breach-of-contract" exclusion; particularly, the policy provides that an insured loss excludes claims:

Alleging, arising out of, based upon or attributable to, in whole or in part, any liability under or pursuant to any contract or agreement, whether oral, written, express or implied, including the liability of others assumed by an Insured, unless such Insured would have been liable in the absence of such contract or agreement; provided, this EXCLUSION shall not apply to Defense Expenses in connection with an Employment Practices Claim[.]

Construing the same policy language, the federal district court in RSUI Indemnity Co. v. McDonough County Hospital d/b/a McDonough County Hospital District, and Women's Health Center of Macomb, S.C. , Labor & Empl. L. ¶ 221585 (C.C.H.) (U.S. District Court, C.D. Ill., September 28, 2017) (unpub. ), 2017 WL 4319117, rejected an insured's argument that the exclusion was only intended to apply to liability-producing contracts to which the insured, McDonough, was a party. In reaching this result, the district court reasoned that "the contract [exclusion], by its terms, applies to any claim based upon liability under any contract." Id. The district court further reasoned that "by the exclusion's terms, it does not matter who the parties to the contract are, and thus, whether or not the insured is a party to the liability-producing contract is not dispositive of whether the exclusion applies. The claim just has to be based on or attributable to a contract." Id.

Moreover, the district court in McDonough observed, as RSUI's counsel pointed out at oral argument before this court, that RSUI's policy exclusion, by its express terms, is actually a "contract" exclusion, not a "breach-of-contract" exclusion. Given the language of RSUI's contract exclusion does not restrict its scope to the parties to the liability-producing contract, the Parish's argument that the exclusion does not extend to non-parties to the IT Contract is unpersuasive.

Claims That Are Non-Contractual in Nature

The Parish's next argument is that the contract exclusion does not extend to non-contractual claims. The Parish cites the well-settled jurisprudential principle that the same act can give rise to both contractual and tort claims. See Borden, Inc. v. Howard Trucking Co. , 454 So.2d 1081, 1096 (La. 1983) (observing that "a party can incur liability in tort, notwithstanding a contractual relationship between parties, ... where the act causing the damage constitutes both a breach of contract and legal fault"). The Parish contends that the trial court erred in failing to recognize that this principle applies here. Nonetheless, the Parish acknowledges that the "but for" test, which the majority discusses in detail, determines the applicability of the "breach-of-contract" exclusion. Under the "but for" test, "the injury is only considered to have arisen out of the contractual breach if the injury would not have occurred but for the breach of contract." Looney Ricks Kiss Architects, Inc. v. State Farm Fire & Cas. Co. , 677 F.3d 250, 256 (5th Cir. 2012).

Applying the "but for" test to the present case, it is necessary to summarize the allegations of the Plaintiffs' petition. In McInnis , supra , the appellate court summarized the allegations of the Plaintiffs' petition in Suit Two-which, save a few words, are essentially verbatim to those in Suit Three-as follows:

Plaintiffs' claims against defendants arose out of an IT professional services contract between ParaTech and the St. Bernard Parish Government that was terminated by an ordinance passed by the St. Bernard Parish Council. The suit alleged specific causes of action against each defendant regarding events surrounding the contract and its eventual termination. First, plaintiffs alleged that the Councilmen were liable for various acts of defamation and conspiracy perpetrated against plaintiffs by the Councilmen as members of the St. Bernard Parish Government and in their own personal and individual capacities. These actions included providing defamatory statements to the press about plaintiffs; conspiring with other parish officials to sign an "illegal contract" with another IT company, Todd's Technology; stating false and misleading "facts" about Mr. Perniciaro to Mr. Cleveland and attempting to persuade Mr. Cleveland to leave ParaTech; and for initiating and/or voting for four "illegal" ordinances terminating ParaTech's contract with St. Bernard Parish, preventing plaintiffs from entering any parish building, and refusing to pay money owed to plaintiffs. As to the St. Bernard Parish Government, plaintiffs alleged that, through its parish councilmembers, employees, directors, officers, and contractors, it defamed and injured plaintiffs though defamatory public statements to the press, as well as through the above-listed actions of the Councilmen. The petition also alleged that RSUI was liable because it provided a policy of liability insurance to the St. Bernard Parish Government.

16-740 at pp. 1-2, 222 So.3d at 988-89. The above synopsis of the Plaintiffs' allegations supports the trial court's finding that all of the Plaintiffs' claims would not have arisen but for the SBPG's termination of the IT Contract.

"Crucial to the ['but for'] analysis is that the act giving rise to liability, i.e., the ('operative act'), is determinative, not the theories of liability alleged." In re Delta Fin. Corp. , 398 B.R. 382, 397 (Bankr. D. Del. 2008). Here, the operative act is the SBPG's termination of the IT Contract. All of the Plaintiffs' claims, no matter how labeled, flow from that operative act.

In its oral reasons for judgment, the trial court stated that "it's all one story. The story is St. Bernard Parish Government, in the beginning, identified as that and then, later, by individual councilmen was interested and made a sincere effort and succeeded in terminating the relationship between Parish Government and ParaTech and Mr. Perniciaro." I agree. Given that none of the Plaintiffs' claims flow from a duty owed to them stemming from any source other than SBPG's termination of the IT Contract, none of the Plaintiffs'

claims would have arisen but for this story-this operative act. For these reasons, the Parish's argument regarding non-contractual claims is unpersuasive.

The "Catch-All" Claim

The Parish's final argument is that the trial court erred in ignoring the "catch-all" claim in the Plaintiffs' petition, which alleges that "[a]ny and all other negligent and/or intentional acts ... which will be proven or identified through discovery." RSUI counters that the "catch-all" claim is insufficient to impose liability because, under Louisiana's fact-pleading system, a petition must allege with specificity the facts supporting each cause of action.

Under Louisiana's fact-pleading system, a petition must set forth the material facts upon which a cause of action is based. Batson v. Cherokee Beach & Campgrounds, Inc. , 428 So.2d 991, 993 (La. App. 1st Cir. 1983) (citing La. C.C.P. art. 891(A) ). "Mere allegations of negligence are not allegations of fact which must be accepted as true, but are conclusions of law." Batson , supra. Mere allegations of negligence "cannot form the basis of a cause of action, which under our system of fact pleading must be based on facts from which such conclusions may be drawn." Id.

Consistent with the fact-pleading requirement, the jurisprudence has recognized that a "catch-all" claim is insufficient to preclude summary judgment. See Ebarb v. Boswell , 51,445, p. 7 (La. App. 2 Cir. 7/19/17), 224 So.3d 523, 528 (observing that "[i]nsurance coverage in this matter is not salvaged by Ebarb pleading that Bowell is liable for '[o]ther improper/negligent acts as may be proven at trial' ");. Chalmers v. Burnett & Co., Inc. , 15-249, p. 7 (La. App. 3 Cir. 10/7/15), 175 So.3d 1100, 1104 (rejecting the argument that an "other relief" allegation precluded a finding that coverage was not unambiguously excluded). Simply stated, a "catch-all" claim is insufficient because it alleges "[n]o new facts." Chambers , supra. Only those claims that a plaintiff has asserted and supported with specific factual averments are sufficient to defeat summary judgment. The Parish's reliance on the "catch-all" claim in the Plaintiffs' petition thus is misplaced.

For all the above reasons, I respectfully concur.

      2018 WL 992322.

      The Supreme Court denied writs in this case. Plaia v. Stewart Enterprises, Inc. , 2016-2264 (La. 2/3/17), 215 So.3d 692 ; 2016-2261 (La. 2/3/17), 215 So.3d 698 ; and 2016-2258 (La. 2/3/17), 215 So.3d 699.

      The Parish sets forth possible non-breach of contract claims that Plaintiffs' could assert:
      (1) "preventing [Plaintiffs] from entering any public building in the parish" was in violation of the Plaintiffs' "civil rights and due process rights under Louisiana law";
      (2) "[C]ouncil Members 'passed ordinances to mandate that the Parish President terminate the professional services contract with ParaTech and to defund the entire parish IT department";
      (3) "[C]ouncil Member Ray Lauga, Jr. acted to 'undermine the success' of Plaintiffs for personal gain";
      (4) "[P]arish's attorney had the Parish sign an IT contract with a third-party contractor";
      (5) "[C]ouncil Member Ray Lauga, Jr. allegedly made statements about helping an owner of ParaTech start a new company' ";
      (6) A Council member made a statement that "ParaTech was given a 'sweet heart deal' in receiving the contract"; and
      (7) The Parish's handling of business "through a personal email server and a personal email account, instead of through the parish IT network, was unsafe and likely illegal under the Louisiana Public Records Laws."

      In Tuban Petroleum, L.L.C. v. SIARC, Inc. , 2009-0302, p. 4 (La. App. 4 Cir. 4/15/09), 11 So.3d 519, 522 (quoting Montalvo v. Sondes , 93-2813 (La. 5/23/94), 637 So.2d 127, 131 ), this Court explained that "Louisiana utilizes fact pleading, which means that the 'mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action.' "

      The United State Fifth Circuit explained that this is referred to as an "Erie guess": "When making an Erie guess, our task is to attempt to predict state law, not to create or modify it." Looney Ricks Kiss Architects, Inc. , 677 F.3d at 256 (quoting SMI Owen Steel Co. v. Marsh USA, Inc., 520 F.3d 432, 442 (5th Cir.2008) (internal quotation marks omitted).

      In Looney Ricks Kiss Architects, Inc. , 677 F.3d 250, the plaintiff, an architecture firm, brought an action for copyright infringement against a former client, Steve Bryan, and his affiliated building companies. The plaintiff created a design known as the Island Park Apartments which was constructed by companies associated with Steve Bryan. The plaintiff and Island Park, LLC, as represented by Mr. Bryan, in 1996, entered into a Standard Form of Agreement Between Owner and Architect wherein the plaintiff "retain[ed] all common law, statutory, and other reserved rights, including the copyright" and the "Technical Drawings or other documents shall not be used by the Owner or others on other projects, for additions to this Project or for completion of this Project by others." Id. at 253-54 (emphasis in the original). The plaintiff registered the Island Park Apartments with the United States Copyright Office as an Architectural Work and Technical Drawings. The suit arose when Cypress Lake Development, a company associated with Bryan, applied for and obtained permits to construct the Cypress Lake Apartments in Baton Rouge, Louisiana; the plaintiff alleged that these apartments infringed on its copyrighted work without his consent or permission. The district granted a summary judgment, in part, in favor of the defendants' insurers finding no coverage under the insurance policy for breach of contract. On appeal, the United States Fifth Circuit, applying the "but for" test, reversed the district court and held that "[a]s [the plaintiffs] claim for relief under the federal copyright laws would exist even in the absence of its 1996 Agreement with Bryan, the 'breach of contract' provisions of the relevant insurance policies do not apply to preclude coverage ...." Id. , 677 F.3d at 257.

      The district court granted summary judgment as to the contractor's insurance carrier finding the policy provided no coverage for the tort claims alleged in plaintiffs' petition, and the insurance company had no duty to defend the contractor against those claims. Everett, 2008-2270, p. 2 (La. App. 1 Cir. 5/8/09), 13 So.3d at 617-618.

      The Parish argues, in its reply brief, that that the breach of contract exclusion does not apply to the Council Members, and Messrs. Perniciaro and Cleveland because they were not a party to the contract-just the SBPG and ParaTech. The Parish did not raise this argument in its opposition to the summary judgment or at the hearing on the motion. In Nixon v. K & B, Inc. , 93-2055, pp. 3-4 (La. App. 4 Cir. 1/19/95), 649 So.2d 1087, 1089, this Court held:
      An issue not raised in pleadings or in a motion for summary judgment in the Court below cannot be raised for the first time on appeal. Uniform Rules, Courts of Appeal, Rule 1-3, Poirier v. National Union Fire Insurance Company, 517 So.2d 225 (La. App. 1st Cir.1987) ; Lusk v. Aetna Casualty & Surety Company , 295 So.2d 238 (La. App. 3d Cir.1974).
      As this issue was raised for the first time on appeal, it is not properly before this court.
      Moreover, the undisputed material facts indicate the Council Members, acting in their capacity of the SBPG, took actions which impacted the contract between ParaTech and the SBPG, and the duty owed to Messers. Perniciaro and Cleveland by the Parish emanated from the contract.

      In its oral reasons, the district court concluded all the claims made by the Plaintiffs had to do with "the efforts of St. Bernard Parish Government to disassociate itself, terminate the contract, get way from, kick out of the building Mr. Perniciaro, his companies."

      In its oral reasons, the district court found the defamation claims and anything arising out of the defamation claims were excluded by the defamation exclusion, and the mental anguish claims were excluded by the mental anguish, emotional distress exclusion.

      In Kennedy v. Sheriff of E. Baton Rouge , 2005-1418, p. 5 (La. 7/10/06), 935 So.2d 669, 674-75, (citations omitted), the Supreme Court explained there are two forms of defamatory words: those that are defamatory per se and those that are susceptible of a defamatory meaning.

      Because the Plaintiffs' claims are excluded from coverage, the remaining claims-whether the claims fell within the applicable time period of the policy to trigger coverage and the alleged violation of Article 966(f) -need not be addressed; and these claims are pretermitted.

      The plaintiffs are ParaTech and its individual owners and members, Richard Perniciaro and Robert Cleveland (collective "the Plaintiffs").

      As the majority observes, the trial court's interlocutory ruling on the Discovery Issue is properly before us on appeal. See Favrot v. Favrot , 2010-0986, p. 2 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102, n. 1 (observing that "[i]t is well-settled that although an interlocutory judgment may not itself be immediately appealable, it is nevertheless subject to review by an appellate court when a judgment is rendered in the case which is appealable").

      The media defendants are the Times Picayune, LLC ("the Times Picayune"); and Benjamin Alexander-Bloch, a reporter for the Times Picayune.

      The media defendants are not parties to this appeal.

      Suit One is still pending; Suit Two was dismissed on a declinatory exception of improper venue. The judgment dismissing Suit Two was affirmed on appeal. Perniciaro v. McInnis , 16-740 (La. App. 5 Cir. 5/31/17), 222 So.3d 987.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    Patrice ARIATTI, Wife of Keith Plaisance v. Keith PLAISANCE
    NO. 18-CA-84
    Court of Appeal of Louisiana, Fifth Circuit.
    September 13, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, PATRICE ARIATTI, WIFE OF KEITH PLAISANCE, Laura J. Todaro, Kenner
    COUNSEL FOR DEFENDANT/APPELLEE, KEITH PLAISANCE, Marc D. Winsberg, Robin Penzato Arnold, Jonathan D. Gamble
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
   WINDHORST, J.

Appellant, Patrice Ariatti, appeals the judgment of the trial court regarding custody of the minor child and other related orders, as well as the dismissal of her petition for protection from abuse against appellee, Keith Plaisance. For the following reasons, we affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

Ms. Ariatti and Mr. Plaisance were married on May 21, 2011, and they had a child on February 24, 2014. The couple's marriage began to deteriorate in 2015. Their problems escalated on March 8, 2016 during a disagreement regarding Ms. Ariatti's decision to take their child to her parents' house for an extended period of time while she recovered from a surgery. Ms. Ariatti asserts, during this disagreement, that Mr. Plaisance committed two separate acts of domestic violence. That day, the parties physically separated, and the following day, Ms. Ariatti filed a petition for divorce and a separate petition for protection from abuse pursuant to La. R.S. 46:1231 et seq ., Domestic Abuse Assistance Act, in the Twenty-fourth Judicial District Court for Jefferson Parish. A judgment of divorce was granted on May 19, 2017.

The Petition for Protection

In her petition for protection, Ms. Ariatti alleged that, on March 8, 2016, Mr. Plaisance attempted to prohibit her from leaving their home with their child and committed two acts of domestic violence against her and the child, specifically that he grabbed her by the arms and shoved her up against a wall, and threw plastic hangers that allegedly hit both her and their child in the chest. On April 11, 2016, the parties appeared with counsel before the domestic commissioner for a full evidentiary hearing on appellant's petition for protection. Ms. Ariatti, Mr. Plaisance, and the two officers who responded to the call from the parties' home that day all testified.

The record indicates that at the time of the alleged incidents, the parties were arguing about whether Ms. Ariatti was going to take their son to her parents' house while she recovered from a surgery. Mr. Plaisance testified that Ms. Ariatti lunged at him while he was sitting on the couch as if she would choke him. He grabbed her wrists as he stood up and backed her up from him. Ms. Ariatti confirmed that she was standing over him and yelling at him a few inches from his face, when he grabbed her wrists. She also confirmed that she was not injured during this incident. Ms. Ariatti also asserts that on this evening, Mr. Plaisance picked up several hangers with clothing and threw them at her and the child, hitting them both. Contrary to this, Mr. Plaisance testified that he dropped the hangers and clothing in her suitcase.

Ms. Ariatti called the police that evening, but when they arrived, she made no allegations of domestic abuse. Ms. Ariatti advised the police that they were having an argument about relationship problems. The record indicates that Mr. Plaisance did nothing to physically prevent Ms. Ariatti from leaving the house and no one was harmed. She ultimately left the house with the child and most of their belongings that night and went to stay with her parents.

At the conclusion of the hearing, the Commissioner found that the evidence did not establish domestic violence, but that the parties had a family argument. He stated that "Ms. [Ariatti] admits that she goes and gets in Mr. Plaisance's face. He then grabs her by the wrists and restrains her. I don't think this is domestic violence. The testimony on the hanger incident, that is just contradictory. I don't think there is evidence one way or the other." Based on these findings, the Commissioner dismissed Ms. Ariatti's petition for protection.

Ms. Ariatti filed an objection to the dismissal of her petition for protection, and requested a stay of the interim order and the appointment of a custody evaluator. On May 25, 2017, there was a hearing before the trial court on Ms. Ariatti's petition for protection. The transcript of the proceedings before the Commissioner was entered into evidence by Mr. Plaisance without objection at the hearing before the trial court. The trial court only allowed new evidence and testimony to be presented because there was a full trial on the merits that was transcribed before the Commissioner. Ms. Ariatti's counsel asserted she should be allowed to have her witnesses re-testify before the trial court and objected on the record to the trial court not hearing the entire matter de novo .

In making its determination, the trial court reviewed the transcript of the proceedings before the Commissioner. The trial court found that there was no basis for the petition for protection from abuse based on the police officers' testimony that there were no complaints of abuse made on the night of the incident, there were no marks on Ms. Ariatti and there were no allegations of injury to her or the child. The trial court dismissed the petition for protection.

The Custody Proceedings

On May 25, 2017 and August 29, 2017, the trial court also heard testimony regarding the custody issues. The trial court found that the custody evaluator, Dr. Karen Van Beyer (the "C.E."), qualified as an expert in custody evaluations and allowed her to testify. On the custody issues, the C.E., Ms. Ariatti, Mr. Plaisance, and Mr. Plaisance's supervisor testified.

The C.E. testified that Ms. Ariatti is the primary caretaker and an excellent mother.

As to Mr. Plaisance, she found that there is a positive, secure attachment and a loving relationship between father and son, and that he is capable of parenting his son. During a meeting with the C.E., both parents acknowledged that the child needs both parents in his life. The C.E. recommended joint custody, with Ms. Ariatti as the domiciliary parent with whom the child should primarily reside during the week. With regard to schooling, however, the C.E. recommended that if the parties cannot agree on a school, then Mr. Plaisance should make the decision. The C.E. made this recommendation because Ms. Ariatti was clear that if she made the decision, she would choose a school in St. Bernard, which would be exceedingly inconvenient for the father, while Mr. Plaisance indicated he would choose one that is equidistant. The C.E. also recommended that if the parties cannot agree as to which extracurricular activities the child should participate in, the child should not be allowed to participate. She explained that she generally makes this recommendation in hopes that parents realize they are depriving their child of participating in extracurricular activities and will find a way to allow the child to participate in some extracurricular activities.

According to the C.E.'s testimony, she advised Ms. Ariatti that during exchanges with Mr. Plaisance, she should not engage in protracted good-byes. She testified that she was aware of the exchange of the child involving the parties and Ms. Ariatti's father, which resulted in a violent altercation between Mr. Plaisance and Ms. Ariatti's father. The C.E. testified that this situation could have likely been avoided if Ms. Ariatti had not engaged in a protracted good-bye with the child. She further testified that there was not anything to indicate Mr. Plaisance has a history of abuse.

Ms. Ariatti testified that she has concerns regarding whether Mr. Plaisance can properly care for their child. Specifically she testified that Mr. Plaisance (1) does not give the child his medicine as prescribed; (2) left a peanut product in the child's Easter basket when he has a peanut allergy ; (3) is verbally abusive to her; (4) left a loaded a loaded gun on a bedside table; and (5) missed several scheduled visits. As to schooling, Ms. Ariatti testified that she has concerns about the child's current school because not all teachers are state certified and she would prefer to send him to Joe Davies Elementary School in St. Bernard Parish, which is a Grade A school and equivalent to a Jefferson Parish magnet school.

Mr. Plaisance testified that he has a loving relationship with his child and has no concerns about taking care of him. He stated that he does not get enough time with the child and would like equal time with him. Mr. Plaisance typically works from 8:30 a.m. to 4:30 p.m., travels occasionally for work, has a great deal of flexibility and can sometimes work from home. As to choosing a school for their child, Mr. Plaisance researched schools based on the C.E.'s recommendations and found four schools that were approximately equidistant between his and Ms. Ariatti's residence. As to extracurricular activities, he would like to coach and participate in these activities with his child and believes that participation at a playground equidistant between the parties would be best. Mr. Plaisance also testified that he has removed all firearms from his home, that he knows how to administer the child's medicine and gives the medicine to him. As to missing scheduled visits, Mr. Plaisance testified that these occurred due to work, some personal activities, and on one occasion, because the child was ill and the parties agreed it would be in his best interest to stay with Ms. Ariatti to avoid additional unnecessary traveling back and forth at that time.

As to the altercation with Ms. Ariatti's father, Mr. Plaisance testified that on December 22, 2016, during the exchange of the child, he and Ms. Ariatti started arguing because she reneged at the last minute on the number of nights he would have the child. Ms. Ariatti's father videotaped the exchange of the child. While the parties were arguing, Ms. Ariatti apparently began to unbuckle the child as Mr. Plaisance started to slowly back up with Ms. Ariatti walking beside the car. Mr. Plaisance stopped and walked around the vehicle to Ms. Ariatti. At this point, Ms. Ariatti's father stormed out of the house and an argument between him and Mr. Plaisance ensued. During this exchange, Ms. Ariatti's father dared Mr. Plaisance to hit him multiple times, and Mr. Plaisance asked Ms. Ariatti's father to get away from him multiple times. The dispute escalated, and Mr. Plaisance struck Ms. Ariatti's father in the jaw.

The Trial Court's Judgment

In his judgment, the trial court adopted the C.E.'s recommendations and ruled the parties shall have joint custody of the minor child, with the mother being designated as the domiciliary parent except as to the choice of school. In this regard, the trial court ordered that if the parties cannot agree on a school, the choice should be made by the father, and that the school should either be equidistant between the parents' home or the child should remain at his current school. In addition, if the parents cannot agree on extracurricular activities for the child, the child will not be allowed to participate. The parties were also ordered to enroll in co-parenting classes, and that if after six (6) months, the parties find this unsuccessful, the trial court reserved the option to appoint a Parenting Coordinator upon the motion of either party.

The trial court also specifically found that (1) the child loves both parents and the mother's actions show an attempt to separate the son from the father; (2) the mother is calculating and tries to provoke aggressive behavior from the father and the father takes the bait and responds inappropriately; and (3) the father needs to learn to communicate civilly with the mother and live up to his responsibility as a parent.

ASSIGNMENTS OF ERROR

Appellant presents the following assignments of error. She asserts that the trial court erred in (1) granting equal physical custody of the minor child; (2) not finding Mr. Plaisance has a history of perpetuating domestic violence so as to disqualify him from joint custody; (3) granting Mr. Plaisance the right to make educational decisions for the child if the parties cannot agree; (4) ordering that the child could not participate in any extracurricular activities to which both parents did not agree; (5) denying her petition for protection from abuse; (6) refusing to hear testimony from an ex-girlfriend of Mr. Plaisance regarding alleged stalking and the officer who investigated the alleged stalking; and (7) not rendering a meaningful joint custody implementation plan.

Assignment of Error One

Appellant asserts that the trial court erred in ordering joint custody of the child because it is not feasible nor in the best interest of the child. On appellate review, the trial court's custody determination is entitled to great weight and will not be disturbed absent a clear showing of an abuse of discretion. Martinez v. Lagos, 13-887 (La. App. 5 Cir. 05/21/14), 142 So.3d 231, 234 ; citing Martin v. Martin, 11-1496 (La. App. 3 Cir. 5/16/12), 89 So.3d 526 ; Bridges v. Bridges, 09-742 (La. App. 5 Cir. 2/9/10), 33 So.3d 914, 918. An appellate court cannot substitute its own findings for that of the trial court. Martinez, 142 So.3d at 234. The trier of fact is in a superior position to observe the nuances of demeanor, evidence not revealed in a record, and is not disadvantaged by the review of a cold record. Id.

Louisiana law provides that custody of a child shall be awarded based on the best interest of the child. La. C.C. art. 131. La. C.C. art. 132 states that if the parties cannot agree who is to have custody or the parties' agreement is not in the best interest of the child, the court shall award custody to the parents jointly. This article further states that if there is clear and convincing evidence that it is in the best interest of the child for one parent to have custody, then the court shall award custody to that parent.

La. C.C. art. 134 sets out twelve non-exclusive factors for the court to consider in awarding custody. Such factors may include:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Martinez, 142 So.3d at 234 ; citing Robertson v. Robertson, 10-926 (La. App. 5 Cir. 4/26/11), 64 So.3d 354, 362-363. Every child custody case must be viewed based on its own particular facts and relationships involved, with the goal of determining what is in the best interest of the child. Martinez, 142 So.3d at 237, citing Mulkey v. Mulkey, 12-2709 (La. 5/7/13), 118 So.3d 357, 367.

In rendering judgment in this case, the trial court adopted the recommendations of the C. E., who after meeting with the parents and other family members and visiting the child at each parents' home, recommended that the parties have joint custody of the minor child. The C.E. testified that both parents are capable of caring for their child, and that the child has a secure attachment and a loving relationship with both parents. Ms. Ariatti and Mr. Plaisance both acknowledged to the C.E. that the child needs both parents in his life.

Based on the testimony of the C.E. and the parents, we find both parents have the capacity, disposition, and the mental and physical health to give the child love and affection and to handle the education and rearing of this child, as well as to provide the child with a stable environment and all material needs. Mr. Plaisance lives in the family home and the C.E. testified that the child is comfortable with the father in his house. Ms. Ariatti lives with her parents in their home, which is also a safe and comfortable environment for the child.

Appellant asserts the trial court erred in awarding joint custody because the father (1) often gives up his visitation rights; (2) leaves the child with his parents instead of asking the mother to keep him (as per court order) when he goes out of town for work; (3) has left firearms out requiring a court order requiring him to not have firearms when the child is in his custody; (4) uses foul language and is verbally abusive to the mother; (5) cannot adequately handle the child's medical needs (the child has asthma and requires breathing treatments), and (6) is abusive. Ms. Ariatti also asserts she has a stronger bond with the child.

We find that none of these allegations warrant reversal of the joint custody judgment. The testimony indicates that Mr. Plaisance had to forfeit or change his visitation due to both work-related and personal reasons. In addition, the record does not support appellant's assertions that the father is abusive, or that he cannot adequately handle the child's medical needs. While the child may be more attached to his mother at this point, this is not a valid basis for sole custody as it is clearly in the best interest of the child for him to have a close relationship with both parents. The most effective means of accomplishing that is with a joint custody arrangement.

Based on the foregoing, the record does not indicate that the trial court abused its discretion in awarding joint custody. Considering the best interest of the child factors, and the lack of clear and convincing evidence that it would be in the best interest of the child for Ms. Ariatti to have sole custody, we find no error in the trial court's ruling.

Assignment of Error Two

Appellant asserts that the trial court erred in not finding Mr. Plaisance has a history of perpetuating domestic violence so as to disqualify him from joint custody. A trial court has wide discretion in determining the credibility of witnesses, and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Hughes v. Talton, 06-319 (La. App. 5 Cir. 11/14/06), 947 So.2d 735, writ denied, 06-2969 (La. 2/16/07), 949 So.2d 420.

The record does not contain evidence to support a finding that Mr. Plaisance has a history of domestic violence. Ms. Ariatti never made allegations of domestic abuse prior to her separation from Mr. Plaisance and filing the petition for protection. There is no evidence that Mr. Plaisance has harmed Ms. Ariatti or the child.

In support of her assertion of domestic violence, appellant relies on the events that occurred on March 8, 2016, when she packed up her and the child's belongings and moved to her parents' house. While the testimony is contradictory, that evening, Ms. Ariatti told the police that the parties' were having a disagreement about relationship problems and made no allegations of abuse or injury. Based on the testimony, the incident occurred when Mr. Plaisance was sitting on the couch, and Ms. Ariatti was standing over him and yelling at him, a few inches from his face. Ms. Ariatti confirmed this in her testimony. Mr. Plaisance grabbed her wrists and stood up to push her away from him. Ms. Ariatti asserts that Mr. Plaisance grabbed hangers with clothing and threw them at her, hitting her and the child. According to Mr. Plaisance, however, he dropped the clothing into Ms. Ariatti's suitcase.

Ms. Ariatti also argues that the altercation between her father and Mr. Plaisance supports her assertion that Mr. Plaisance has a history of domestic violence. As the trial court concluded, the record indicates that Ms. Ariatti and her father facilitated the altercation while videotaping the exchange of the child, informing Mr. Plaisance on camera that he would not have the child for two nights as agreed, and engaging in a lengthy good-bye with the child. The evidence showed that Mr. Plaisance told Ms. Ariatti's father to get away from him multiple times, but that he continued to provoke Mr. Plaisance and dared him multiple times to hit him. Considering the testimony on this incident, particularly these facts, we find no support for appellant's assertion that Mr. Plaisance has a history of domestic violence.

Louisiana courts have held that the definition of domestic abuse in La. R.S. 46:2132(3) does not include nonphysical acts, such as general harassment and family arguments, if those acts do not rise to the level of physical abuse in violation of the criminal code, or an offense against a person. Lee v. Smith, 08-455 (La. App. 5 Cir. 12/16/08), 4 So.3d 100, 106. Physical abuse would include an act involving the intentional use of force or violence. See La. R.S. 14:35(3). While this Court in no way condones negative physical contact between parties engaged in a family argument, based on the record before us, we find the trial court did not abuse his discretion in determining that the incidents testified to do not rise to a level constituting domestic violence as contemplated under La. R.S. 46:2132(3). Moreover, our review of the record convinces us that the trial judge and the commissioner, who were in a superior position to observe the parties' demeanor and mannerisms, were thorough in their deliberations. Given the parties' conflicting testimony regarding the events requiring the trial court and commissioner to make credibility determinations, we cannot say the trial court's findings on this issue were manifestly erroneous. This assignment is without error.

Assignment of Error Three

Appellant asserts the trial court erred in granting Mr. Plaisance the right to make educational decisions for the child if the parties cannot agree. The court ordered that if the parties cannot agree on a school, the choice should be made by the father, and that the school should either be equidistant between the parents' home or he should remain at St. Christopher (his current school).

While the trial court gave the father the final decision regarding the choice of school, the judgment states that the school should either be equidistant between the parents' home or he should remain at his current school, St. Christopher. Thus, the father must choose a school that is reasonably located for both parents. Based on the testimony, if Ms. Ariatti was given the authority to choose, she would choose a school in St. Bernard, an extremely inconvenient option for the father.

Given the limiting language of the judgment requiring that the school choice be equidistant between the parents' residences or remain his current school, we find no abuse of discretion in the trial court's ruling.

Assignment of Error Four

Appellant asserts the trial court erred in ordering that the child would not be allowed to participate in extracurricular activities if the parties cannot agree. The trial court made this ruling part of the judgment based on the C.E.'s recommendation.

Ms. Ariatti has indicated she would like to register the child for activities in St.

Bernard, but asserts that Mr. Plaisance has objected because it would be inconvenient when he has the child as he lives in Marrero. The C.E. testified that she often recommends not allowing the child to participate in extracurricular activities if the parents cannot agree, in hopes that the parents will find some resolution rather than preventing the child from participating in such activities. Given that the child is only four years old and in light of the trial court's order that the parents enroll in co-parenting classes, we do not find the trial court's order regarding extracurricular activities is manifestly erroneous or an abuse of its vast discretion. Considering many of the custody issues have been resolved and there is a judgment in place, we believe it is in the child's best interest to give the parents an opportunity to cooperate regarding the child's extracurricular activities, as per the trial court's order, and allow time for the parents to resolve this issue on their own. If they cannot, they can seek modification from the trial court. Our standard of review does not allow this Court to substitute our judgment if the record supports the trial court's findings. We therefore decline to disturb the judgment on this issue.

Assignment of Error Five

Appellant asserts that the trial court erred in dismissing her petition for protection. Appellate courts review domestic protective orders for abuse of discretion. Dufresne v. Dufresne, 08-215, 08-216 (La. App. 5 Cir. 9/16/08), 992 So.2d 579, 586, writ denied, 08-2843 (La. 12/17/08), 996 So.2d 1123.

At the trial court hearing on the petition for protection, the trial court stated that it was only going to permit Ms. Ariatti to present new evidence and testimony, other than that which had already been presented before the hearing officer. Appellant asserts she was entitled to a de novo trial on the petition for protection before the trial court.

Our review of the judgment and the transcript of the trial court proceedings, indicates that, as a practical matter, the trial court gave appellant's petition for protection de novo consideration. There is no indication in the judgment or from the trial court's comments that the court gave more weight to the commissioner's ruling than the actual testimony and evidence presented in making its determination. Moreover, the transcript of the hearing before the domestic commissioner was admitted into evidence without objection from counsel, and the trial court stated that it reviewed the transcript in making its determination. Thus, we find the trial court considered all of the evidence in reaching its conclusion as to whether Ms. Ariatti had carried her burden of establishing domestic abuse.

Pursuant to La. C.C.P. art. 1631, the "court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial so that justice is done." In doing so, the "trial judge has great discretion in conducting the manner and fashion in which the trial is run."

Tracy v. Jefferson Parish Through Dept. of Public Works, 523 So.2d 266, 274 (La. App. 5th Cir. 1988). In addition to reviewing the transcript, though the trial court initially ruled that it would only consider "new" evidence, the record reveals that the trial court actually gave wide latitude to Ms. Ariatti during her testimony, allowing her to discuss things she previously testified to during the prior hearing with the domestic commissioner. Ms. Ariatti had the opportunity to call additional relevant witnesses, but chose not to. Having considered the record as a whole, the lack of evidence to support appellant's petition for protection, and considering the particular facts of this case, we find that it was within the discretion of the trial court to accept the transcript of the proceeding before the commissioner instead of recalling all of the witnesses to re-testify.

Further, based on our review, we find the trial court's dismissal of the petition for protection is supported by the record. Ms. Ariatti first asserted that Mr. Plaisance acted aggressively towards her and the child the day after they separated. Her petition is based on two alleged incidents, which occurred on the evening she initiated the separation during what appears to have been a family argument. On the evening in question, Ms. Ariatti called the police but at the time made no assertions of any abuse and told police officers no one was harmed. Moreover, Ms. Ariatti advised the police that the parties were having a disagreement about relationship problems. As discussed supra in assignment of error two, the evidence regarding the incidents is contradictory and there are no other alleged instances of abuse. Thus, considering the record evidence in its entirety and keeping in mind the trial court's vast discretion in these matters, we find no error in the trial court's dismissal of the petition for protection.

Assignment of Error Six

Appellant asserts the trial court erred in refusing to hear testimony from a previous girlfriend of Mr. Plaisance that he allegedly stalked and harassed her. A trial court is vested with vast discretion in controlling the presentation of evidence, including the authority to determine the admissibility of witnesses' testimony. LeBlanc v. Cont'l Grain Co., 95-813 (La. App. 5 Cir. 3/13/96), 672 So.2d 951, 958.

The trial court refused to hear the testimony of Mr. Plaisance's ex-girlfriend regarding stalking and harassment because the alleged incident occurred approximately nine years ago. Mr. Plaisance was not convicted of any crime and the district attorney's office refused the charges. We agree that this testimony is not relevant to the present matter, particularly given that the alleged incident occurred nine years ago. Thus, Ms. Ariatti has not established that the trial court abused his discretion by disallowing this testimony.

Assignment of Error Seven

Appellant asserts the trial court erred in failing to make a meaningful joint custody implementation plan. Specifically, appellant complains that the judgment does not state when custodial times start and/or end; does not give either parent an entire weekend; requires the child to sleep in a different house every two nights during the week; and does not indicate how to handle summer care. The appellee acknowledges that the implementation plan has some vague and/or incomplete elements, but asserts that the parties should attempt to resolve these issues amongst themselves and if they are unable to do so, they can proceed with addressing those issues before the court.

In the judgment, the trial court ordered the parties to enroll in co-parenting classes, and that, if after six months, the parties are unsuccessful, the court may appoint a Parenting Coordinator upon motion of either party. Given this, we believe it is reasonable to give the parties an opportunity to resolve some of these issues on their own. If they continue to have difficulty co-parenting, they may return to the court and seek resolution there. In this regard, it is important to acknowledge that the trial court has much discretion in awarding and implementing child custody awards. Swope v. Swope, 521 So.2d 656, 659 (La. App. 1st Cir. 1988). Thus, at this point, we find no reason to amend the judgment or remand this matter.

Conclusion

For the reasons stated above, we affirm the trial court's judgment.

AFFIRMED

      The C.E.'s evaluation included meetings with the parties, both individually and collectively, and with both the maternal and paternal grandmothers. Both parties completed Parent and Child Background Questionnaires. Dr. van Beyer also completed a home study of both Mr. Plaisance's home and Ms. Ariatti's parents' home (where she resides) with the child present.

      Appellee's counsel asserts that the trial court properly refused to allow all the testimony and evidence to be presented again under La. R.S. 13:717 F (4)(c), which states "The judge may decide the objection based on the record of the proceedings or may receive further evidence and rule based on that evidence, together with the prior evidence, or may recommit the matter to the commissioner with instructions." Under the language of the statute, however, this appears to be limited to the implementation of interim child support and custody orders. La. R.S. 13:717 F (4).


author: Judge Tiffany G. Chase

text:
    Isaiah SHANNON v. DEPARTMENT OF POLICE
    NO. 2018-CA-0145
    Court of Appeal of Louisiana, Fourth Circuit.
    September 19, 2018
    Kevin V. Boshea, Attorney At Law, 2955 Ridgelake Drive, Suite 207, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLEE
    Elizabeth Robins, Deputy City Attorney, Isaka R. Williams, Assistant City Attorney, Cherrell S. Taplin, Sr. Chief Deputy City Attorney, Rebecca H. Dietz, City Attorney, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

The New Orleans Police Department (hereinafter "NOPD") seeks review of the December 20, 2017 ruling issued by the Civil Service Commission (hereinafter "Commission"). The ruling granted Officer Isaiah Shannon's (hereinafter "Officer Shannon") appeal and reinstated his employment with the NOPD with all back pay and emoluments. After consideration of the record before this Court and the applicable law, we affirm the decision of the Commission to reinstate Officer Shannon with all back pay and emoluments of employment.

Facts and Procedural History

Officer Shannon was on patrol with Officer Shelton Abram (hereinafter "Officer Abram") on August 15, 2013. While patrolling, the officers noticed a black Chevrolet Impala in which the occupants were not wearing seatbelts. The officers turned their vehicle around and proceeded to follow the Chevrolet Impala. A chase ensued. During the chase, the Chevrolet Impala disregarded a stop sign and collided with a white Ford F-150 truck at the corner of Iberville Street and North Miro Street. Following the collision, Officer Abram proceeded to the driver's side of the vehicle and a physical altercation ensued with the driver. Officer Shannon attempted to pull the passenger out of the vehicle when he noticed a gun on the floorboard. Officer Shannon drew his gun and fired one shot. The duration of the incident was approximately seven seconds. Officer Shannon maintains he shot at the suspect from inside the Chevrolet Impala. Conversely, witnesses stated that he fired at the suspect while outside the vehicle. The passenger fled the scene without injury. Video surveillance from a nearby business was obtained but does not directly show the incident. Officer Shannon completed a written "Use of Force Statement," pursuant to the NOPD rules and regulations, recounting the events of the day. Following the incident, various departments of the NOPD conducted investigations into Officer Shannon's actions.

Lieutenant Kevin Burns (hereinafter "Lieutenant Burns") with the NOPD's Force Investigation Team (hereinafter "FIT") initiated a criminal investigation of the incident. Lieutenant Burns was assigned as the lead criminal investigator and tasked with determining whether criminal misconduct occurred on the part of Officer Shannon. FIT conducted the investigation which included taking Officer Shannon's statement. Lieutenant Burns issued a report which concluded that it was impossible for Officer Shannon to have shot his gun from inside the vehicle since there were no bullet strike marks and no bullets hit the suspect. Additionally, Lieutenant Burns concluded that the video surveillance from the business supported his finding that Officer Shannon discharged his weapon from outside of the Chevrolet Impala. Specifically, he noted that the suspect was approximately 15 to 20 feet away from the vehicle when the crowd appears "startled" and "[ran] for cover." Lieutenant Burns' findings were submitted to the Orleans Parish District Attorney's Office but the District Attorney's Office declined to criminally prosecute Officer Shannon, concluding that the matter was better suited to be handled through the administrative process.

Officer Andre LeBlanc (hereinafter "Officer LeBlanc"), with the Public Integrity Bureau, conducted an administrative investigation. Officer LeBlanc's role was to assist the criminal investigation and analyze the case for policy violations and training issues. Officer LeBlanc also issued a report which concluded that Officer Shannon's conduct violated the NOPD's rules regarding unauthorized force and truthfulness.

On November 4, 2014, Deputy Superintendent Robert Bardy (hereinafter "Superintendent Bardy"), of the Field Operations Bureau, conducted a disciplinary hearing to determine whether Officer Shannon violated departmental rules. After the disciplinary hearing and considering the evidence presented, Superintendent Bardy concluded that Officer Shannon's actions violated the NOPD's rules regarding unauthorized force and truthfulness. Superintendent Bardy recommended dismissal as a result of the violations.

On November 20, 2014, the NOPD sent Officer Shannon a letter advising him that he was dismissed from employment based on Superintendent Bardy's recommendation. The letter set forth several findings that the NOPD contends established that Officer Shannon's testimony was inconsistent and lacked truthfulness. The letter also noted that video surveillance depicts the suspect running from the vehicle and witnesses "ducking" and "moving quickly," indicating Officer Shannon discharged his weapon at the moment the suspect was fleeing. The letter also advised there were no strike marks or damage to the interior of the Chevrolet Impala and witnesses indicated that Officer Shannon discharged the weapon outside of the vehicle.

Officer Shannon appealed the termination of his employment to the Commission. The appeal was heard by a hearing officer over the course of six days. During the hearing, the hearing officer heard extensive testimony and viewed all evidence.

The hearing officer concluded that the NOPD failed to establish, by a preponderance of the evidence, that Officer Shannon's use of force was unauthorized and that the evidence was insufficient to prove he was untruthful about the incident. The hearing officer's report was submitted to the Commission on November 7, 2017. The Commission reviewed the transcript and exhibits from the hearing, as well as the hearing officer's report. The Commission issued its decision on December 20, 2017, finding the evidence submitted by the NOPD insufficient to meet its burden of proof. The Commission acknowledged there was evidence presented to support both Officer Shannon's and the NOPD's versions of events. Ultimately, the Commission granted Officer Shannon's appeal and ordered reinstatement with all back pay and emoluments of employment. This appeal followed.

Standard of Review

This Court has previously determined that decisions by the Commission involving questions of fact and law are reviewed under a manifest error/clearly erroneous standard of review.

In Banks v. New Orleans Police Dep't., 2001-0859, p. 3 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513-14, we articulated the standard of review in civil service cases. First, the review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly erroneous standard. Second, when the Commission's decision involves jurisdiction, procedure, and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. See Stern v. New Orleans City Planning Comm'n, 2003-0817, pp. 5-6 (La.App. 4 Cir. 9/17/03), 859 So.2d 696, 699-700.

Russell v. Mosquito Control Bd. , 2006-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639-640. As such, we will review this matter under a manifest error/clearly erroneous standard of review.

Discussion

The burden of proof regarding termination of an employee rests with the appointing authority. Johnson v. Dep't. of Police , 575 So.2d 440, 444 (La.App. 4 Cir. 1991). It must prove by a preponderance of the evidence that the employee's conduct impaired the efficiency of public service. Id. at 445. As the regulating body, it is the duty of the Commission to decide whether the appointing authority, in this instance the NOPD, has good or lawful cause for taking disciplinary action against an employee. Id. at 443 (citing Walters v. Dep't. of Police of New Orleans , 454 So.2d 106 (La. 1984) ).

The NOPD presents six assignments of error which, taken as a collective, argue the Commission ignored evidence presented and erred in granting Officer Shannon's appeal. The NOPD contends it had cause to terminate Officer Shannon for violation of its policies on unauthorized force and truthfulness. Specifically, the witnesses' statements, video surveillance, lack of strike marks and absence of a bullet hole support its contention that Officer Shannon's statements were not truthful and that he did not discharge his weapon from inside the vehicle. The NOPD maintains these actions justify Officer Shannon's termination.

During the course of the investigation, the NOPD obtained statements from several witnesses who were present at the scene of the incident. It also obtained video surveillance from a nearby business. The NOPD contends this evidence directly conflicts with Officer Shannon's testimony. According to the NOPD, the crowd's reaction in the video illustrates the precise moment shots were fired.

There is also a lack of bullet evidence inside the vehicle which the Commission and the NOPD found compelling. The NOPD maintains this evidence is critical because the lack of strike marks or a bullet hole is proof that Officer Shannon could not have fired his weapon from inside the vehicle. Thus, giving credence to its argument that Officer Shannon was untruthful. The Commission, while acknowledging the impact of the lack of bullet evidence, noted that it was not conclusive proof and considered it in conjunction with a shell casing from Officer Shannon's weapon which was located inside the vehicle.

In Taylor v. Dep't of Police , 2013-1367 (La.App. 4 Cir. 4/16/14), 140 So.3d 231, an undercover NOPD narcotics detective observed a drug transaction at a local high school. Once he identified himself as an officer, he attempted to arrest the suspect and an altercation ensued. A complaint was filed against the officer. Several witnesses were interviewed who alleged the officer kicked the suspect in the head during the altercation, which he and other officers denied. The officer was suspended for violating department rules on unauthorized force and ultimately terminated for violation of the department's truthfulness policy. The Commission granted the officer's appeal and found the NOPD failed to meet its burden of proof in terminating the officer. This Court upheld the Commission's decision finding "[t]he Commission clearly credited the officers' testimonies that they did not observe a kick over the conflicting testimonies...." Id. , 2013-1367,p. 6, 140 So.3d at 234. Additionally, "[t]he Commission clearly believed [the Officer's] version of the events...." Id. , 2013-1367,p. 5, 140 So.3d at 234.

In this case, as in Taylor , there are multiple versions of the events surrounding the incident. The Commission credited Officer Shannon's version of the events over the witnesses' statements. The Commission did not find the witnesses' statements competent and noted the statements contained biases and inconsistencies, which were not explained at the hearing. Additionally, the Commission did not find the video surveillance compelling. It noted the intersection where the incident occurred is viewed in the periphery of the video and lacks audio. Due to the lack of audio, the Commission reasoned, the NOPD could not prove that a gunshot caused the crowd's reaction.

In addition to the foregoing, the NOPD argues the lack of strike marks or an interior bullet hole is evidence Officer Shannon did not fire his weapon from inside the vehicle. Officer Shannon maintains he fired his weapon from inside the vehicle. Additionally, a casing from his weapon was located inside the vehicle. "[W]hen there are two permissible views of evidence, the fact finder's choice cannot be manifestly erroneous." Lapene v. Dep't. of Police , 2011-0902, p. 4 (La.App. 4 Cir. 1/25/12), 81 So.3d 998, 1000 (citation omitted). The Commission was presented with two views of the evidence regarding when Officer Shannon discharged his weapon. Although there was no bullet hole found in the vehicle, a casing from Officer Shannon's weapon was located inside the vehicle. Officer Theodore Koelling (hereinafter "Officer Koelling"), with the NOPD's Advanced Crime Lab, was assigned to process the vehicle in order to locate possible ballistic evidence. He performed a gunshot residue kit test on portions of the interior and exterior of the vehicle. He testified that although he did not locate strike marks in the vehicle, strike marks are not always present when a weapon is discharged inside of a vehicle. While processing the vehicle, Officer Koelling located the .40 caliber shell casing from Officer Shannon's weapon inside the vehicle. Taking into consideration Officer Koelling's testimony, the Commission balanced the lack of strike marks in the vehicle with the fact that a shell casing was found inside. Sufficient information was provided to the Commission for it to weigh which view of the evidence it deemed plausible. Although two views exist as to when Officer Shannon discharged his weapon, the Commission, as the fact finder, chose to accept Officer Shannon's version of the events.

The Commission reasoned that in order to prove Officer Shannon was untruthful and that he knowingly provided false information, the NOPD must first establish he discharged his weapon at a fleeing suspect. As previously noted, the Commission weighed the evidence and determined the NOPD failed to establish Officer Shannon discharged his weapon at a fleeing suspect. This Court has previously held that " 'deference will be given to the factual conclusions of the Commission.' " Pope v. New Orleans Police Dep't , 2004-1888, p. 6 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4 (quoting Smith v. New Orleans Police Dep't , 1999-0024, p. 5 (La.App. 4 Cir. 9/22/99), 743 So.2d 834, 837 ). The NOPD failed to establish Officer Shannon's statements were untruthful. The Commission did not deem the evidence submitted by the NOPD sufficient to meet its burden of proof. Thus, we find the factual conclusions made by the Commission are not contrary to the evidence and as such, will not be disturbed by this Court.

Conclusion

The role of this Court is to review the Commission's actions and determine if those actions were arbitrary or capricious. "A decision by the Civil Service Commission is 'arbitrary or capricious' if there is no rational basis for the action taken by the Civil Service Commission." Waguespack v. Dep't. of Police , 2012-1691, p. 3 (La.App. 4 Cir. 6/26/13), 119 So.3d 976, 978 (citation omitted). Based on the record before this Court, a rational basis exists for the Commission's actions. The Commission identified biases and inconsistencies in the witnesses' statements and ultimately determined the statements were not competent. It also found the video and lack of audio inconclusive. Although the interior of the vehicle did not have strike marks, the Commission took into account the discovery of the shell casing from Officer Shannon's weapon being located inside the vehicle. The Commission believed Officer Shannon's version of events after weighing all the evidence presented. It determined the NOPD did not present sufficient evidence to terminate Officer Shannon for use of unauthorized force and truthfulness.

For the foregoing reasons, we find the record reasonably supports the Commission's finding that the NOPD failed to establish, by a preponderance of the evidence, Officer Shannon violated the NOPD's rules regarding use of unauthorized force and truthfulness. Therefore, the Commission was not manifestly erroneous in finding the evidence presented by the NOPD was insufficient to terminate Officer Shannon and reinstate him with all back pay and emoluments of employment.

AFFIRMED

      A strike mark is a hole or damage to an item.

      Specifically, Officer LeBlanc's report found Officer Shannon violated NOPD Rule 2, regarding moral conduct on unauthorized force and truthfulness, when he discharged his departmental issued firearm at a fleeing unarmed suspect and indicated he shot at the suspect from inside the Chevrolet Impala.

      The record does not reflect that the witnesses who provided statements during the investigation were subpoenaed to testify at the hearing.