author: WINDHORST, J.

text:
    Rodney LOAR v. LUBA WORKER'S COMP TERMINIX SERVICE COMPANY, INC.
    NO. 17-CA-683
    Court of Appeal of Louisiana, Fifth Circuit.
    September 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, RODNEY LOAR, Charlsey J. Wolff, New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, LUBA WORKER'S COMP TERMINIX SERVICE COMPANY, INC., Wade A. Langlois, III, Brittany A. Cooper, Gretna
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   WINDHORST, J.

Appellants/defendants, Terminix Service Co., Inc. and LUBA, appeal the judgment of the Workers' Compensation Judge ("WCJ") in favor of appellee/claimant, Rodney Loar. For the foregoing reasons, we affirm in part and reverse in part the judgment of the WCJ.

Facts

In December 2011, claimant was employed by Terminix as a technician. On December 10, 2011, claimant was spraying the outside of a customer's home when he slipped in a muddy ditch and injured his right knee and hit his head. The parties stipulated that claimant sustained a work-related injury on December 10, 2011 while in the course and scope of his employment with Terminix. The parties agree that claimant suffered a work-related injury to his right knee and head. Thus medical expenses for treatment associated with these injuries are not at issue in this appeal.

Dr. Gordon Nutik initially treated claimant for his right knee injury. Dr. Nutik tried several techniques to relieve the constant pain to claimant's right knee, including performing arthroscopies, Synvisc injections and prescribing use of orthopedic devices. During the time Dr. Nutik treated claimant for his right knee injury, claimant began suffering from a mild limp favoring the right extremity and causing right hip pain. Because claimant continued to have right knee pain, in 2014 Dr. Nutik recommended a total knee replacement of claimant's right knee and referred claimant to Dr. Chad Millet. Dr. Millet performed knee replacement surgery on claimant's right knee on December 3, 2014.

After the right knee replacement surgery, claimant attended extensive physical therapy. Over the course of the next few years, he continued to have trouble with his right knee, and, at various times, instability in that knee caused him to fall. On August 9, 2016, claimant learned that the implant used in his right knee replacement (the Zimmer Persona hardware) had been recalled on March 12, 2015. On August 1, 2017, Dr. Jeffrey Sketchler performed a revision surgery to his right knee and removed the Zimmer Persona hardware. Claimant endured a total of four surgeries to his right knee as a result of the initial, work-related injury.

Because of the right knee injury, claimant asserts that, over the course of the next several years, he sustained multiple falls and several incidents of right knee instability, patellofemoral popping, buckling, altered gait and significant difficulty with daily living. These conditions allegedly caused him to also suffer injuries to his right hip, lower back, left shoulder and left knee. Claimant's medical records from September 18, 2014 through August 9, 2016 from doctors and physical therapists were introduced into evidence. These records indicate claimant repeatedly and consistently complained of pain in these areas and other areas. The records, however, do not provide extensive information and/or opinions on the cause of this pain.

Hip, Back and Right Groin Pain

Claimant's medical records indicate in approximately June 2012, which is after his right knee injury, he began suffering from right hip, groin and lower back pain. His records indicate that claimant had a prolonged antalgic limp with a gait and that he had limitations walking and with stairs. Claimant's pain in these areas increased over time. Dr. Millet noted, on September 18, 2014, that claimant has "referred hip pain," and on November 6, 2014, that the hip pain could be from limping on a bad knee. Dr. Millet ordered a right hip MRI which was denied by the employer as non-compensable. As suggested by Dr. Millet, claimant used his personal health insurance to have the MRI performed. This MRI revealed a bone lesion of the right femur, possible cyst, and osteoarthritic changes of right and left hips. Claimant's pain in these areas was treated primarily with pain medication and physical therapy.

Left Shoulder Injury

Claimant asserts that he injured his left shoulder in May 2015 at physical therapy for his right knee. Claimant's May 2015 physical therapy records indicate the following. On May 4, 2015, claimant's right knee buckled during ambulation on the treadmill. On May 11, 15, and 18, 2015, claimant had "decreased dynamic balance and impaired gait mechanics." On May 18, 2018, claimant's physical therapist noted that claimant "continues to experience buckling [with] occasional episodes of falls." On May 20, 2015, claimant was attempting to sit on a bench when his right knee buckled and he reported a "near fall." Claimant was able to sit on a bench, but reported a sharp pain which quickly subsided.

In August, 2015, claimant went to Dr. Sketchler at Pontchartrain Orthopedics & Sports Medicine for his left shoulder injury. On an August 27, 2015 new problem questionnaire, claimant wrote that he had pain in his lower back and left shoulder due to a fall on his left side when his right knee collapsed. An August 31, 2015 chart note by Dr. Sketchler indicates claimant reported to him that "[h]is left shoulder, left elbow and left wrist have been uncomfortable since a recent fall. He states his right leg gave way and he fell on his left side." Dr. Sketchler performed surgery on claimant's left shoulder on December 11, 2015.

Left Knee Injury

Claimant asserts his left knee injury is related to his initial, work-related, right knee injury, because on June 4, 2016, as claimant was getting out of the shower, his right knee gave way, and he fell between the tub and toilet with his left knee still in the tub. Appellee went to Dr. Sketchler on June 13, 2016 for this injury. Chart notes from this visit state that "[a]bout two weeks ago, his left knee 'buckled'. [sic ] It tends to give away, he states, since his knee replacement in 12/2014 ... since the fall and twist of the left knee, two weeks ago, he is having severe pain with weight bearing in the knee anteriorly and anterior medially." After this fall, an MRI of the left knee showed a medial meniscus tear with some chondromalacia. Dr. Sketchler performed surgery on claimant's left knee on July 22, 2016.

Procedural History

On November 6, 2015, claimant filed a disputed compensation claim with the Officer of Workers' Compensation, disputing the non-authorization of medical treatment recommended by his orthopedist for his back and hip. On December 7, 2015, Terminix and LUBA filed their answer to claimant's compensation claim, in which it denied that claimant's alleged injuries, disabilities and medical conditions are related to and/or caused by his work accident. On March 10, 2017, claimant filed an amended disputed compensation claim, further disputing the non-authorization of medical treatment to his left shoulder and left knee. Claimant also asserted in the amended claim that his total knee replacement had failed because the Zimmer Persona medical equipment was recalled three months after his surgery. On April 13, 2015, Terminix and LUBA filed their answer to claimant's amended compensation claim, denying the allegations therein.

Trial was held on July 20, 2017, following which, on September 12, 2017, the WCJ issued a judgment, finding that: (1) claimant's injuries to his head and right knee are compensable workplace injuries; (2) claimant's testimony was credible; (3) claimant's post-accident injuries to his left knee, left shoulder, right hip and low back were a foreseeable consequence to the instability in claimant's right knee, which was caused by the Zimmer Persona device failure, and are compensable; and (4) Terminix's denial of treatment to claimant's left shoulder, left knee, right hip and low back, and refusal to pay for treatment and to reimburse claimant for out-of-pocket expenses related thereto was arbitrary, capricious and unreasonable. The WCJ ordered Terminix to pay $5,000 in penalties; $9,500 in attorney's fees and legal interest; and for any out-of-pocket expenses and costs for medical treatment not authorized to the left knee, left shoulder, low back and right groin. This appeal followed.

Assignments of Error

Appellants assert that the WCJ erred as follows: (1) ruling on issues not properly before the court; (2) finding claimant established subsequent accidents; (3) finding claimant's subsequent conditions are causally related to claimant's work accident; (4) awarding claimant all out-of-pocket expenses and costs of medical treatment; and (5) awarding claimant penalties, attorney's fees, and judicial interest. In his Answer to the Appeal, claimant asserts that this is a frivolous appeal and seeks an award of damages and attorney's fees.

Assignment of Error One

Appellants assert that the WCJ erred in addressing issues not properly before the court, including claimant's right hip and lower back injuries and the alleged defectiveness of the knee replacement device used in claimant's surgery. Appellants argue that these issues were not properly before the WCJ because they were not listed in claimant's pre-trial statement.

La. R.S. 23:1317 (A) states as follows:

The workers' compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself. The workers' compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.

This statute "reflects the legislature's intent, in compensation cases, to materially relax evidentiary and procedural rules and subordinate procedural considerations to the discovery of the truth and the protection of substantive rights." Meche v. Foremost Management Corp., 93-1390 (La. App. 3 Cir. 5/4/94), 640 So.2d 585, 587. "A trial judge has great discretion in deciding whether to receive or refuse offered testimony of witnesses." Id., citing Bennett v. SEDCO Maritime, 520 So.2d 894 (La. App. 3d Cir. 1987).

The disputed claim for compensation lists medical treatment for back and hip under the bona-fide dispute section of the form. In addition, there are references throughout the medical records and in the pleadings referring to claimant's issues with his right hip and back. Claimant also testified at trial that he was walking with a limp and suffered from lower back pain, which then moved into the right hip. He testified that appellants did not pay medical expenses associated with his pain. Appellants did not object on this issue during the workers' compensation proceedings. These issues were also addressed in the post-trial briefs. Considering these facts, the discretion the WCJ has in compensation cases and in deciding whether to consider evidence, as well as the lack of an objection relative thereto by appellants, we find no abuse of discretion by the WCJ in addressing the right hip and back claims.

We also find no error as to the WCJ's consideration of the alleged defectiveness of the knee replacement device used in claimant's surgery. The WCJ did not attribute any liability against appellants for the use of the alleged defective device nor did it award claimant any damages associated with the device. The WCJ merely considered the alleged defectiveness of the device as it relates to a possible cause of claimant's injuries.

In light of the foregoing, this assignment of error lacks merit.

Assignment of Error Two

Appellants assert that the WCJ erred in finding claimant established subsequent accidents causing injury to his left shoulder and left knee. Louisiana jurisprudence indicates that the appellate court's review of a workers' compensation case is governed by the manifest error or clearly wrong standard. Lopez v. Marques Food Distribs., 11-424 (La. App. 5 Cir. 12/28/11), 80 So.3d 1248 (citation omitted). Under this standard, an appellate court is precluded from setting aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Id. In applying the manifest error standard, the appellate court need not determine whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id. If the trial court findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though it may be convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id., citing Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La. 1990) ; Prevost v. Interior Gardens, Inc., 04-0274 (La. App. 4 Cir. 10/6/04), 887 So.2d 522.

The WCJ's "determinations as to whether the worker's testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error." Smith v. Roy O. Martin Lumber Co., 03-1441 (La. App. 3 Cir. 04/14/04), 871 So.2d 661. In a workers' compensation case, an employee's workplace accident is presumed to have caused or aggravated his disability when he proves that: the disabling symptoms appeared after the accident and there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the disabling condition. LaSalle v. City of Lake Charles, 17-32 (La. App. 2 Cir. 05/24/17), 222 So.3d 148. If the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry his burden of proof. Id.

Under Louisiana jurisprudence, the general rule is that the "natural consequences that flow from the primary injury are compensable absent an independent intervening cause." Buxton v. Iowa Police Dep't., 09-520 (La. 10/20/2009), 23 So.3d 275 (citations omitted). Recovery is generally available for all natural consequences that flow from the primary injury absent an independent intervening cause. Namias v. Sunbelt Innovative Plastics, LLC, 15-1380 (La. App. 1 Cir. 2/24/16), 190 So.3d 745. The key inquiry is the relationship between the second injury and the initial, work-related injury. Id.

Appellee asserts that after the knee replacement surgery to his right knee, his right knee began buckling causing him to fall and that, in May 2015, a fall at physical therapy caused him to injure his left shoulder. Appellee's physical therapy progress notes in May 2015 indicate the following: (1) on May 4, 2015, appellee reported that his right knee buckled during ambulation on the treadmill; (2) on May 18, 2015, appellee reported his knee is slowly improving but he continues to experience his knee buckling and occasional episodes of falls; and (3) on May 20, 2015, appellee reported his knee buckled when he attempted to sit on a bench and had a near fall. On an August 27, 2015 new problem questionnaire at Pontchartrain Orthopedics & Sports Medicine, appellee wrote that he had pain in his lower back and left shoulder due to a fall on his left side when his right knee collapsed. An August 31, 2015 chart note indicates appellee told his doctors that "his left shoulder, left elbow and left wrist have been uncomfortable since a recent fall. He states his right leg gave way and he fell on his left side. He is a left hand dominant individual." Dr. Sketchler's notes from October 31, 2015, after an office visit, again reflect that appellee has had left shoulder and back pain since a fall where his right leg gave way and he fell on his left side. At trial, appellee testified that in 2015, his knee began buckling and that his stability was waning. He stated that while he was doing leg exercises, his right knee buckled and he fell. He further stated that, he extended his left arm to break his fall on a bench that was nearby. He testified that the fall hurt, he was embarrassed, and he recovered himself but that he did not realize the severity at the time of the fall.

While claimant's medical records support that his right knee continued to cause him pain, the record is lacking in circumstances that would corroborate claimant actually fell at physical therapy and injured his left shoulder. Claimant asserts he fell and injured his left shoulder in May 2015, but, based on the records, he did not seek medical attention for the injury until the end of August 2015. There is an insufficiency of evidence corroborating that he injured himself in May 2015 as the records do not state he injured his left shoulder, and he did not go to the doctor for this injury until three months later. Thus, based on the evidence, the probabilities of causation are not certain and, we cannot say the claimant carried his burden of proof for proving that he suffered a subsequent accident injuring his left shoulder due to his work-related injury. Consequently, we find that the WCJ's finding that claimant suffered a subsequent accident that caused him to injure his left shoulder is manifestly erroneous.

As to his left knee injury, appellee asserts that, on June 4, 2016, as he was getting out of the shower, his surgically repaired right knee buckled and caused him to fall and injure his left knee. Dr. Sketchler's chart notes on June 13, 2016 about appellee state that "[a]bout two weeks ago, his left knee 'buckled'. [sic] It tends to give away, he states, since his knee replacement in 12/2014 ... since the fall and twist of the left knee, two weeks ago, he is having severe pain with weight bearing in the knee anteriorly and anterior medially." Appellee asserts that Dr. Sketchler's reference to his left knee buckling is an error. Given that Dr. Sketchler refers to the knee that was replaced in 12/2014, which was the right knee, appellee's assertion appears to be correct.

Dr. Sketchler's July 22, 2016 operative report for the left knee states that claimant's "orthopedic history is significant for a contralateral right total knee replacement by another surgeon and he has had symptoms of subjective instability for which he has already seen his surgeon and may be a candidate for revision surgery." An October 3, 2016 physical therapy note from therapy for the left knee states that "[t]he patient's ability to perform functional standing balance and strengthening exercises is limited due to his R knee buckling intermittently throughout the session. The patient was only able to complete 10 of the monster walks prior to R knee buckling leading to near fall." Given the above medical evidence regarding claimant's left knee injury and other evidence presented at trial, we find no error in the WCJ's finding that claimant established that he had a subsequent accident and injured his left knee.

Assignment of Error Three

Appellants assert that the Workers' Compensation Judge erred in finding that claimant's subsequent conditions are causally connected to his work accident. The record, including but not limited to the chart notes referenced above, shows that claimant consistently had problems with his initial injury to his right knee even after his knee replacement surgery. Claimant's medical and physical therapy records indicate that after the initial injury, he began walking with a limp. Physical therapy records repeatedly state that he had "decreased dynamic balance and impaired gait mechanics." Dr. Millet opined after a November 6, 2014 exam that the pain in claimant's hips "could be from limping on [a] bad knee." At this visit, claimant still had pain in his right knee and complained of pain in both hips that had been present for a year or more. Dr. Millet's records also note that claimant had continued pain in the right knee, weakness in his quadriceps, chronic instability in his right knee, and buckling of the right knee. Indeed, on August 24, 2016, claimant underwent reverse/replace knee joint surgery on his right knee.

Thus, having considered the record in its entirety, we find no error in the WCJ's conclusion that claimant's subsequent injuries to his right hip, groin, lower back and left knee were caused by his initial, work-related injury and thus are compensable. Because, for the reasons stated above, we concluded that the claimant did not meet his burden of proof with regard to the left shoulder injury, we also find that the WCJ was manifestly erroneous in finding that the left shoulder injury is a compensable injury.

Assignment of Error Four

Appellants assert that the Workers' Compensation Judge erred in awarding claimant all out-of-pocket expenses and costs of medical treatment to the left knee, left shoulder, low back and right groin because approval for the treatment was not requested prior thereto, as required by La. R.S. 23:1142.

La. R.S. 23:1142(B) provides that a health care provider may not incur more than $750.00 in nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. La. R.S. 23:1142(E) sets forth an exception, which provides that if "the payor has denied that the employee's injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury." Louisiana jurisprudence provides that under La. R.S. 23:1142(E), when an employer or insurer has denied that a claimant's injury is compensable, the statutory cap does not apply. Perrilloux v. Uniforms by Kajan, Inc., 13-377 (La. App. 5 Cir. 12/27/13), 131 So.3d 1026 ; Washington v. Lyon's Specialty Co., 96-263 (La. App. 1 Cir. 11/08/96), 683 So.2d 367.

Louisiana courts have held that an employer who disputes the compensability of its employee's injury should not be allowed to complain that it was not given the opportunity to authorize previously incurred medical expenses. Carradine v. Regis Corp., 10-529 (La. App. 3 Cir. 11/03/10), 52 So.3d 181, 192. See also, Martin v. Elmwood Medical Center, 95-415 (La. App. 5 Cir. 11/15/95), 665 So.2d 470. In reaching this conclusion, the courts have reasoned that "It does not further the purpose of La. R.S. 23:1142 to punish employees for failing to request authorization from employers who do not accept their liability for benefits under the law of workers' compensation." Id. In addition, the application of the exception in La. R.S. 23:1142(E) to unauthorized medical expenses incurred before the employee seeks workers' compensation benefits ensures that claimants in this situation are not unnecessarily deprived of reimbursements for medical services which the employer is typically required to furnish.

The record indicates that, in January 2015, Dr. Millet requested approval for an MRI due to pain in right groin and hip but workers' compensation denied the request. Claimant's physical therapy records dated January 2015 reflect that insurance limitations were placed on claimant's treatment and that, in April 2015, claimant was denied further treatment. In appellants' answers to claimant's disputed claim for compensation and amended disputed claim for compensation, appellants denied that claimant's alleged injuries to his right hip, low back, left shoulder and left knee are related and/or caused by his alleged work accident.

Because Terminix denied and continues to deny that claimant's subsequent injuries are compensable injuries, the exception in La. R.S. 23:1142(E) applies, and none of claimant's medical expenses can be capped based on a failure to obtain prior consent from Terminix or its workers' compensation insurer. Accordingly, we find no error in the WCJ's award of out-of-pocket medical expenses to claimant. This assignment of error lacks merit.

Because we find that the left shoulder injury is not compensable, appellants are not obligated to pay out-of-pocket expenses associated with this injury. Thus, we reverse the judgment to the extent expenses associated with the left shoulder are awarded.

Assignment of Error Five

Appellants last assert that the WCJ's award of penalties and attorney's fees is manifestly erroneous because the claims were reasonably controverted. We find that the WCJ erred in awarding penalties and attorney's fees.

Under Section 23:1201(F), both penalties and attorney's fees may be awarded for the failure to provide timely payment of benefits or medical expenses, unless, as provided in Section 23:1201(F)(2), the claim is "reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control." Depending on the circumstances, a failure to authorize treatment is effectively a failure to furnish treatment that can result in the imposition of penalties and attorney's fees. Stelly v. Health S. Rehab., 2003-171 (La. App. 3 Cir. 07/02/03), 854 So.2d 960, citing Authement v. Shappert Eng'g, 02-1631 (La. 2/25/03), 840 So.2d 1181. To reasonably controvert a claim, the defendant must have a valid reason or evidence upon which to base his denial of benefits. Stelly, Id. at 967, citing Brown v. Texas-LA Cartage, 98-1063 (La. 12/1/98), 721 So.2d 885.

An award of attorney's fees in a workers' compensation case is penal in nature, as it is intended to discourage indifference by employers and insurers. Adams v. Bayou Steel Corp., 01-1392 (La. App. 5 Cir. 04/10/02), 813 So.2d 1285. Attorney's fees should not be imposed in doubtful cases, or where a bona fide dispute exists as to the employee's entitlement to benefits. Id. The mere fact that an employer loses a disputed claim is not determinative. Id. The test to determine whether the employee's right to benefits was reasonably controverted is, given the facts, medical and otherwise, known to the employer or his insurer, whether the employer or insurer had a reasonable basis to believe that medical expenses and compensation benefits were not due the employee. Id.

After considering the record in its entirety, we find that the WCJ was manifestly erroneous in awarding penalties and attorney's fees to claimant. While we find that most of claimant's subsequent injuries are related and/or caused by the initial, work-related injury, the evidence, medical and otherwise, shows that appellants reasonably controverted these claims. In addition, the record reflects that appellants may not have been aware of some of the medical treatment claimant sought for these injuries and/or medical records indicating the relationship between his work injury and the other injuries. Accordingly, we reverse the WCJ's finding that Terminix's denials of treatment to claimant were arbitrary, capricious and unreasonable, and vacate the WCJ's award of penalties and attorney's fees to claimant.

In light of the foregoing, we also decline to award appellee any damages based on his assertion that this is a frivolous appeal.

Conclusion

For the reasons stated above, we affirm the WCJ's judgment finding that claimant's post-accident injuries to his left knee, right hip and low back were a foreseeable consequence to the instability in claimant's right knee and are compensable; as well as the WCJ's award of out-of-pocket expenses related to these injuries. We reverse the WCJ's finding that claimant's left shoulder injury is compensable, and the judgment to the extent medical expenses associated therewith are awarded. We also reverse the WCJ's finding that Terminix's denial of treatment to claimant's left shoulder, left knee, right hip and low back, failure to pay for treatment and failure to reimburse claimant for out-of-pocket expenses related thereto was arbitrary, capricious and unreasonable, and we vacate the WCJ's award of attorney's fees and penalties.

AFFIRMED IN PART, AND REVERSED IN PART


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Steven MINOR, Appellant
    No. 52,091-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018.
    LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    ROBERT S. TEW, District Attorney, JOHN G. SPIRES, STEPHEN T. SYLVESTER, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, MOORE, and GARRETT, JJ.
   GARRETT, J.

After a bench trial, the defendant, Steven Minor, was convicted of attempted second degree murder and sentenced to 20 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant appealed, arguing that the evidence was insufficient to support his conviction and that his sentence was excessive. We affirm the defendant's conviction and sentence.

FACTS

On April 22, 2016, the City of Bastrop police were dispatched to Austin Street in reference to a shooting. When police arrived, they found the victim, Rolandus Vaughn, under the carport of a home. He had suffered gunshot wounds to his hip, stomach and wrist. The victim was transported to the hospital by helicopter. Fortunately, he recovered from his injuries, but the bullet in his hip apparently could not be removed.

Based upon eyewitness accounts, police developed the 18-year-old defendant as the shooter. The eyewitnesses saw the two men argue and the defendant draw a gun before firing shots at the victim. The defendant admitted shooting the victim, but insisted that he only wanted to scare him and did not intend to hurt or kill him. The defendant was arrested and charged with attempted second degree murder.

After the defendant waived his right to a jury trial, a bench trial was held in June 2017. After considering the evidence and testimony, the trial court found the defendant guilty as charged of attempted second degree murder. In August 2017, the trial judge sentenced the defendant to 20 years at hard labor without benefit of parole, probation, or suspension of sentence. A timely motion to reconsider, which only requested the imposition of a sentence of no more than 10 years at hard labor, was summarily denied by the trial court. The defendant appealed.

SUFFICIENCY OF EVIDENCE

The defendant contends that the evidence was insufficient to convict him because the state failed to prove that he had the requisite specific intent to kill necessary to support the verdict of attempted second degree murder. He argues that he should have been convicted of only aggravated battery.

The state argues that the evidence, when viewed in the light most favorable to the state, was clearly sufficient to satisfy any rational trier of fact that the defendant possessed the specific intent to kill the victim and to support the verdict of attempted second degree murder. The state asserts that the victim's testimony that the defendant pointed a gun at his head and then shot him several times was alone sufficient to establish the crime. Further, the eyewitness accounts corroborated that the defendant approached the victim, argued with him, pulled out a gun, and shot the unarmed man. The state contends that this evidence is sufficient to establish that the defendant faced the victim when he first shot him and then continued to shoot at him after the victim turned to run away. The state points out that further evidence showed that the defendant admitted to arming himself after an incident with the victim the night before the shooting and to waiting at a stop sign with the gun the following morning until he saw the victim approach. This evidence, according to the state, was sufficient to support the verdict.

Law

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied , 541 U.S. 905, 124 S. Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So. 3d 717, writ denied , 16-1479 (La. 5/19/17), 221 So. 3d 78. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So. 2d 517 ; State v. Robinson , supra . The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So. 2d 442. A reviewing court accords great deference to the factfinder's decision to accept or reject the testimony of a witness in whole or in part. State v. Robinson , supra ; State v. Moss , 48,289 (La. App. 2 Cir. 11/20/13), 127 So. 3d 979, writ denied , 13-2975 (La. 8/25/14), 147 So. 3d 697.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Robinson , supra ; State v. Randle , 49,952 (La. App. 2 Cir. 6/24/15), 166 So.3d 465.

To sustain a conviction for attempted second degree murder, the state must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim's death. La. R.S. 14:27 ; 14:30.1. Although the statute for the completed crime of second degree murder allows for a conviction based on "specific intent to kill or to inflict great bodily harm," La. R.S. 14:30.1, attempted second degree murder requires specific intent to kill. State v. Bishop , 01-2548 (La. 1/14/03), 835 So.2d 434. Proof of specific intent to inflict great bodily harm is insufficient for a conviction for attempted second degree murder. State v. Lewis , 51,672 (La. App. 2 Cir. 11/15/17), 245 So.3d 233 ; State v. Patterson , 50,305 (La. App. 2 Cir. 11/18/15), 184 So.3d 739, writ denied , 15-2333 (La. 3/24/16), 190 So.3d 1190.

Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Murray , 49,418 (La. App. 2 Cir. 1/14/15), 161 So.3d 918, writ denied , 15-0379 (La. 4/8/16), 191 So.3d 582. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Bishop , supra . Specific intent to kill may also be inferred from the extent and severity of the victim's injuries, and the defendant's use of a deadly weapon to produce those injuries, which involved serious risk of death. State v. Washington , 50,424 (La. App. 2 Cir. 3/16/16), 188 So.3d 350, writ denied , 16-0718 (La. 4/13/17), 218 So.3d 119. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill. State v. Patterson , supra . The determination of whether the requisite intent is present is a question for the trier of fact. State v. Lewis , supra ; State v. Patterson , supra .

Trial Testimony

At trial, testimony was given by the defendant and the victim, as well as several Austin Street residents who witnessed the shooting. Although all of the witnesses agreed that the defendant shot the victim, the details varied in several respects.

The victim testified that the defendant's cousin stole a television from his friend, Mike Lyons. The victim identified the thief to Mike, and a verbal confrontation ensued between the cousin, the defendant, and Mike on the night before the shooting. The victim indicated that he was present at the altercation but did not participate in it. At about 9 o'clock the next morning, as he walked on Austin Street, the victim was approached by the defendant, who wanted him to walk down a nearby secluded trail. The victim told the defendant to go on and get out of his face. The defendant pulled a gun on the unarmed victim, aiming it at his head. The victim testified that he raised his hands and told the defendant to put down the gun and "get on down the road." The defendant lowered the gun and shot the victim first in the left hip and then in the right side of his abdomen. The victim testified that he turned to run and that the defendant shot at him a third time, striking him in his right wrist. The victim then fled down the street to a house, where he collapsed in the carport. He testified that the defendant turned and walked off.

Larry Nix, an Austin Street resident, said that the victim had been sitting with him in his carport before the shooting. The victim walked in one direction to go home and Mr. Nix walked in the other to head to the grocery store. He walked past the defendant. He stopped when he heard the victim and the defendant arguing; the victim told the defendant to go on down the road. The defendant then produced a gun and pointed it at the victim's body. Mr. Nix heard three gunshots. The second shot was fired after the unarmed victim ran. After the third shot, the victim hollered and fell down. The defendant ran past Mr. Nix and got in a gray car, which he believed was a Marquis. Mr. Nix went to help the victim, who has been shot at least twice.

Another neighbor, Jerome White, was walking his dog when he saw the defendant walking "up and down the road." When the victim walked out of Mr. Nix's driveway, Mr. White saw the defendant approach the victim. According to Mr. White, the defendant pulled out a gun and told the unarmed victim to get down the road. The defendant first pointed the gun at the victim's head; the victim told him to go on about his business while dodging side to side. The defendant dropped the gun to waist level and fired two times. The victim was facing the defendant for the first shot but not the second one. After the shooting, Mr. White saw the defendant run down the street and get in a gray Crown Victoria. Mr. White checked on the victim, who was in a carport, and had someone call the police and an ambulance.

Lisa Lyons testified that the victim was a friend of her son, Mike. She was in her yard when she heard the men arguing. She heard the victim saying, "Go on, man." She called out to the victim to ask if she should call the police. She then went inside and called. As she was coming back outside, she heard one gunshot.

The defendant testified on his own behalf. He admitted that he pointed the gun at the victim and fired two rounds, both of which struck the victim. However, he asserted that he did not intend to hurt or kill the victim, that he only wanted to scare him, and that "multiple altercations" had led up to the shooting. He described an incident the night before the shooting when he and his cousin participated in a fight. While the victim was present at that event, he was not involved in the fight. However, the defendant testified that, had he had his gun that night, he "probably" would have shot the victim then because he was present and encouraging the people with whom the defendant was fighting.

The defendant testified that, after the fight, he went to his grandmother's house on Austin Street where he kept his gun. When he left the house the next morning, he had the gun with him. (He testified that it never crossed his mind that he was a convicted felon with a firearm.) The defendant said he went outside at 7 a.m. and stood by a stop sign, something he said he did every day. He also said he was waiting to be picked up. The defendant testified that he and the victim walked up to each other and had a "minor" argument that got "intense." The victim asked if he had learned his lesson the night before. The defendant asked him, "Why y'all did that?" The victim told him to stop stealing. After the defendant denied stealing, the victim told him that if he stole, it would happen again. The defendant testified that the victim then "provoked" him to pull out his gun by walking up to him with his hands in his pants. At that point, the defendant said he felt like the victim was "gonna try to do somethin' to me," so he pulled out his gun and began shooting and running. He admitting firing the weapon twice but denied shooting a third time. He also made a distinction between "pointing" and "aiming" the gun, insisting that he merely "pointed" it in the general direction of the victim and "shot a couple of shots," without knowing where they would land. His definition of "aiming" the gun involved walking up to a person, holding the gun with two hands, aiming directly at the person, and trying to hit him.

Additionally, the defendant accused the other witnesses of lying in their testimony. In particular, he said they lied about him approaching the victim and calling out to him and the victim holding up his hands and telling the defendant to go on.

Discussion

Upon review of the evidence in the light most favorable to the state, we find that the state's proof is sufficient to support the verdict of attempted second degree murder. The defendant admitted that he shot the victim, but disputed that he had the specific intent to kill him. As observed by the trial court, the evidence belies the defendant's assertions. The trial court accepted the testimony of the victim and Mr. White that the defendant first pointed the gun at the victim's head before dropping it and then shooting the unarmed victim three times, and clearly rejected the defendant's claim that he shot at the victim to scare him as self-serving. The trial court was also unconvinced by the defendant's assertion that he "just shot without aiming." These credibility determinations are reasonably supported by the record. Certainly the defendant's act of pointing the gun at the victim's head, followed by his actual shooting of the unarmed victim at least two times as he ran away, reasonably supports the inference that the defendant intended to kill the victim, rather than to scare him. The fact that defendant was able to shoot the victim more than once also supports the conclusion that he was firing more than warning shots. Most telling, however, was the defendant's admission that he would have shot the victim the night before if he had had a gun. This fact, when coupled with his subsequent arming of himself the following morning and waiting on the street until the victim appeared, buttresses the conclusion that he actively desired to kill the victim. These facts are sufficient to support the trial court's verdict.

This assignment of error is without merit.

EXCESSIVE SENTENCE

The defendant argues that the sentence of 20 years without benefits was constitutionally excessive, given the trial court's observation that the facts presented a "close question," his young age, and his minimal criminal record.

The state contends that the sentence imposed was directly proportionate to the crime, and was less than half of what could have been imposed for this senseless crime. The state points out that, prior to imposing sentence, the trial court duly considered all relevant factors, which included the defendant's youth, the victim's attitude, the fact that things did not turn out as badly as they could have, and the defendant's prior gun involvement.

Law

Where a defendant's motion to reconsider sentence alleges mere excessiveness of sentence, on appeal the reviewing court is limited to considering whether the sentence is constitutionally excessive. State v. Mims , 619 So.2d 1059 (La. 1993) ; State v. Mizell , 50,222 (La. App. 2 Cir. 11/18/15), 182 So.3d 1082.

A sentence violates La. Const. Art. I § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than the purposeless infliction of pain and suffering. State v. Smith , 01-2574 (La. 1/14/03), 839 So. 2d 1 ; State v. Dorthey , 623 So. 2d 1276 (La. 1993) ; State v. Lapoole , 51,199 (La. App. 2 Cir. 2/15/17), 215 So. 3d 430, writ denied , 17-0618 (La. 11/28/17), 230 So. 3d 220. A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Weaver , 01-0467 (La. 1/15/02), 805 So. 2d 166 ; State v. Lapoole , supra .

The trial court is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed will not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Washington , 49,236 (La. App. 2 Cir. 8/13/14), 147 So.3d 784. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams , supra ; State v. Lapoole , supra .

An attempted second degree murder conviction carries a sentencing exposure of not less than 10 years, nor more than 50 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:27(D)(1)(a) ; La. R.S. 14:30.1 ; State v. Christopher , 50,943 (La. App. 2 Cir. 11/16/16), 209 So. 3d 255, writ denied , 16-2187 (La. 9/6/17), 224 So. 3d 985.

Discussion

In the instant case, the defendant's motion to reconsider sentence asserted only a request for the trial court to impose a lesser sentence. This effectively raises only an argument that the imposed sentence was excessive.

When the defendant appeared for sentencing, his counsel argued that the case fit the facts of an aggravated battery and requested the imposition of a 10-year sentence. Prior to sentencing, the trial court observed that this case presented a "close question" as to specific intent. It also stated that it was considering a presentence investigation report, which included the victim's request for restitution for helicopter medical transport and hospital bills, which totaled about $47,000. The trial court found as a particular concern the fact that this event occurred in a "residential neighborhood," with "people trying to go about their normal lives and having to suffer the indignity of having somebody shoot somebody down on their street." The trial court noted the defendant's age at the time of the crime and the fact that his criminal record included a charge for principal to armed robbery, where he threw a gun out of a window. The court considered that the defendant was convicted of "an offense involving a gun," and then shot the victim in the instant case less than a year later. The trial court noted that the defendant also had pending charges for illegal possession of a firearm from April 15, 2015. It concluded that the "common denominator in everything for which he's committed to paper is a gun and he finally used it." Consideration was given for the fact that the defendant was "currently on probation or awaiting probation revocation for an offense involving a gun," and the court noted that it was "leaning toward a more severe sentence because of this gun...business." For these reasons, the trial court stated that "[o]n paper he looks like a dangerous person." The trial court also considered that the victim had been shot three times, as well as the fact that this was the third time the defendant "has been brought before the system for using a gun or having a gun-involved crime." Ultimately, due in large measure to his prior gun involvements, the trial court sentenced the defendant to 20 years at hard labor without benefits.

We find that the imposed sentence is not constitutionally disproportionate to the nature of the offense or the offender. Despite the defendant's young age, he shot an unarmed man several times while the man was retreating, causing serious injury and trauma to the victim. Notwithstanding the defendant's arguments to the contrary, these facts fit the crime of attempted second degree murder. The defendant's motivation for shooting the victim concerned a previous altercation which did not involve the victim, but whose presence at the scene nevertheless angered the defendant to such an extent that he armed himself the following morning and apparently waited to approach the victim. At the time he committed this offense, the defendant was on probation for a previous felony conviction that involved disposing of a gun used by someone else in an armed robbery, and he had charges pending against him for illegal possession of a stolen firearm. Thus, he was a second-felony offender. These circumstances show that the defendant has failed to benefit from prior leniency in sentencing and has exhibited a continuing disregard for gun laws. While the defendant's prior offenses involved gun possession, the present offense escalated to the discharge of a weapon against an unarmed individual.

Considering the facts of this matter, the chosen penalty is not shocking to the sense of justice or a purposeless imposition of pain and suffering. This assignment of error is meritless.

CONCLUSION

The defendant's conviction and sentence are affirmed.

AFFIRMED.

      In October 2016, the state filed a motion to invoke the firearm sentencing provisions, pursuant to La. C. Cr. P. art. 893.1 et seq. At the conclusion of the trial, the trial judge held that the state had proven the facts necessary to invoke the firearm sentencing provisions. At sentencing, the trial court ruled that, since it imposed a sentence in excess of the mandatory minimum set forth in La. C. Cr. P. art. 893.3, it was unnecessary to make any more specific ruling, and no further action was taken on it. Neither party objected or raised the matter on appeal.


author: COX, J.

text:
    Richard MCDONALD, Plaintiff-Appellee v. CITY OF BASTROP, Defendant-Appellant
    No. 52,366-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018.
    HUDSON, POTTS & BERNSTEIN, L.L.C., By: Brian P. Bowes, Johnny R. Huckabay, II, Monroe, Counsel for Appellant
    LAW OFFICES OF STREET & STREET, By: C. Daniel Street, Monroe, Counsel for Appellee
    Before COX, STEPHENS, and MCCALLUM, JJ.
   COX, J.

This appeal arises out of the Office of Workers' Compensation, District 1-East, Ouachita Parish, Louisiana. Richard McDonald ("Mr. McDonald") was injured while working for the City of Bastrop ("City"). The matter went to trial on the sole issue of whether Mr. McDonald had retired from the workforce. The Office of Workers' Compensation (OWC) court found Mr. McDonald had not retired. The City now appeals. For the reasons outlined below, the OWC court's judgment is affirmed.

FACTS

Mr. McDonald was employed by the City as a fire captain. Mr. McDonald was injured in an accident on April 21, 2013, at a house fire in Bastrop, Louisiana. He stated he was pulling a fire hose over his shoulder and the hose got caught up and jerked his shoulder, injuring his neck and shoulder. Mr. McDonald stated that after the accident, he reported his injury, sought medical treatment, and was referred to Dr. Carlton Greer, a neurosurgeon in Monroe, Louisiana. Dr. Greer's treatment included neck surgery.

When Mr. McDonald was released back to work, he was restricted to lifting no more than 50 pounds, which was later reduced to 25 pounds. Mr. McDonald began receiving workers' compensation benefits in September of 2013. On September 26, 2016, Mr. McDonald filled out a disputed claim for compensation, Form 1008, against the City. He stated on his 1008 Form that his supplemental earnings benefits ("SEBs") were wrongfully discontinued based on a false claim of retirement/voluntary withdrawal from the workforce.

On September 7, 2017, the matter went to trial in OWC court. Mr. McDonald testified that he was told by the fire chief that there was no work for him to do within his restrictions and that retirement was his only option. Mr. McDonald had enough time with the City to retire, but planned to fully participate in the DROP program. He participated in DROP for about two months before retiring.

Alice Bond assisted Mr. McDonald in finding another job. Mr. McDonald applied to work at the Fire Marshal's office, a dispatcher position for a trucking company, and a few other employment listings Ms. Bond provided to him. He stated he did not apply to the jobs at fast food restaurants. Mr. McDonald was not hired by any of these employers. Mr. McDonald stated that based on these employment applications, his SEBs were reduced to an earning capacity of $10.20 per hour, which was about a 50 percent reduction. He received his reduced SEBs from January 6, 2016, until September 2016. Mr. McDonald received a letter stating he was no longer eligible for his SEBs because of retirement/voluntary withdrawal from the work force.

Mr. McDonald testified that before his injury, he did not plan to retire immediately, but to participate in DROP. He said he would have liked to continue to work and intended to keep working somewhere. He said his retirement was due to the surgery and lifting limitations. Mr. McDonald stated that he did not contact Ms. Bond for more employment opportunities and has not applied to other jobs. Mr. McDonald testified that he still has severe neck pain, headaches, pain in his shoulders, numbness, problems sleeping, and trouble driving, especially looking behind himself. Mr. McDonald still deer hunts, sometimes two or three times a week. He is also still able to fish and launch his own boat.

Mr. McDonald said that Dr. Greer retired and he began seeing Dr. Cain. Dr. Cain told Mr. McDonald that he had degenerative disk disease in his neck and it will only get worse as he gets older. Dr. Cain also told him that he needed to "learn to live with it."

Della Hildebrand, an adjuster with Risk Management, Inc., testified that Mr. McDonald received temporary, total disability benefits from May 21, 2013, to August 16, 2015, and SEBs from August 27, 2015, to August 11, 2016.

On January 28, 2018, the OWC court signed the judgment in favor of Mr. McDonald and against the City. The OWC court ordered the City to pay Mr. McDonald $1,303.76 per month beginning August 11, 2016, and continue paying in accordance with the law. Mr. McDonald's claims for penalties and attorney fees were denied because the court found the termination of SEBs was not arbitrary and capricious. In oral reasons, the OWC court stated, "jurisprudence has held unemployment caused solely by an employment injury is not considered 'retirement' for purposes of terminating supplemental earnings benefits." In finding that the discontinuance of benefits was not arbitrary and capricious, the court stated, "segments of his responses to vocational rehabilitation efforts caused this court to question his intent." The City now appeals.

DISCUSSION

The City's sole assignment of error is that the OWC court erred by finding Mr. McDonald had not retired within the meaning of La. R.S. 23:1221(3)(d)(iii). The City argues Mr. McDonald voluntarily retired because he stopped working and has not continued to look for employment. It further argues that the only evidence submitted that displayed Mr. McDonald wants to continue to work is his own testimony.

Factual findings of an OWC judge are subject to the manifest error standard of review. In order for a reviewing court to reverse an OWC judge's factual findings, it must find that a reasonable factual basis does not exist and the record establishes that the factual findings are clearly wrong. Lafayette Bone & Joint Clinic v. Louisiana United Bus. SIF , 2015-2137 (La. 6/29/16), 194 So.3d 1112 ; Turner v. Chicago Bridge & Iron Co. , 52,167 (La. App. 2 Cir. 6/27/18), 251 So.3d 615, 2018 WL 3131433.

Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State through Dep't of Transp. & Dev. , 617 So.2d 880 (La. 1993) ; Turner v. Chicago Bridge & Iron Co., supra. Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

SEBs are provided for in La. R.S. 23:1221(3). La. R.S. 23:1221(3)(d)(iii) provides that SEBs will terminate "when the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks."

An employee's decision to accept early retirement does not necessarily equate to retirement as contemplated by the workers' compensation statute governing entitlement to SEBs. The retirement referred to by La. R.S. 23:1221(3)(d)(iii) is not the failure to work because of disability. Instead, it refers to the worker who has no intention of returning to work regardless of disability. Marshall v. Town of Winnsboro , 50,255 (La. App. 2 Cir. 11/25/15), 184 So.3d 796. Where a worker has retired from a heavy work duty job but is still willing to take on light duty employment within the scope of the limitations imposed by his disabilities, then that worker is said not to have withdrawn from the workforce and is not considered to have retired under the statute. Peters v. General Motors Corp. , 39,279 (La. App. 2 Cir. 1/26/05), 892 So.2d 717.

Mr. McDonald testified that he intended to fully participate in the DROP program before retiring, but was unable to do so because of his lifting limitations. He applied to the jobs given to him by Ms. Bond, except the fast food jobs. Mr. McDonald stated that he does not hunt and fish as much as he did before the injury.

In finding Mr. McDonald was entitled to SEBs, the OWC judge stated Mr. McDonald's enrollment in the DROP program indicated he intended to continue working and Mr. McDonald demonstrated efforts to take on light duty employment. There were two permissible views of this evidence: either Mr. McDonald had indeed retired from the workforce or, alternatively, Mr. McDonald intended to return to the workforce, but had not secured employment. Therefore, the decision to choose the latter cannot be manifestly erroneous. The OWC court's decision regarding Mr. McDonald's entitlement to SEBs was reasonable and we find no manifest error.

CONCLUSION

For the above reasons, the judgment in favor of Richard McDonald is affirmed. Costs associated with this appeal in the amount of $158.42 are assessed to the appellant, City of Bastrop, in accordance with La. R.S. 13:5112(A).

AFFIRMED.


author: PENZATO, J.

text:
    Matthew A. DEPHILLIPS, individually, and on behalf of all others similarly situated v. HOSPITAL SERVICE DISTRICT NO. 1 OF TANGIPAHOA PARISH, doing business as North Oaks Medical Center/North Oaks Health System
    Earnest Williams, individually and on behalf of all others similarly situated v. Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Health System and North Oaks Medical Center, and Louisiana Health Service & Indemnity Company d/b/a Blue Cross Blue Shield of Louisiana
    2017 CA 1423, 2017 CA 1424
    Court of Appeal of Louisiana, First Circuit.
    JULY 18, 2018
    J. Lee Hoffoss, Jr., Claude P. Devall, Donald W. McKnight, Lake Charles, Louisiana, and Derrick G. Earles, David C. Laborde, Marksville, Louisiana, and Jeffery P. Berniard, Scott R. Bickford, Lawrence J. Centola, III, Norman F. Hodgins, III, New Orleans, Louisiana, Attorneys for Plaintiffs/Appellants, Matthew A. DePhillips and Earnest Williams, Individually, and on Behalf of All Similarly Situated
    Harry J. Philips, Jr., Amy C. Lambert, Caroline K. Darwin, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Hospital Service District No. 1 of Tangipahoa Parish, d/b/a North Oaks Medical Center/North Oaks Health System
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

This consolidated matter involves alleged violations of the Health Care Consumer Billing and Disclosure Protection Act (the "Billing Act"), La. R.S. 22:1871, et seq. Plaintiffs Matthew DePhillips and Earnest Williams attempt to appeal the trial court's judgments granting exceptions raising the objection of prescription filed by defendant Hospital District No. 1 of Tangipahoa Parish, doing business as North Oaks Medical Center/North Oaks Health System ("North Oaks"), finding that such claims are subject to a one year prescriptive period.

FACTS AND PROCEDURAL HISTORY

On April 28, 2015, DePhillips filed a putative class action against North Oaks. DePhillips alleged that he was treated at North Oaks as a result of a February 9, 2015 motor vehicle accident. He further alleged that at the time of the accident, he was insured by Blue Cross Blue Shield of Louisiana ("BCBS"). DePhillips, individually, and on behalf of all others similarly situated, sought damages arising from North Oaks' refusal to submit and/or accept payment from his insurer for such treatment, instead seeking to collect directly from DePhillips by maintaining an action at law for payment. DePhillips's petition asserted two causes of action: (1) a violation of the Billing Act; and (2) a breach of contract involving the Member Provider Agreement between North Oaks and BCBS.

On May 8, 2015, Williams filed a similar class action petition for damages, naming as defendants both North Oaks and BCBS. Williams alleged that he was involved in a motor vehicle accident on February 26, 2011, for which he received medical treatment from North Oaks. According to the petition, Williams was insured under an insurance policy administered by BCBS at the time of the accident. Williams alleged that North Oaks filed a claim with BCBS and was paid for Williams's charges, then attempted to collect amounts from him in violation of its Member Provider Agreement and the Billing Act by asserting a lien against his liability insurance claim for the full and undiscounted charges. Williams, individually, and on behalf of all others similarly situated, asserted that North Oaks' actions violated the Billing Act, that BCBS was solidarily liable with North Oaks, and that Williams relied to his detriment on the promises of BCBS that North Oaks would perform in accordance with the insurance contract.

On June 10, 2015, North Oaks filed a motion to consolidate the DePhillips and Williams matters. Prior to the hearing on the motion to consolidate, BCBS removed the Williams case to federal court. North Oaks then filed peremptory exceptions in the DePhillips matter raising the objections of no right of action for breach of contract, no cause of action for claims arising before the effective date of the Billing Act, and prescription. Following a hearing on October 13, 2015, the trial court granted the exception raising the objection of no cause of action for claims arising before the effective date of the Billing Act, but denied North Oaks' exceptions raising the objections of no right of action for breach of contract and prescription. A judgment was signed on November 2, 2015. North Oaks filed an application for supervisory writs seeking review of this ruling. On March 8, 2016, this court granted the writ in part, finding that DePhillips did not have a right of action to assert a claim for breach of the Member Provider Agreement, as he was neither a party to the Member Provider Agreement or a third-party beneficiary. Accordingly, the judgment denying the exception raising the objection of no right of action for breach of contract was reversed, and the exception was sustained. The writ was denied with respect to the peremptory exception raising the objection of prescription.

Thereafter, on March 31, 2016, North Oaks reasserted its peremptory exception raising the objection of prescription, contending that a one year prescriptive period applied to the claims of both DePhillips and Williams arising from the Billing Act. The matter came for hearing on October 11, 2016, at which time the trial court granted the exception, and indicated that it would issue written reasons. The written reasons for judgment signed October 24, 2016, stated that the court was "bound by the First Circuit's ruling" of March 8, 2016, and accordingly, "that the DePhillips claims are confined to billings occurring within one year from the filing of his suit, and that the Williams claims are barred in their entirety by prescription." Two separate judgments were signed on November 16, 2016. The "Judgment on Exception of Prescription" provided that:

IT IS ORDERED ADJUDGED AND DECREED that North Oaks' Exception of Prescription be and is hereby GRANTED as claims arising from the Health Care Consumer Billing and Disclosure Protection Act, La. R.S. 22:1871 et seq. , are subject to a one year prescriptive period, and accordingly, that any claims at issue are confined to acts or transactions that occurred within one year from the filing of suit by plaintiff, Matthew A. De[P]hillips.

Notice of judgment was mailed by the clerk on November 17, 2016. Another "Judgment on North Oaks' Exception of Prescription" stated:

IT IS ORDERED ADJUDGED AND DECREED that North Oaks' Exception of Prescription be and is hereby GRANTED as claims arising from the Health Care Consumer Billing and Disclosure Protection Act, La. R.S. 22:1871 et seq. , are subject to a one year prescriptive period, and accordingly, that Earnest Williams' claims against North Oaks be and are hereby DISMISSED with prejudice.

Notice of judgment was mailed by the clerk on November 22, 2016.

On December 2, 2016, plaintiffs DePhillips and Williams filed a motion for new trial from the judgment of November 16, 2016, that limited all claims to acts or transactions that occurred within one year from the filing of the DePhillips lawsuit. The motion stated that the clerk of court mailed notice of the signing of said judgment on November 17, 2016. The motion for new trial came for hearing on January 9, 2017, and was denied. A judgment in accordance therewith was signed on January 19, 2017. Thereafter, plaintiffs DePhillips and Williams filed a motion for appeal from the judgment rendered on January 9, 2017, and signed on January 19, 2017.

RULES TO SHOW CAUSE

On October 16, 2017, this court, ex proprio motu , issued rule to show cause orders in each of the consolidated appeals concerning several issues that may render the matter non-appealable. First, this court indicated that it was unclear which of the two judgments signed on November 16, 2016, is the subject of this appeal. The rule to show cause orders further noted that to the extent the "Judgment on Exception of Prescription" is the subject of the appeal, the motion appeared to be untimely filed; appeared to be a partial judgment that did not dispose of all of the claims and issues in the case, yet lacked the designation of finality required by La. C.C.P. art. 1915(B) ; and lacked appropriate decretal language. The parties were directed to show cause as to whether the appeal should or should not be dismissed for these reasons. Plaintiffs DePhillips and Williams responded, arguing that in appeal number 2017-1423, the judgment subject to the appeal is the DePhillips judgment captioned "Judgment on Exception of Prescription," and that in appeal number 2017-1424, the judgment subject to the appeal is the Williams judgment captioned "Judgment on North Oaks' Exception of Prescription." Plaintiffs DePhillips and Williams agree that the DePhillips judgment is an interlocutory order which does not contain decretal language and cannot be certified as final. Plaintiffs suggest that appeal number 2017-1423 be dismissed, and that appeal number 2017-1424 be permitted to proceed with both Williams and DePhillips as appellants. On March 5, 2018, the rules to show cause were referred to this panel assigned to hear the consolidated appeals.

JURISDICTION

The appellate jurisdiction of this court extends to final judgments. See La. C.C.P. art. 2083. A final judgment is one that determines the merits of a controversy, in whole or in part. In contrast, an interlocutory judgment does not determine the merits, but only preliminary matters in the course of an action. La. C.C.P. art. 1841. This court cannot determine the merits of an appeal unless our appellate jurisdiction is properly invoked by a valid final judgment. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La. App. 1 Cir. 11/9/11), 79 So.3d 1054, 1061, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698.

A party wishing to appeal an adverse judgment must obtain an order of appeal. There can be no appeal absent an order of appeal because the order is jurisdictional; this lack of jurisdiction can be noticed by the court on its own motion at any time. Noyel v. City of St. Gabriel, 2015-1890 (La. App. 1 Cir. 9/1/16), 202 So.3d 1139, 1142, writ denied, 2016-1745 (La. 11/29/16), 213 So.3d 392. See also La. C.C.P. art. 2088.

Though a proceeding has been consolidated with another, an appeal by a party in one proceeding does not serve as such to the benefit of another party in the joined action. A judgment cannot be set aside or changed on appeal except as to those who are parties to the appeal. As a consequence, parties who fail to appeal cannot be heard, on appeal by others, to complain of errors below, and can demand no relief. Darouse v. Mamon, 201 So.2d 362, 364 (La. App. 1 Cir. 1967).

A judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See La. C.C.R art. 2083(C). However, when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. Byrd v. Pulmonary Care Specialists, Inc., 2016-0485 (La. App. 1 Cir. 12/22/16), 209 So.3d 192, 195.

Here, the motion for appeal clearly states that plaintiffs DePhillips and Williams are appealing the judgment rendered on January 9, 2017, and signed on January 19, 2017, which is the denial of the motion for new trial. However, the circumstances indicate that they sought to appeal from the judgment granting the exception of prescription filed by North Oaks. We must therefore determine which judgment was the subject of the motion for new trial to which the order of appeal applies.

The motion for new trial filed on December 2, 2016 referenced the judgment of November 16, 2016 that limited all claims to acts or transactions that occurred within one year from the filing of the DePhillips lawsuit. It further indicated that the clerk mailed notice of the signing of the judgment at issue on November 17, 2016. While there were two judgments signed on November 16, 2016, notice of judgment was mailed by the clerk on November 17, 2016 only as to the judgment captioned "Judgment on Exception of Prescription" (DePhillips judgment). Notice of judgment regarding the judgment captioned "Judgment on North Oaks' Exception of Prescription" (Williams judgment) was mailed by the clerk on November 22, 2016. Thus, the motion for new trial sought reconsideration of the DePhillips judgment only. We find that the record contains no order of appeal showing that plaintiffs DePhillips and Williams appealed the Williams judgment. Thus, we do not have jurisdiction over the Williams judgment in appellate docket number 2017-1424.

With regard to the DePhillips judgment in appellate docket number 2017-1423, we note that plaintiffs DePhillips and Williams concede that it is an interlocutory order which does not contain decretal language and cannot be certified as final. DePhillips filed suit within one year of his treatment at North Oaks, and therefore the ruling on the exception of prescription has no effect on his claim. Thus, we do not have jurisdiction over the DePhillips judgment.

CONCLUSION

For the foregoing reasons, we dismiss these consolidated appeals. Costs of these appeals are assessed against plaintiffs-appellants Matthew DePhillips and Earnest Williams.

APPEALS DISMISSED.

Holdridge J. concurs

      The Williams case was remanded to the Twenty-First Judicial District Court, Parish of Tangipahoa, State of Louisiana, by order dated September 29, 2015. On November 2, 2015, the case was transferred in accordance with La. C.C.P. art. 253.2 for purposes of adjudicating the previously filed motion to consolidate. A joint motion to remand for the limited purpose of allowing the trial court to sign an order consolidating the DePhillips and Williams cases was granted by this court on November 7, 2017, and an order to consolidate the cases effective November 16, 2015, was signed on November 15, 2017.

      BCBS filed an exception raising the objection of prescription in the Williams matter, which was heard at the same time as North Oaks' exceptions. BCBS's exception was granted, and is the subject of a related consolidated appeal decided this same date. See Matthew A. DePhillips Individually, And On Behalf Of All Others Similarly Situated v. Hospital Service District No. 1 of Tangipahoa Parish, Doing Business As North Oaks Medical Center/North Oaks Health System, 2017-1425 c/w 2017-1426 (La. App. 1 Cir. __/__/18), --- So. 3d ----.

      While the judgment bore a consolidated caption, this judgment appears to be related to the DePhillips lawsuit.

      While the judgment bore a consolidated caption, this judgment appears to be related to the Williams lawsuit.

      We decline to convert the appeal of this non-final judgment to a supervisory writ as a reversal of the trial court's judgment would not terminate the DePhillips litigation in whole or in part. See Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) (per curiam ).


author: HOLDRIDGE, J.

text:
    Don ORTEGA v. The RECREATION AND PARKS COMMISSION FOR the PARISH OF EAST BATON ROUGE and Superintendent Carolyn McKnight
    2017 CA 1502
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: JULY 18, 2018
    Yigal Bander, Baton Rouge, LA, Attorney for Plaintiff/Appellant, Don Ortega
    Sunny Mayhall West, Murphy J. Foster, III, Jacob E. Roussel, Baton Rouge, LA, Attorneys for Defendants/Appellees, The Recreation and Parks Commission for the Parish of East Baton Rouge and Superintendent Carolyn McKnight
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

Plaintiff/appellant, Don Ortega appeals a trial court judgment denying his petition for injunction and writ of mandamus against defendants/appellees, The Recreation and Parks Commission for the Parish of East Baton Rouge (BREC) and Superintendent Carolyn McKnight, chief executive officer of BREC, for restricting him from attending BREC meetings held on its properties due to his threatening and disruptive conduct following his termination of employment. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Ortega was terminated from his employment with BREC on December 31, 2015, due to his improper behavior with employees and insubordination towards his supervisors. As a result of his termination, Ortega made threatening remarks to BREC supervisors and employees on BREC's premises. Ortega struck a BREC employee with his uniform shirt and told another BREC employee that he was "going to have fun with [them]. [They didn't] even know." Following his termination, BREC had to contact the Baton Rouge Police Department twice due to Ortega's hostile and threatening behavior on its premises.

On January 14, 2016, BREC sent Ortega a letter instructing him that because of his threatening behavior after his termination, he was banned from entering all BREC properties and facilities indefinitely. Ortega appealed his termination to the BREC Peer Review Committee and the BREC Human Resources Complaint Resolution Committee. Both committees upheld his termination.

On March 31, 2016, McKnight sent Ortega a letter notifying him that "in accordance with BREC's letter [dated] ... January 14, 2016 ... [his] ban from entering all BREC properties and facilitates indefinitely [was] ... reinstated and effective immediately. The letter further stated that "[a]ny violation of [the] ban [would] result in [BREC's] immediate contact of the police and [Ortega would] be subject to arrest for trespassing[.]"

On July 5, 2016, Ortega filed a "Petition for Injunction And For Writ of Mandamus" naming BREC and McKnight as defendants. In his petition, Ortega requested that the trial court issue a preliminary injunction ordering BREC to remove its restriction prohibiting him from attending and participating in public meetings held on BREC's properties and asked that after due proceedings, the injunction be made permanent. Ortega further requested that a writ of mandamus be issued that directed McKnight to allow him to attend and express his views at BREC's public meetings. In response, the defendants filed an opposition to Ortega's petition, listing in detail his history of disruptive incidents.

The opposition stated that in November 2013, Ortega was arrested and charged with unauthorized entry into a business and criminal trespass after violently entering the business to make a complaint. On September 30, 2014, the Baton Rouge Police Department was contacted regarding Ortega's suspicious behavior when he was observed to be allegedly taking pictures of children walking around a church synagogue property. When Ortega was questioned about his behavior by the reporter of the incident he became irritated.

Additionally, the defendants attached exhibits detailing the reasons for Ortega's discharge from BREC, which stated that he exhibited improper behavior with fellow employees as well as creating a hostile and unsafe work environment. An employee of BREC submitted an incident report about Ortega, stating "in my 25 years as a BREC employee I have never seen a person who was so cold and ruthless toward fellow employees as Don Ortega was. His attitude ... toward his fellow employees ma[de] it impossible to work in this or any other organization."

On July 5, 2017, the parties submitted a joint stipulation of facts and exhibits. The stipulation of facts revealed that Ortega had been arrested in Colorado for damaging public property and had a history of carrying firearms into public meetings in Colorado. The stipulation of facts further revealed that on September 20, 2016, Ortega underwent a psychological evaluation administered by an independent medical examiner, Dr. Brandon P. Romano, a clinical psychologist. The results of the psychological evaluation were as follows:

Mr. Ortega's truthfulness scale score [was] in the problem risk range and all scale scores [were] truth-corrected for accuracy.
His profile suggest[ed] a propensity for physical, emotional, and verbal aggression. He appear[ed] to harbor a great deal of poorly repressed resentment, anger, and violence. When upset, his emotions easily interfere[d] with his [judgment]. His remaining scales fell within the low risk range.
* * * *
He tend[ed] to be emotionally excitable and intensely zealous. He [was] as prone to present with a high degree of animation as he [was] to evince hot-headedness. Unrestrained and rash, he [was] often restless and indefatigable. His tirelessness d[id] not necessarily result in effective achievements, however, and may turn to turbulence; he may become socially obdurate, inappropriate, and potentially caustic and assaultive.
* * * *
Although Mr. Ortega d[id] not verbalize a history of attitudes supporting violence or aggression, he ha[d] a history of verbal interactions and physical altercations that c[ould] be viewed as intimidating, threatening, harassing, and otherwise concerning. He appear[ed] to have taken on the role of "policing" society although the same rules and laws that govern others d[id] not seem to apply to him. Although he ha[d] not verbally identified or targeted a particular person, group, or organization for violence or aggression, his objective data suggest[ed] a propensity for emotional and behavioral outbursts; this, combined with self-righteousness, poor insight and judgment, and other psychosocial risk factors, could certainly lead to a fatal outcome for others, or alternatively, Mr. Ortega in the event an altercation escalate[d] and he bec[ame] a victim.

The stipulation of facts included Ortega's deposition taken on October 25, 2016. In his deposition, Ortega stated that he had been arrested approximately fifteen times. Ortega further stated that he had disciplinary issues during his military service, as well as when he resided in Colorado where he was arrested for trespassing in a hospital while carrying a firearm.

On August 11, 2017, Ortega's claims came before the trial court. The parties agreed to submit the matter on briefs, together with the joint stipulation of facts and exhibits for the trial court to rule on the merits of Ortega's claims. The trial court gave an oral ruling, denying Ortega's claims without prejudice. The trial court signed a judgment on August 21, 2017, dismissing the petition of Ortega. From that judgment, Ortega appeals assigning as error that the trial court erred in allowing BREC to restrict him from attending and participating in its public meetings, violating the United States and Louisiana Constitutions and the Open Meetings Law.

DISCUSSION

Ortega argues that the First Amendment of the United States Constitution and Article I, Section 7 of the Louisiana Constitution provides him with the fundamental right to attend and express his views at BREC's public meetings. The First Amendment of the United States Constitution and Article 1, Section 7 of the Louisiana Constitution protect freedom of speech and expression. State v. Hernandez, 503 So.2d 1181, 1185 (La. App. 3rd Cir. 1987). The First Amendment provides, in relevant part, that "Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble." U.S. Const. amend. I. Article I, Section 7, of the Louisiana Constitution also protects the right of free speech, stating, "[n]o law shall curtail or restrain the freedom of speech or of the press."

In assessing whether an individual's rights have been violated under the First Amendment, it must first be determined which type of public forum the regulation in question seeks to direct, as the forum classification determines the appropriate standard to be applied. See Fairchild v. Liberty Independent School Dist., 597 F.3d 747, 757 (5th Cir. 2010). There are three recognized types of forums: (1) traditional and designated public forums; (2) limited public forums; and (3) nonpublic forums. In traditional and designated public forums, reasonable time, place, and manner restrictions are allowed; however, any content-based restriction must be narrowly tailored to serve a compelling government interest. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S.Ct. 1125, 1127, 172 L.Ed.2d 853 (2009). In limited public and nonpublic forums, a government entity may impose restrictions on speech that are reasonable and viewpoint neutral. Id at 470, 129 S.Ct. 1125.

Because BREC's properties are government properties in accordance with La. R.S. 33:4570, et seq. , the meeting at issue constitutes a limited public forum.

See Chiu v. Plano Independent School Dist., 260 F.3d 330, 346 (5th Cir. 2001) (per curiam) (limited public forums "describe forums opened for public expression of particular kinds or by particular groups"); see also Mesa v. Hudson County Bd. of Chosen Freeholders, CIV. A. 2009-3576 KSH, 2011 WL 4592390, *5 (D.N.J. 2011) (a governmental entity creates a limited public forum when it provides for a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects). Common examples of limited public forums include city council meetings, state university meeting facilities opened for student groups, and open school board meetings. See American Freedom Defense Initiative v. Metro. Transp. Authority, 880 F.Supp.2d 456, 470, n.6 (S.D.N.Y. 2012) ; Wenthold v. City of Farmers Branch, Texas, 3:11-CV-0748-B, 2012 WL 467325, *8 (N.D. Tex. 2012).

Restrictions on speech in a limited public forum are subject to less stringent scrutiny than the other forums. See Good News Club v. Milford Central School, 533 U.S. 98, 106, 121 S.Ct. 2093, 2100, 150 L.Ed.2d 151 (2001). A State is not required to and does not allow persons to engage in every type of speech in a limited public forum, and it may be justified in reserving the forum for certain groups or for the discussion of certain topics. Id. The government can restrict or regulate speech in a limited public forum if the regulation (1) does not discriminate against speech on the basis of viewpoint and (2) is reasonable in light of the purpose served by the forum. Heaney, 846 F.3d at 801-02 ; Victory Through Jesus Sports Ministry Foundation v. Lee's Summit R-7 School Dist., 640 F.3d 329, 334 (8th Cir. 2011), cert. denied, 565 U.S. 1036, 132 S.Ct. 592, 181 L.Ed.2d 424 (2011).

Viewpoint discrimination occurs when the specific motivating ideology, opinion, or perspective of the speaker form the content of the restriction. See Reed v. Town of Gilbert, Ariz., --- U.S. ----, 135 S.Ct. 2218, 2230, 192 L.Ed.2d 236 (2015). BREC's restriction on Ortega is not based upon his viewpoints and Ortega has not argued otherwise. In regard to reasonableness, the restriction on access must be reasonable in light of the purpose which the forum at issue serves. Victory Through Jesus Sports Ministry Foundation, 640 F.3d at 335. There is no requirement that a restriction in a limited public forum be narrowly tailored or the government's interest be compelling for a restriction to be reasonable. So long as the government can reasonably justify its regulation on speech in the limited public forum in light of the purposes of the forum, the regulation passes constitutional muster. Flint v. Dennison, 488 F.3d 816, 835 (9th Cir. 2007), cert. denied, 552 U.S. 1097, 128 S.Ct. 882, 169 L.Ed.2d 726 (2008). Thus, restrictions on speech that will foreseeably disrupt the intended function of government property have generally been held reasonable in limited public forums.

Seattle Mideast Awareness Campaign v. King County, 781 F.3d 489, 500 (9th Cir. 2015)

The trial court determined that BREC's restriction imposed on Ortega was reasonable and view-point neutral in light of the facts of this case. Specifically, the trial court stated in its oral reasons:

... The stipulated facts entered show that Mr. Ortega ha[d] a very long history of what th[e] Court deems to be both erratic and threatening behavior. The police were contacted at least twice by BREC and once, if not twice, by Baton Rouge Water Company based on the actions of Mr. Ortega. And in his interview with Dr. Romano, he indicated he [was] ... arrested, over the course of his adult life, approximately 15 times. There were also some discipline issues regarding his military service and occasions when he resided in Colorado where he brought firearms to public events. Based on the facts stipulated to, the Court ha[d] some real concern regarding Mr. Ortega as well as the safety and welfare of BREC employees and members of the general public who [were] also at the BREC facilities.... Dr. Romano expressed some real concerns regarding the truthfulness of Mr. Ortega in his responses as well as the fact that his profile suggest[ed] a propensity for physical, emotional, and verbal aggression. He appear[ed] to harbor a great deal of poorly repressed resentment, anger, and violence.... The report of Dr. Romano causes[d] th[e] Court grave concern regarding the potential violent tendencies Mr. Ortega ha[d] displayed and potentially could display if allowed back on BREC properties. No question in the Court's mind pursuant to Revised Statute Title 33 Section [4570.3], BREC ha[d] the power and authority as well as a compelling legitimate interest and right to take action to ensure peacefulness at [its] facilities, to protect the safety and welfare of not only the employees but of members of the general public to use the BREC facilitates.... In summary, it [was] the Court's opinion that BREC's actions, based on the facts of this case, are reasonable and substantive relations to the health safety and general welfare of the public and [its] employees, and they [were] clearly within the valid exercise of the power and authority statutorily invested.... The Court ... note[d] that the dismissal [was] ... without prejudice. And the Court's decision in that regard [was] based upon the premise in Dr. Romano's report that, should [Mr. Ortega] seek and obtain counseling and address these issues, he would not be precluded from petitioning the Court at a future date to have BREC either lift or modify the restriction.

The trial court determined from Dr. Romano's assessment of Ortega and his history of disruptive behavior that BREC's restriction placed on him was reasonable and view-point neutral in regard to the facts of this case. The government may impose content-based restrictions on speech as a means of insuring peace and avoiding controversy that would disrupt the business of the forum. Seattle Mideast Awareness Campaign, 781 F.3d at 502. Considering Ortega's disruptive background and violent history, we find that the trial court correctly upheld BREC's restriction to prevent a potentially dangerous situation that would be harmful to BREC's employees and/or the public. Therefore, we find that BREC's restriction does not violate Ortega's First Amendment Rights. We note that the trial court's judgment does not restrict Ortega permanently from attending BREC's meetings. The trial court narrowly-tailored its judgment to be without prejudice. Thus, Ortega is not precluded from petitioning to the court at a future date to have BREC lift or modify its restriction if he takes the appropriate steps to address the issues stated herein. This assignment of error has no merit.

In his second assignment of error, Ortega argues that BREC's restriction is in violation of the Open Meetings Law, La. R.S. 42:11 et seq. Ortega argues that he has a fundamental right to attend BREC meetings under the Open Meetings Law and that BREC only has the right to eject him from a meeting if he willfully disrupts the meeting.

Article XII, Section 3 of the Louisiana Constitution states that "[n]o person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law." The primary purpose of this constitutional provision insuring the right of citizens to observe the deliberations of public bodies is to protect citizens from secret decisions made without any opportunity for public input. Joseph v. Hospital Service Dist. No. 2 of Parish of St. Mary, 2001-1951 (La. App. 1st Cir. 12/28/01), 805 So.2d 400, 409, writ denied, 2002-0322 (La. 4/19/02), 813 So.2d 1083. To fulfill the purposes of Article XII, Section 3 of the Louisiana Constitution, the legislature enacted the Open Meetings Law, La. R.S. 42.12 et seq. , which requires that every meeting of any public body shall be open to the public unless closed pursuant to La. R.S. 42:16, allowing executive sessions. Id.

While the Louisiana Supreme Court in Title Research Corporation v. Rausch, 450 So.2d 933, 936 (La. 1984), characterized the right under Article XII, Section 3 of the Louisiana Constitution as a fundamental right, it acknowledged that the right was subordinate when a law, specifically and unequivocally, provides otherwise. This prioritization simply does not comport with that associated with a fundamental and inalienable constitutional right. St. Mary Anesthesia Associates, Inc. v. Hospital Service Dist. No. 2 of Parish of St. Mary, 2001-2852 (La. App. 1st Cir. 12/20/02), 836 So.2d 379, 386-87, writ denied, 2003-0220 (La. 3/28/03), 840 So.2d 577. The avowed purpose of Article XII, Section 3 of the Louisiana Constitution was to establish a general constitutional right of public access to deliberations of public bodies and to public records. Id. at 383. This general right was expressly qualified. The legislature is clearly empowered to fashion exceptions in cases established by law that are in the public interest. See Id. at 387.

Louisiana Revised Statutes 33:4570.3(A) provides that BREC "is invested with full power to adopt and promulgate rules and regulations within the scope of this Section to apply to its own governmental functions, and to control and regulate the public recreational and park facilities under its jurisdiction." This power, otherwise known as a police power, is the power of a governmental body to regulate reasonably the actions of its individual citizens in order to protect or promote the public health, safety, morals, peace or general welfare. City of Shreveport v. Curry, 357 So.2d 1078, 1081 (La. 1978). The test of whether an ordinance or regulation is a constitutionally valid exercise of police power depends on whether, under all circumstances, the regulation is reasonable and whether it is designed to accomplish a purpose properly falling within the scope of the police power.

Boudreaux v. Larpenter, 2011-0410 (La. App. 1st Cir. 6/1/12), 110 So.3d 159, 168.

In evaluating BREC's restriction on Ortega, the trial court stated in its reasons for judgment that the restriction did not violate the Open Meetings Law because BREC "ha[d] a right and an interest to protect its employees and the general public[.]" We agree with the trial court that due to Ortega's disruptive history of threatening behavior with BREC's employees and supervisors, as well as the results from Dr. Romano's psychological evaluation and Ortega's criminal history, that BREC had a reasonable basis to believe that his presence at any of its facilities could be potentially harmful to the general public. Thus, BREC's restriction on Ortega was a valid exercise of its police power mandated by Louisiana Revised Statutes 33:4570.3, et seq. and was not unreasonable considering the circumstances of this case. The restriction is further reasonable in light of the trial court's judgment which tailored its judgment to be without prejudice to allow Ortega to petition BREC or the court at any further date to have the restriction lifted or modified in accordance within the circumstances. Therefore, we find that BREC's restriction on Ortega does not violate Louisiana's Open Meetings Law or Section 3, Article XII of the Louisiana Constitution. This assignment of error has no merit.

CONCLUSION

For the above reasons, we affirm the trial court's August 21, 2017 judgment. All costs of this appeal are assessed to Don Ortega.

AFFIRMED .

Higginbotham, J. concurs

      BREC is a political subdivision of the State of Louisiana authorized and empowered by La. R.S. 33:4570, et seq. to own and administer parks and recreational properties within the Parish of East Baton Rouge.

      It is improper to cumulate a petition for writ of mandamus with a petition for permanent injunctive relief since a petition for a writ of mandamus is a summary proceeding and a petition for permanent injunctive relief is an ordinary proceeding. See La. C.C.P. arts. 462, 2592(6). However, since defendants failed to file a dilatory exception raising the objection of improper cumulation, the objection is waived. See La. C.C.P. art. 926(A)(7) & (B).

      Ortega does not appeal the denial of the writ of mandamus. A writ of mandamus will only be issued when a public official has no discretion in performing a ministerial duty required by law. See La. C.C.P. art. 3863. In this case, it is clear that McKnight had the discretion to prohibit a person from attending a public meeting who may be harmful to others.

      Louisiana's constitutional protection of free speech mirrors that of the First Amendment of the United States Constitution, so separate determinations of the state and federal claims are unnecessary. Heaney v. Roberts, 846 F.3d 795, 801, n.2 (5th Cir. 2017). Therefore, unless otherwise stated, references to Ortega's First Amendment claim refer to both the state and federal claims. See Id.

      See also Seattle Mideast Awareness Campaign v. King County, 781 F.3d 489, 497 (9th Cir. 2015) which states that "if the property is used primarily as part of a government-run commercial enterprise, and the expressive activities the government permits are only incidental to that use, that fact tends to support finding a limited public forum."

      Although not assigned as an error in his brief, Ortega argues that the trial court failed to use the strict scrutiny standard in determining that his right to attend BREC's public meetings was his fundamental right. However, jurisprudence provides that limited public forums such as BREC are not held to the strict scrutiny standard, but instead the restriction must only be content-neutral and reasonable. See Brown v. City of Jacksonville. Fla., 3:06-CV-122-J-20MMH, 2006 WL 385085, at *3 (M.D. Fla. 2006) (providing that a content-neutral ordinance or restriction is one that does not restrict either a particular viewpoint or any subject matter that may be discussed.)

      We further note that the trial court's judgment does not appear to be a permanent injunction. Since this issue was not raised by either party, we decline to address whether this was a preliminary injunction and whether the appeal was timely filed in accordance with La. C.C.P. art. 3612.