author: PENZATO, J.

text:
    STATE of Louisiana v. Vernell DAY
    2017 KA 1455
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 21, 2018
    Hillar C. Moore III, District Attorney, Monisa L. Thompson, Assistant District Attorney, Baton Rouge, Louisiana, Attorneys for Appellee, State of Louisiana
    Cynthia K. Meyer, New Orleans, Louisiana, Attorney for Defendant/Appellant, Vernell Day
    Vernell Day, Angola, Louisiana, Defendant/Appellant, Pro Se
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

The defendant, Vernell Day, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, following a jury trial, was found guilty as charged. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating three counseled assignments of error and one pro se assignment of error. We affirm the conviction and sentence.

FACTS

In August of 2014, the defendant was living at North 28th Street in Baton Rouge with his eight-year-old daughter, D.B., and his five-year-old son, J.B. As the children's biological father, the defendant was given custody of D.B. by the Department of Children & Family Services (DCFS) when she was about five years old. A few months prior to August of 2014, DCFS placed J.B. in the care and custody of the defendant.

On the evening of August 18, 2014, the defendant and his children were at home. According to D.B., who testified at trial, she and the defendant were in the defendant's bedroom watching television. J.B. was in the adjacent bedroom on his knees, having been punished by the defendant. At some point, the defendant brought J.B. into his bedroom and placed him on his knees in there. According to D.B., while the defendant was standing directly in front of J.B., J.B. "looked funny at him or something or in a rude way." Angered at J.B. apparently having shown some sign of disrespect toward him, the defendant grabbed J.B. by the ankle and, without letting go, swung J.B. around the bedroom. J.B.'s head struck the wall and the door several times. According to D.B., J.B.'s head also struck the floor about two times.

J.B. became unresponsive from the injuries he sustained. The defendant carried J.B. to the couch and tried to resuscitate him. With J.B. showing no signs of consciousness, the defendant called 911. The defendant told D.B. to tell anyone who asked that J.B. had been jumping on the bed in the defendant's bedroom and had fallen off and hit his head. J.B. was taken by ambulance to Our Lady of the Lake Regional Medical Center (OLOL). After a preliminary examination in the emergency room, J.B. was moved to the pediatric intensive care unit (PICU).

Corporal Andrew DeSalvo, with the Baton Rouge Police Department, went to the hospital and took pictures of J.B. The photographs revealed that J.B. was malnourished and had bruises and marks on much of his body, including on his head, legs, back, buttock, and ear.

Dr. Jeffrey Gruner, a trauma surgeon at OLOL, testified at trial that J.B. was the "sickest of the sick." Dr. Gruner noted that J.B. was very thin and very small for a five-year-old. Dr. Gruner documented the various injuries to J.B., including bruises on the right buttock, left ear, left hip, left forehead, and a pronounced hematoma on the right side of the forehead. Dr. Gruner thought J.B.'s injuries were from nonaccidental trauma. Dr. Gruner testified that the pattern of bruising to J.B.'s head suggested multiple blows to his head. Dr. Gruner consulted with a neurosurgeon about a possible surgery. However, they decided against surgery because J.B.'s Glasgow Coma Scale score was so poor and because with the extent of the diffuse injury within the brain, there would have been no benefit from surgery.

Dr. Brian Binck, a pediatric intensivist, was the attending physician who cared for J.B. in the PICU. In his death summary report, Dr. Binck noted that J.B. had been intubated when he was first brought in because he had made no effort to breathe on his own. During a neurological exam, Dr. Binck discovered that J.B.'s pupils did not constrict to light, which according to Dr. Binck, was extraordinarily abnormal. There was no evidence of brainstem activity. Dr. Binck noted that J.B. was very emaciated and had multiple fresh bruises on various parts of his body, including his chest, forehead, thighs, and sacral area. A CT scan of J.B.'s head revealed subdural bleeding. The radiologist was highly suspicious that the injuries were caused by nonaccidental trauma, and Dr. Binck concurred. Dr. Binck testified that, with falls, you do not see severe head trauma and multiple bruises all over the body.

After twenty-four hours of nonresponsiveness by J.B., including no attempt to breathe on his own, J.B. was eligible for a brain-death examination, which was performed by Dr. Binck's partner. Dr. Binck repeated the exam twelve hours later.

Having determined that J.B. was brain dead, Dr. Binck declared J.B. deceased.

Dr. Yen Van Vo, a forensic pathologist, performed the autopsy on J.B. Dr. Vo noted several injuries on J.B.'s body, including a hematoma within a contusion on the right side of the head; various bruising and abrasions on the chest; bruising on the left side of the neck; bruising on the left shoulder and left arm; and bruises on the knees, left thigh, right foot, and on the left and right side of the back and buttocks. Dr. Vo was very suspicious that J.B. was malnourished. Dr. Vo determined that J.B.'s cause of death was multiple blunt force injuries. Dr. Vo testified that J.B. had bruises over much of his body.

Dr. Vo found two separate discrete areas of hemorrhage and hematoma near the frontal bone of J.B.'s head and subgaleal hemorrhage all over his skull. Near the occipital bone (back of the head), Dr. Vo found three discrete areas of bleeding, which according to the doctor, meant these injuries were caused by three different events. Dr. Vo also found acute (recent) subdural hemorrhage in J.B.'s brain. Dr. Vo testified that there had been injury to every portion of J.B.'s brain.

The defendant testified at trial. The defendant indicated J.B. had not been injured from falling off his bed. The defendant explained he had told D.B. to tell people that J.B. had been jumping on his bed because the defendant was afraid, and he did not want to lose his children to DCFS. According to the defendant, J.B.'s injuries were accidental. At the time of the incident, J.B. was in the defendant's bedroom, but he was not punished or on his knees, as D.B. had testified. J.B., rather, was sitting in a small chair. The defendant, in a playful manner, picked up the chair, with J.B. still in it, and swung the chair around. J.B., according to the defendant, slipped off the chair and hit the bed and then the floor. Unhurt and happy, J.B. got up and ran toward the defendant. The defendant then grabbed J.B. by his arms, picked him up, and began swinging J.B. around. J.B. slipped from the defendant's grip. J.B. hit the wall and the door and fell to the floor.

COUNSELED ASSIGNMENT OF ERROR NO. 1

In his first counseled assignment of error, the defendant argues that the trial court erred in denying his request to have his own expert evaluate D.B. The defendant further argues that the trial court erred in allowing a social worker to be present with D.B. during her testimony, which violated his right to confrontation.

Prior to trial, the State filed a motion for protected person's testimony to be taken outside the courtroom. The State contended in the motion that D.B. qualified as a "protected person" under the provisions of La. R.S. 15:283 because she was a witness to a crime who was under the age of seventeen years; that she would likely suffer serious emotional distress if forced to give testimony in open court; and without simultaneous televised testimony, could not reasonably communicate her testimony to the jury.

Louisiana Revised Statutes 15:283 provides as follows:

A. On its own motion or on the motion of the attorney for any party, a court may order that the testimony of a protected person who may have been a witness to or victim of a crime be taken in a room other than the courtroom and be simultaneously televised by closed circuit television to the court and jury, when the court makes a specific finding of necessity based upon both of the following:
(1) Expert testimony that the protected person would be likely to suffer serious emotional distress if forced to give testimony in open court.
(2) Expert testimony that, without such simultaneous televised testimony, the protected person cannot reasonably communicate his testimony to the court or jury.
B. The court shall ensure that the protected person cannot see or hear the accused unless such viewing or hearing is requested for purposes of identification. However, the court shall ensure that the accused is afforded the ability to consult with his attorney during the testimony of the protected person.
C. The only persons who may be present in the room with the protected person are the person or persons operating the audio-video equipment, the presiding judge, the attorneys for the state, the attorneys for the defendant, and any person, other than a relative of the protected person, whose presence is determined by the court to be necessary to the welfare and well-being of the protected person during his testimony. The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the protected person during his testimony but does not permit the protected person to see or hear them.
D. Only the attorneys, or the presiding judge as authorized by law, may question the protected person.
E. For the purposes of this Section, "protected person" means a person who is the victim of a crime or a witness in a criminal prosecution who is either of the following:
(1) Under the age of seventeen years.
(2) Has a developmental disability as defined in R.S. 28:451.2(12).

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. This right provides two types of protections for a criminal defendant: the right to physically face those who testify against him and the right to conduct cross-examination. Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988). However, public policy considerations and necessities may take precedence over "face-to-face" confrontation. Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 3165, 111 L.Ed.2d 666 (1990).

In Maryland v. Craig, the Supreme Court addressed the issue of whether the Confrontation Clause of the Sixth Amendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside of the defendant's physical presence, by one-way closed circuit television. The State sought to invoke a Maryland statutory procedure, similar to La. R.S. 15:283, permitting a judge to receive, by one-way closed circuit television, the testimony of a child who is alleged to be a victim of child abuse. To invoke the procedure, the trial judge must first "determin[e] that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate." Md. Cts. & Jud. Proc. Code Ann. § 9-102(a)(1)(ii) (1989). Craig , 497 U.S. at 840-41, 110 S.Ct. at 3160-61.

The Craig Court, 497 U.S. at 855, 110 S.Ct. at 3169, held:

[I]f the State makes an adequate showing of necessity, the [S]tate interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.

The requisite finding of necessity must be a case-specific one. Craig , 497 U.S. at 855, 110 S.Ct. at 3169. Under Craig, the trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the testifying child witness; the trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. Craig, 497 U.S. at 855-56, 110 S.Ct. at 3169. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than "mere nervousness or excitement or some reluctance to testify." Craig, 497 U.S. at 856, 110 S.Ct. at 3169. See State v. Stogner, 2009-0172 (La. App. 1st Cir. 6/19/09), 2009 WL 1717173 (unpublished), cert. denied, 562 U.S. 854, 131 S.Ct. 117, 178 L.Ed.2d 72 (2010) ; State v. Hicks, 2008-0511 (La. App. 1st Cir. 9/19/08), 2008 WL 4287559 (unpublished), writ denied, 2008-1986 (La. 5/15/09), 8 So.3d 578. See also State v. Carper , 45,178 (La. App. 2nd Cir. 6/9/10), 41 So.3d 605, 608-10, writ denied, 2010-1507 (La. 9/3/10), 44 So.3d 708.

At a pretrial hearing on the State's motion on June 15, 2016, the State called Noel Andrus, a licensed clinical social worker, and Toni Bankston, a licensed clinical social worker and the executive director of the Baton Rouge Children's Advocacy Center (CAC). Ms. Andrus testified she had a master's degree in social work, and she was employed with the Baton Rouge CAC. Ms. Andrus indicated she specialized in treating trauma in children. She was accepted by the trial court as an expert in clinical social work with a specialty of treatment of child trauma. According to Ms. Andrus, she began working with D.B. on October 29, 2014. D.B. was initially seen by Ms. Bankston, but was then transferred to Ms. Andrus for treatment because she (D.B.) had witnessed her father, the defendant, kill her younger brother. D.B. had fifty-three individual therapy sessions with Ms. Andrus and eight sessions of group therapy. At the time of the hearing, D.B. was seeing Ms. Andrus once a month, and the last time Ms. Andrus saw her was on May 31, 2016.

According to Ms. Andrus, when D.B, first began therapy, she was "very guarded, extremely avoidant," and "very angry." D.B. would not talk about her brother and would only briefly mention her father. D.B.'s feelings toward the defendant were that he was bad and scary, and she did not like him. When the topic of her brother or father was raised in therapy, she would become anxious and fearful, and she would refuse to talk. About one year into treatment, D.B. began to talk about the incident she had witnessed. When describing what she had witnessed, she would become angry and agitated.

When asked about testifying at trial, D.B. indicated she was willing to testify, but not in front of the defendant. Ms. Andrus indicated that, if made to testify in front of the defendant, D.B. would not speak; she would shut down. According to Ms. Andrus, D.B.'s feelings of fear and anxiety would prevent her from testifying in front of the defendant. Ms. Andrus indicated that D.B.'s level of anxiety was "maybe greater than what you see in most children." Ms. Andrus added that if D.B. had to testify in front of the defendant, it would be "a ginormous trigger for her and it would set her back." By "trigger," Ms. Andrus meant that it would trigger "the emotional responses caused by the trauma that she witnessed." Ms. Andrus further indicated D.B. has also had very strong physiological reactions at the mention of her brother or the defendant, such as developing hives, stomach pains, and headaches. Shortly thereafter, the following exchange between the trial court and Ms. Andrus took place:

The Court: In your opinion, would this child be traumatized by being forced or attempt to force the child to testify in a courtroom in the presence of this defendant?
A. Absolutely. I feel she would be retraumatized.
The Court: In what way?
A. By coming in, resurfacing all those emotional responses that she's had in the past. The progress this child has made is just amazing and where she's at now compared to where she was a little over a year and a half ago.
The Court: Is it your opinion that it would cause serious or severe emotional distress to this child by doing that?
A. Absolutely.
The Court: In what way, again?
A. In to regressing back to anger, the physiological responses, acting out in school, behavioral outbursts in school and at home.
The Court: Would this trauma be because simply because she's in a courtroom or because she's in the presence of the defendant, her father?
A. I believe that she's in a courtroom with her father, correct.
The Court: With her father?
A. Correct, providing testimony. I think the act in itself of providing the testimony would not, but in front of her father, yes.
The Court: So the presence of the defendant would, is what you feel, would be the factor that would cause severe emotional distress to this child?
A. That is correct.

Ms. Bankston, qualified by the trial court as an expert in clinical social work and child trauma, provided similar testimony. According to Ms. Bankston, if made to testify in front of the defendant, the probability would be very high that D.B. would not only suffer great emotional distress, but she would be "retraumatized" by it. Ms. Bankston further indicated that she did not believe it would be in D.B.'s best interest to testify in front of the defendant; Ms. Bankston added that she thought making D.B. testify in front of the defendant would risk "medically a regression in her behavior." Ms. Bankston agreed with Ms. Andrus that forcing D.B. to testify in the presence of her father would cause serious emotional distress.

Prior to ruling on the State's motion to allow D.B. to testify outside of the presence of the defendant, the trial court took up the defendant's motion to have an independent examination of D.B. by an expert of either the trial court's or the defendant's choosing. No witnesses were called; the defendant's motion consisted of argument only. The trial court denied the defendant's motion. Following argument on the State's motion, the trial court found that based on the experts' testimony, it was strongly likely that D.B. would "shut down and not testify because of the fear and/or fear of emotional distress that would be caused by forcing the child to testify in the presence of the defendant." Accordingly, the trial court granted the State's motion to allow D.B. to testify outside of the presence of the defendant.

The defendant in brief argues the trial court erred in denying the defendant's motion to appoint another expert to evaluate D.B. The defendant notes the trial court did not speak to or observe D.B. The trial court's ruling, according to the defendant, prevented him from being able to adequately rebut the State's claims that it would cause emotional distress for D.B. to testify in his presence. The only testimony, the defendant suggests, "was presented on behalf of the State by CAC workers, who admittedly collaborate with law enforcement in criminal prosecutions."

After a careful review of the record, we see no reason to disturb the trial court's denial of the defendant's motion to appoint his own expert. We note initially that the emotional distress that forced testimony in the defendant's presence would cause D.B., was not a claim made by the State, as suggested in the defendant's brief. These were claims made by the experts who treated D.B. and worked with her in therapy. While the trial court did not personally question D.B., it is clear that there is nothing the trial court could have learned from speaking with D.B. for a few minutes that Ms. Andrus and Ms. Bankston had not already laid out in detail, based on information acquired over a year, including fifty-three individual therapy sessions and eight sessions of group therapy.

At the pretrial hearing, the trial court specifically addressed the need vel non of another expert witness, as well as the impartiality of the experts who testified. Following is the relevant exchange between Ms. Andrus and the trial court regarding these issues:

The Court: Do you consider yourself in any way an arm or agent of the prosecution or the law enforcement?
A. No. We're a neutral agency at the CAC. We're in the best interest of the children is what the CAC serves.
The Court: Would your treatment and/or therapy, as you call it in this case, be the same as if you had been hired by the defense to treat this child?
A. Absolutely.
The Court: Exactly the same?
A. We would work with the child in regards to the trauma in which she experienced just like we are now. And no way to obtain answers or responses or, when children come into therapy we let them know you're in charge, it's your case.
The Court: If I ordered [D.B.] ... to be examined by a social worker or a psychologist or psychiatrist or mental health worker picked by me or chosen by the defense for one or two sessions, what affect [sic] and what level of cooperation would you expect from [D.B.] and/or any affect [sic] on her?
A. I would guess initially it would be just like she was with me or anyone else with her school-based social worker or myself being guarded, being resistant, not wanting to go through yet another assessment in which she's been through so many times.

Later at the hearing, the following relevant exchange took place among the trial court, a prosecutor, and Bankston:

Ms. Jarreau [prosecutor]: Knowing [D.B.'s] history and how she's progressed, if she were to be evaluated or ordered to be evaluated by a different clinical psychologist or social worker, how do you think she would respond to that?
A. I think it would be very distressful and, by the way, one of the foundations of the child advocacy movement in this country has been to limit the amount of times a child is interviewed about a crime. So it goes against what we know is helpful and can be harmful for children to push for multiple interviews. That's the whole reason we exist is to have one interview and not multiple interviews and to continue to assess a child about a crime.
* * * * *
The Court: What would you expect her level of cooperation to be if this Court ordered one or two assessments by an independent, another independent person?
A. My assessment is that it would be limited. I think her cooperation is limited, but I think it would be better than it would have been two years ago.
The Court: Would it be beneficial or ... non-beneficial to the child?
A. To have another evaluation? I think it's-speaking very candidly-I think it's unnecessary.
The Court: That's not my question whether it's necessary.
A. I really don't see a benefit. I really-I do not see a benefit of having her evaluated. I think there's enough information in her clinical history and with the experts who have worked with her so far that you can feel solid about the assessment that those experts are making.
* * * * *
The Court: The only-use the expression-dog in this fight that you have is the interest of this child?
A. Absolutely.
The Court: Not loyalty to the district attorney or to the defendant?
A. Absolutely not.

The foregoing testimony supports the trial court's decision to allow D.B. to testify outside of the presence of the defendant (by closed circuit television) without another examination by an expert submitted by the defendant (or the trial court). Both Ms. Andrus and Ms. Bankston indicated that their evaluation and treatment of D.B. was for the benefit of D.B., and that their findings and/or testimony would not have changed, regardless of who hired them to provide testimony. The law overwhelmingly supports allowing child victims to avoid the imposition of unnecessary independent examinations and the extra trauma associated with testifying in the presence of their alleged abusers. See State v. Day, 2014-708 (La. App. 3rd Cir. 12/23/14), 158 So.3d 120, 131-34.

Further, the defendant has not demonstrated any prejudice to his defense in the trial court's denial of his motion to order an independent examination of D.B. All of the elements of confrontation were preserved during D.B.'s testimony, except the ability of D.B. to see the defendant while she testified. As such, there can be no prejudice in the procedure employed, regardless of whether the defendant was denied his request for an independent examination of D.B. See Day, 158 So.3d at 134 ; State v. Collins, 2010-0757 (La. App. 4th Cir. 5/11/11), 65 So.3d 271, 279-82, writs denied, 2011-1185 (La. 11/23/11), 76 So.3d 1153, 2011-1719 (La. 1/20/12), 78 So.3d 140 ; State v. Daniels, 484 So.2d 941, 943-45 (La. App. 1st Cir. 1986). Cf. State v. Welch, 99-1283 (La. 4/11/00), 760 So.2d 317, 321 (reversing a conviction for molestation of a juvenile following a bench trial where defendant sat behind a screen so alleged nine-year-old victim could testify without having to see him, the Louisiana Supreme Court found that neither the State nor the trial court attempted to comply with La. R.S. 15:283(A), wherein the trial court, with no expert testimony taken, ordered the "screening" of the defendant "merely on a generalized statement of possible trauma for child witnesses."); cf. Hicks , 2008 WL 4287559 (finding no case-specific evidence to prove the necessity of protecting child witness from the trauma of testifying in the presence of defendant, where given that social worker's testimony only addressed the prospect of child testifying in any courtroom setting, and CAC interviewer met with child only once, neither expert could provide direct testimony regarding any trauma they felt child would experience by testifying in the presence of defendant).

The defendant also asserts in this assignment of error that the trial court erred in allowing Ms. Andrus to be present with D.B. while D.B. testified from another courtroom, via closed circuit television. According to the defendant, he was prejudiced because the trial court based its ruling (to allow Ms. Andrus to be with D.B. during her testimony) "solely on the testimony of the CAC worker."

Louisiana Revised Statutes 15:283(C) specifically provides that persons who may be present in the room with the protected person (during her testimony) include "any person, other than a relative of the protected person, whose presence is determined by the court to be necessary to the welfare and well-being of the protected person during his testimony." At trial, prior to D.B. testifying, and outside of the presence of the jury, the trial court took up the State's motion in limine to have a person whose presence is necessary to the welfare of D.B. present during her testimony.

When asked how D.B. might respond if she were forced to testify without a "familiar face" or "support person" in the courtroom with her, Ms. Andrus testified the possibilities were endless, some of which included D.B. shutting down, being very anxious, or having physiological reactions from her anxiety. There could even be "possible regression (of her progress in treatment)," Ms. Andrus continued, from D.B. "not having that emotional support." The prosecutor then asked Ms. Andrus if she believed that a support person's presence was necessary to protect D.B.'s well-being. Ms. Andrus replied, "Absolutely." Ms. Andrus reiterated the necessity of a support person (herself) being present with D.B., particularly in light of the fact that D.B. was already anxious about testifying and was told just that morning that she would have to testify alone.

The following relevant exchange then took place between the trial court and Ms. Andrus:

Q. And is it necessary for the child's well-being and welfare?
A. Yes.
Q. If you weren't there and she did shut down, do your fear that there would be a regression in her treatment?
A. Possibly.
* * * * *
Q. So do you think it's necessary and important for her welfare that someone, like you that she's comfortable with, be in that courtroom while she testifies?
A. Absolutely.

In granting the State's motion in limine, the trial court stated in pertinent part:

The Court, based on the testimony of the child's clinical social worker, who has a specialty in the treatment of child trauma, M[s]. Andrus, the Court, based on her testimony here today, which is the only testimony provided to the Court here today, is that it is necessary for the welfare and well-being of the child for her to be allowed to be in the room while the child is testifying, and the Court will so allow.

Based on the testimony of Ms. Andrus, the trial court, in accordance with La. R.S. 15:283(C), determined that the presence of someone with whom D.B. was comfortable while she testified was necessary for D.B.'s welfare and well-being. We find no abuse of discretion in the trial court's ruling. There was no indication that Ms. Andrus's presence prejudiced the defendant. Further, nothing in the record suggests that Ms. Andrus interacted with or communicated in any way with D.B. during her testimony. See Daniels, 484 So.2d at 944-45.

For the foregoing reasons, we find the trial court did not err in denying the defendant's motion to compel an independent examination of D.B.; and the trial court did not err in granting the State's motion in limine to allow Ms. Andrus to be present with D.B. while she testified at trial. See Day, 158 So.3d at 131-134.

Accordingly, this counseled assignment of error is without merit.

COUNSELED ASSIGNMENT OF ERROR NO. 2

In his second counseled assignment of error, the defendant argues the trial court erred in not questioning a juror as to his relationship with the prosecutor's case agent.

The defendant's argument is baseless. Following selection of the jury and just prior to opening statements, one of the prosecutors informed the trial court at a sidebar conference that Detective Bryan Ballard, the State's case agent, had informed him (the prosecutor) that he "vaguely" knew one of the members of the jury, Jeremy Naquin. Detective Ballard said that his wife and Mr. Naquin's wife knew each other or used to work together. Detective Ballard and Mr. Naquin were not friends, but they had seen each other before. The trial court informed the parties that they would proceed to opening statements and, that following this, if anyone had a request regarding this issue, it would address it then.

Following opening statements, outside of the presence of the jury, the issue was again taken up. The trial court informed defense counsel that if the defense requested it, it would question the juror about how or if he knew Detective Ballard. Defense counsel, Dele A. Adebamiji, informed the trial court he had spoken to his client (the defendant), and he did not want the juror to be questioned by the trial court. The trial court again told Mr. Adebamiji, "But if you request me at any time, I will call that juror in alone and ask him about it, okay?" Finally, the trial court asked, "So right now you do not want me to ask-bring the juror in alone and question the juror about that?" Mr. Adebamiji replied, "That's correct, Judge."

Any relationship or familiarity between Detective Ballard and Mr. Naquin appeared tenuous, at best. More importantly, however, there was no objection made, regarding this issue. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. Code Crim. P. art. 841(A). The purpose of the contemporaneous objection rule is to allow the trial judge the opportunity to rule on the objection and thereby prevent or cure an error. The rule also prevents a defendant from "sitting on" an error and gambling unsuccessfully on the verdict, then later resorting to an appeal on an error that might have been corrected at trial. State v. Smith, 2006-0820 (La. App. 1st Cir. 12/28/06), 952 So.2d 1, 17, writ denied, 2007-0211 (La. 9/28/07), 964 So.2d 352.

Herein, the defendant not only did not object, he specifically informed the trial court not to question Mr. Naquin. The defendant failed to lodge a contemporaneous objection and, as such, he is precluded from raising this issue for the first time on appeal.

This counseled assignment of error is without merit.

COUNSELED ASSIGNMENT OF ERROR NO. 3; PRO SE ASSIGNMENT OF ERROR

In his third counseled assignment of error, the defendant argues he was denied effective assistance of counsel because defense counsel failed to request that the trial court poll the jury on its guilty verdict. According to the defendant, when the time comes that non-unanimous jury verdicts in felony prosecutions are found to be unconstitutional, he may be precluded from arguing his conviction should be vacated because his guilty verdict may have been non-unanimous.

In his sole pro se assignment of error, the defendant argues that the third counseled assignment of error (failure by defense counsel to request polling) has no merit. The defendant asserts that "one day" Louisiana's non-unanimous jury verdict system will be reversed and that, as such, defense counsel's failure to request polling would prevent the defendant from arguing on post-conviction relief that his conviction should be vacated because it was unclear whether "the guilty verdict rendered in this case was unconstitutional." See La. Code Crim. P. art. 930.4. Accordingly, the defendant asks that the third counseled assignment of error be withdrawn from this appeal.

A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller , 99-0192 (La. 9/6/00), 776 So.2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001).

We find that there is no ripe issue here to consider. The issue raised by the defendant herein would become justiciable or actionable only if the legislature changed the law to require unanimous verdicts and made the new law retroactive.

This counseled assignment of error, and the pro se assignment of error, are without merit or otherwise not subject to appellate review.

CONVICTION AND SENTENCE AFFIRMED.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    SOUTHERN PIPE & SUPPLY COMPANY, INC. v. Hector LOPEZ and Lopez Mechanical, Inc.
    NUMBER 2017 CA 1547
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 21, 2018
    Francis R. White, III, Covington, LA, Counsel for Plaintiff/Appellee, Southern Pipe & Supply Co., Inc.
    Jacob E. Roussel, Steven B. Loeb, Baton Rouge, LA, Counsel for Defendants/Appellants, Hector Lopez and Lopez Mechanical, Inc.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

Defendants, Hector Lopez and Lopez Mechanical, Inc., appeal from a judgment of the trial court denying their motion to set aside and/or annul the default judgment rendered against them. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 30, 2015, Southern Pipe and Supply Company, Inc. ("Southern Pipe") filed a petition, naming Hector Lopez and Lopez Mechanical, Inc. (collectively "Lopez") as defendants, alleging that Southern Pipe had sold Lopez plumbing supplies and related materials, equipment, and movables for which payment had not been made and made demand for payment and attorney's fees. Counsel requested service of the petition, by personal service only, on Hector Lopez, individually and as agent for service of process for Lopez Mechanical, Inc.

Thereafter, on October 12, 2016, Southern Pipe, through its attorney Francis R. White, III, filed a motion to enter preliminary default, asserting that personal service had been made on Hector Lopez and Lopez Mechanical, Inc. on December 10, 2015, and that neither party had filed an answer or responsive pleading. According to the court minutes, the trial court ordered the entry of a preliminary default on October 14, 2016. On October 18, 2016, Southern Pipe filed a Rule 9.19 Certificate, seeking to confirm the default judgment in this matter. Also on this date, Francis White filed a motion to substitute counsel of record, seeking to substitute himself for Fritz B. Ziegler, who had filed the petition on behalf of Southern Pipe. The trial court subsequently signed a judgment on November 29, 2016, finding Southern Pipe had made full proof of its claims and rendering judgment in favor Southern Pipe and against Lopez in the amount of $8,285.06, plus attorney's fees of $2,000. The trial court also signed an order on the same date, ordering that Francis White be substituted as counsel of record for Southern Pipe.

On April 3, 2017, Lopez filed a motion to set aside and/or annul the default judgment asserting the judgment is absolutely null because: (1) at the time the preliminary default was filed and entered in the instant matter, Francis White was not the attorney of record for Southern Pipe, and therefore, the preliminary default signed by him is invalid and could not form the basis for the subsequent confirmation of default judgment and (2) Hector Lopez was never served with the petition, either in his individual capacity or on behalf of Lopez Mechanical, Inc.

The trial court held a hearing on Lopez's motion on May 11, 2017. At the hearing, Southern Pipe entered into evidence the sheriff's returns dated December 10, 2015, indicating personal service on Hector Lopez, individually and as agent for service of process for Lopez Mechanical, Inc. Southern Pipe also presented the testimony of Stephen Griffin, who was employed by the Jefferson Parish Sheriff s Office and served process on Hector Lopez on December 10, 2015. Hector Lopez also testified at the hearing. After reviewing the evidence and listening to the testimony of the witnesses, the trial court found that Lopez had failed to overcome the presumptive correctness of the sheriff's returns. The trial court thereafter signed an order denying Lopez's motion to set aside and/or annul the default judgment.

Lopez now appeals from the trial court's judgment.

DISCUSSION

Absent an express waiver, citation and service thereof are essential in all civil actions. La. C.C.P. art. 1201. A judgment rendered against a defendant who has not been served with process as required by law is an absolute nullity. See La. C.C.P. arts. 1201 and 2002(A)(2). Tunnard v. Simply Southern Homes, LLC, 07-0945, p. 3 (La. App. 1st Cir. 3/26/08), 985 So.2d 166, 168.

Pursuant to La. C.C.P. art. 1261(A), service of citation or other process on a domestic corporation is made by personal service on any one of its agents for service of process. Service of process directed to a corporate defendant and made on one other than the person authorized to accept service is illegal and without effect. State v. Kee Food, Inc., 17-0127, p. 8 (La. App. 1st Cir. 9/21/17), 232 So.3d 29, 34, writ denied, 17-1780 (La. 12/5/17), 231 So.3d 632. Personal service is made when a proper officer tenders citation and other process to the person to be served. La. C.C.P. art. 1232.

Service shall be made by the sheriff of the parish where service is to be made or of the parish where the action is pending. La. C.C.P. art. 1291. A sheriff's return reflecting service is considered prima facie correct. La. C.C.P. art. 1292. However, while the recitation on the return of citation is presumed to be correct, the presumption is rebuttable. The party attacking it bears the burden of proving its incorrectness by a preponderance of the evidence. Roper v. Dailey, 393 So.2d 85, 88 (La. 1980) (on rehearing); Hall v. Folger Coffee Company, 03-1734, pp. 6-7 (La. 4/14/04), 874 So.2d 90, 97. In general, the uncorroborated testimony of the party attacking service, standing alone, is insufficient to rebut the presumption of prima facie correctness accorded the return. State ex rel. Department of Social Services, Office of Family Support, Support Enforcement Services v. Langlois, 03-0849, p. 3 (La. App. 1st Cir. 3/3/04), 874 So.2d 216, 217-218.

A determination of whether a party challenging the validity of a sheriff s return of service has presented sufficient evidence to rebut the presumption of correctness is a factual question subject to the manifest error standard of review. See Hall, 03-1734 at pp. 9-10, 874 So.2d at 98. Under the manifest error standard, a court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844(La. 1989). Moreover, where factual findings are based on determinations regarding the credibility of witnesses, the trier of fact's findings demand great deference and are virtually never manifestly erroneous or clearly wrong. Pope v. Roberts, 13-1407, p. 6 (La. App. 1 Cir. 4/16/14), 144 So.3d 1059, 1064. Even though an appellate court may feel that its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, 549 So.2d at 844 ; Tunnard, 07-0945 at p. 4, 985 So.2d at 169.

In the instant case, the sheriff's return indicates that personal service was made on Hector Lopez individually and as agent for service of process for Lopez Mechanical, Inc. on December 10, 2015, at the business address of Lopez Mechanical, Inc. As such, the sheriff's return is prima facie correct. To rebut the presumption of correctness, Hector Lopez testified at the hearing on the motion to set aside and/or annul that he was never served with the petition, either in his individual capacity or on behalf of Lopez Mechanical, Inc. Furthermore, in an attempt to support his argument that the sheriff's return is incorrect and service was not accomplished on him, Hector Lopez stated that his father, also named Hector Lopez, was the only person at the business address of Lopez Mechanical, Inc. However, Hector Lopez did not offer the testimony of his father to corroborate that the father was the only one at the shop on that date or that he received service of process.

Stephen Griffin, who was employed by the Jefferson Parish Sheriff's Office and who served process on Hector Lopez on December 10, 2015, also testified at trial. Griffin stated that he had been a process server for the Jefferson Parish Sheriff's Office for twenty years and stated that he served Hector Lopez at the business address of Lopez Mechanical, Inc. On cross-examination by counsel for Lopez, questioning whether Griffin in fact served the correct Hector Lopez, Officer Griffin stated: "I asked for Hector Lopez. And he said, I'm Hector Lopez. And I gave it to him." Furthermore, while Griffin could not identify Hector Lopez at the hearing as the individual that he served, he stated that he had served over 6,000 papers since 2015, and essentially could not remember.

From our review of the record, we cannot find that the trial court was manifestly erroneous in finding that Lopez failed to rebut the presumption of correctness accorded the sheriff's return of service and that proper service had been made on Lopez. Lopez offered only the testimony of Hector Lopez that he did not receive service of process and presented no corroborating testimony that service was made on someone other than him. See Tunnard, 07-0945, at pp. 3 and 5-6, 985 So.2d at 169-170 ; see also Hatfield v. Cloud, 13-1408, pp. 2-3 (La. App. 3rd Cir. 5/7/14), 2014 WL 1802903 (unpublished opinion), writ denied, 14-1193 (La. 9/19/14), 149 So.3d 248.

Furthermore, we find no merit in Lopez's argument that the default judgment should be set aside because the preliminary default was obtained by an attorney who was not enrolled as counsel of record in the lawsuit. As noted above, Francis White filed the motion for preliminary default on October 12, 2016, and six days thereafter, filed a motion to substitute counsel of record, seeking to substitute himself for Fritz B. Ziegler, who had filed the petition on behalf of Southern Pipe. However, the trial court did not sign the order approving the substitution of counsel until November 29, 2016, the same date it signed the default judgment in favor of Southern Pipe.

Louisiana District Court Rule 9.12 provides that "attorneys in good standing may enroll as counsel of record" and provides for the procedure by which an attorney can formally enroll in a case, but it does not provide for any penalty for failure to do so. See Tasch, Inc. v. Horizon Group, 08-0635, p. 4 (La. App. 4th Cir. 1/7/09), 3 So.3d 562, 565. Furthermore, La. C.C.P. art. 863, relied on by Lopez, requires that "[e]very pleading of a party represented by an attorney... be signed by at least one attorney of record..." The effect of failure to sign a pleading is that the pleading "shall be stricken unless promptly signed after the omission is called to the attention of the pleader." La. C.C.P. art. 863(C). However, as implied by the language of La. C.C.P. art. 863(C), this technical defect is curable. See Martin v. Decker, 07-1838, pp. 8-9 (La. App. 1st Cir. 3/26/08), 985 So.2d 752, 757-758, writ denied, 08-1405 (La. 10/3/08), 992 So.2d 1014. In the instant case, counsel filed a motion to substitute counsel of record within a few days of filing the motion to enter a preliminary default and before he filed the certificate seeking to confirm the preliminary default. Furthermore, the order approving the substitution of counsel was signed the same date as the default judgment. As such, this technical defect was cured, and Lopez has failed to present any other legal authority that the default judgment is absolutely null.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to Hector Lopez and Lopez Mechanical, Inc.

AFFIRMED.


text:
    Carnell COLLIER v. SEWERAGE & WATER BOARD
    NO. 2018-CA-0097
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 1, 2018
    Dale E. Williams, LAW OFFICE OF DALE EDWARD WILLIAMS, 212 Park Place, Covington, LA 70433, COUNSEL FOR PLAINTIFF/APPELLANT
    James E. Thompson, III, Jade Brown-Russell, SEWERAGE AND WATER BOARD OF NEW ORLEANS, 625 St. Joseph Street, Suite 201, New Orleans, LA 70165, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins )
    Judge Dale N. Atkins Carnell Collier ("Appellant") appeals the October 27, 2017 judgment of the Civil Service Commission ("CSC") denying his appeal of his termination from his permanent, classified employment at the Sewerage and Water Board of New Orleans. While we agree with the CSC's finding that legal cause existed for taking disciplinary against Appellant, because we find that the punishment imposed - termination - was not commensurate with the offense, we reverse.
    FACTUAL AND PROCEDURAL BACKGROUND
    Appellant was a classified, permanent employee who worked as a Quality Assurance and Safety Inspector ("QASI") in the Networks Division of the Sewerage and Water Board of New Orleans ("S & WB") at all times relevant to this matter. A QASI is a senior-level position in the Networks Division, and Appellant supervised approximately fifty employees at the time of the alleged misconduct.
    The record reflects that on September 6, 2015, Appellant engaged in gambling in a building referred to as the "Labor Shack" on S & WB property. At the time of the incident, approximately sixty current and former S & WB employees were gathered in the Labor Shack to celebrate the retirement of a co-worker. The events of September 6, 2015 came to light when an anonymous letter and pictures were sent to Appellant's Supervisor, Engineering Division Manager Steve Bass ("Bass"). Based upon his review of the letter and pictures, Bass believed that Appellant was gambling on S & WB property, at a party attended by S & WB employees, several of whom Appellant supervised. According to his testimony, on October 24, 2015, Appellant was called into Bass's office to address a separate disciplinary incident, involving Appellant's unauthorized use of a S & WB vehicle to haul personal trash, as well as the gambling incident. Subsequently, he received a 48-day suspension for the unauthorized vehicle use infraction.
    On February 4, 2016, the S & WB conducted a pre-termination hearing related solely to the gambling infraction presided over by Bass.
    A notice of the hearing had been issued to Appellant via certified mail, although he apparently did not receive it. He did receive a call from Bass on February 3, 2016, during which Bass notified Appellant that the pre-termination hearing was scheduled for the following day. The purpose of the pre-termination hearing was to provide Appellant an opportunity to respond to the allegation he had been gambling with other S & WB employees, on S & WB property, during a party attended by numerous S & WB employees. Appellant acknowledged that, prior to the pre-termination hearing, he was notified of the allegations against him as well as the contemplated level of discipline.
    At the hearing, Appellant initially denied gambling at the retirement party. However, when presented with photographs of himself gambling at the event, Appellant acknowledged his actions. Bass offered Appellant an opportunity to respond to the allegations or provide any documents or evidence relevant to the allegations, and Appellant requested time to provide a written statement, which was granted. Appellant submitted a statement later that day, in which he acknowledged that he participated in an illegal act, but asked Bass and S & WB Executive Director Cedric Grant ("Grant") to take into account his twenty-one years of dedicated service when deciding on Appellant's discipline.
    Following the hearing, the S & WB terminated Appellant's employment effective Wednesday, February 24, 2016, in accordance with Civil Service Rule IX, Section 1, for committing acts to the prejudice of the S & WB. In the termination letter, the S & WB noted that Appellant had admitted to engaging in gambling activities on S & WB property while attending the retirement party of a fellow S & WB employee, and that at the time of the misconduct, Appellant was a supervisor and the senior ranking employee; as such, his conduct set a standard for other employees.
    On March 9, 2016, Appellant filed an appeal of his dismissal with the City Civil Service. On September 1, 2016, at Appellant's request, his appeal was continued while settlement was explored. Apparently unsuccessful in this regard, on June 28, 2017, an appeal hearing was held before a referee appointed by the CSC.
    At the CSC hearing, Appellant again admitted to gambling with other S & WB employees at the September 6, 2015 retirement party. Appellant stated that S & WB employees frequently engaged in gambling while on S & WB property and he did not view the dice game as unusual or a violation of S & WB policy. Appellant also stated that he noticed a S & WB employee at the retirement party taking pictures. This employee allegedly referred to his photos as a "get out of jail free card." On cross-examination, Appellant acknowledged that the employee taking pictures was one of his subordinates.
    Appellant stated that he had received positive performance evaluations during the course of his career at the S & WB. He further claimed that he did not have an adequate opportunity to present his version of events during the course of the pre-termination hearing and that the S & WB had prohibited him from contacting any fellow S & WB employees. Appellant contended that if given the chance, he would have introduced documents and information supporting his position. However, Appellant did not specify what documents he would have introduced if given the opportunity to do so. Furthermore, Appellant admitted that he probably would not have called any witnesses at the pre-termination hearing to support his case.
    In his testimony, Bass acknowledged that with the exception of two serious instances of misconduct, Appellant was a reliable employee who performed his responsibilities in a competent manner. Bass also acknowledged that Appellant had never received discipline for gambling in the past and that no other employees were disciplined for gambling at the retirement party held on S & WB property. However, Bass testified that Appellant's actions impaired the efficient operations of the S & WB because gambling on S & WB property was an inappropriate activity for any S & WB employee. As well, he stated that Appellant's status as a supervisor exacerbated the degree of misconduct. In addition, Grant testified that Appellant's admitted behavior negatively affected the efficient operations of the S & WB because as a supervisor, he was supposed to set an example for other employees, and illegal acts on public property could not be tolerated.
    On October 17, 2017, the CSC rendered its judgment denying the appeal. The instant appeal to this Court followed. While not designating any formal assignments of error, on appeal, Appellant argues that he was terminated without sufficient cause, because the S & WB failed to prove that Appellant's actions impaired the efficient operation of the agency. Appellant also argues that because no one had previously been terminated for gambling, and there was no specific rule addressing gambling by S & WB supervisors on S & WB property, his termination was arbitrary. Finally, he argues that termination was incommensurate with the level of his infraction.
    APPLICABLE LAW
    An appointing authority may discipline an employee with permanent status in the classified service for sufficient cause expressed in writing. LA. CONST. ART. X, § 8 (A). If an employee believes that an appointing authority issued discipline without sufficient cause, the employee may appeal to the CSC. Id. In an appeal before the CSC brought pursuant to Article X, § 8(A) of the Louisiana Constitution, the appointing authority has the burden of proving, by a preponderance of the evidence: 1) the occurrence of the complained of activity; and 2) that the conduct complained of impaired the efficiency of the public service in which the appointing authority is engaged. Fulton v. Dep't of Police , 2017-0523, p. 4 (La. App. 4 Cir. 12/6/17), 234 So.3d 107, 110, writ denied , 2018-0016 (La. 2/23/18), 237 So.3d 515 (quotations omitted). If the CSC determines that the appointing authority has met its initial burden and had sufficient cause to issue discipline, it must then determine if that discipline "was commensurate with the infraction." Abbott v. New Orleans Police Dep't , 2014-0993, p. 7 (La. App. 4 Cir. 2/11/15), 165 So.3d 191, 197 (citing Walters v. Dep't of Police of City of New Orleans , 454 So.2d 106, 113 (La. 1984) ).
    The decision of the CSC "is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review." Cure v. Dep't of Police , 2007-0166, p. 2 (La. App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094 (citing LA. CONST. ART. X, § 12 ). "In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the CSC order unless it was arbitrary, capricious, or characterized by an abuse of discretion." Id. , p. 2, 964 So.2d at 1094-95. A decision of the CSC is "arbitrary and capricious" if there is no rational basis for the action taken by the CSC. Id. , 964 So.2d at 1095.
    DISCUSSION
    1. It is undisputed that Appellant engaged in the alleged misconduct.
    In the present case, the CSC determined that Appellant engaged in gambling while attending a retirement party located on S & WB property. The CSC also found that gambling on City-owned property is serious misconduct regardless of whether it is specifically prohibited by the Louisiana Revised Statutes. The CSC further found that Appellant occupied a senior-level supervisory role within the Networks Division of the S & WB and was responsible for administering training to S & WB employees regarding proper safety procedures. Accordingly, the CSC concluded that the S & WB met its burden of establishing that Appellant engaged in the misconduct alleged in the disciplinary notice.
    Our review of the record, including the hearing testimony and exhibits, supports this finding. Given Appellant's admissions, there is no dispute that Appellant engaged in the misconduct alleged by the S & WB. Furthermore, there is no dispute that at the time of the misconduct, Appellant was employed as a QASI, a high-level position within the S & WB in which he supervised numerous S & WB employees and was responsible for training numerous others. As well, Appellant admitted that employees subordinate to him attended the party.
    2. The misconduct had a negative effect on S & WB operations.
    With respect to the question whether the misconduct had a negative impact on the S & WB's efficient operations, the CSC accepted the testimony of Bass and Grant that Appellant's participation in gambling on S & WB property served as a tacit endorsement of the conduct. It found that the S & WB has an obligation to promote ethical and appropriate conduct by its employees, especially on S & WB property, whether or not the employees were technically on duty. In so finding, the CSC emphasized that at the time of the misconduct, Appellant was wearing his S & WB uniform, on S & WB property, and known by his subordinates as both a supervisor and a trainer. The CSC concluded that when supervisors engage in misconduct and model inappropriate behavior for subordinate employees, the efficient operations of the S & WB are necessarily compromised. Noting Grant's testimony that supervisors within the S & WB set standards of behavior, professionalism, and conduct for other employees, the CSC stated that it found that testimony both compelling and intuitive for any large organization. Thus, the CSC concluded that Appellant's misconduct did have an adverse impact on the efficient operations of the S & WB.
    Our review of the record also supports this conclusion. Accordingly, we find that the CSC did not abuse its discretion in finding that Appellant's conduct had a negative effect on S & WB operations.
    3. The discipline imposed was incommensurate with the offense.
    Finally, we review the question whether the discipline imposed, termination, was commensurate with Appellant's infraction. Upon consideration of all of the circumstances in this case, we find that while the record provides a rational basis for the S & WB to take disciplinary action against Appellant, it does not provide a rational basis for the CSC's holding that termination was an appropriate disciplinary action commensurate with Appellant's offense. When a decision of the CSC lacks a rational basis, it is considered "arbitrary and capricious." Cure , 2007-0166, p. 2, 964 So.2d at 1095.
    Termination from permanent employment is the most extreme form of disciplinary action that can be taken against a classified or city employee. Honoré v. Dep't of Pub. Works , 2014-0986, p. 16 (La. App. 4 Cir. 10/29/15), 178 So.3d 1120, 1131 (citing Hills v. New Orleans City Council, 1998-1101, pp. 6-7 (La. App. 4 Cir. 12/9/98), 725 So.2d 55, 58 ) ). "Cause that may justify some other lesser form of disciplinary action may not necessarily justify a dismissal." Id. In determining whether a punishment is commensurate with the infraction, the CSC considers the nature of the offense, as well as the employee's work record and previous disciplinary record. Hills , 1998-1101, p. 7, 725 So.2d at 58.
    In the case at bar, the following testimony was undisputed: that Appellant was off-duty at the time of the infraction; that it was not unusual for S & WB employees to play dice games on S & WB property; that Appellant was a reliable twenty-one-year employee who performed his duties competently; that Appellant had never received discipline for gambling in the past; and that none of the other employees were disciplined for gambling at the retirement party at issue. The most compelling evidence in favor of termination was Appellant's prior discipline for unauthorized use of a S & WB vehicle to dispose of personal construction debris. However, we find the impact of this fact is offset by the fact that the infraction in question occurred while the Appellant was off duty, and that the two infractions together appear to be the only disciplinary action in an otherwise unblemished twenty-one-year employment history.
    Consequently, we find on the record before us that there is no rational basis to conclude that Appellant's infraction is deserving of the most extreme level of discipline possible. Accordingly, we find that the CSC erred when it affirmed the termination and remand for the determination of a lesser disciplinary action.
    REVERSED AND REMANDED

      Appellant appealed this decision to the CSC in docket number 8492; the CSC upheld the discipline on January 18, 2017. The CSC Decision and Order was admitted as an exhibit in the instant case.

      Following the conclusion of the hearing on Appellant's CSC appeal, the S & WB introduced the pre-termination notice and proof of transmission via certified mail. The CSC's referee accepted the document as proof that the S & WB attempted to notify Appellant of the pre-termination meeting in writing prior to the hearing itself. However, as noted by the CSC in its judgment, for unknown reasons, the Post Office was unable to deliver the certified correspondence to Appellant. The CSC accepted the notice and related documents as proof that the S & WB made a good faith effort to notify Appellant of the pre-termination hearing in writing. We note that Civil Service Rule IX, § 1.2 requires that appointing authorities hold pre-termination hearings prior to effectuating an employee's termination and notify the employee of the allegations and contemplated discipline. The Rule does not require that the notice be in writing.

      At the outset of the CSC hearing, Appellant's counsel raised an issue regarding the lack of any response by the S & WB to a request for the production of documents, which apparently had been misdirected. As a result, the S & WB was not aware of the request until shortly before the appeal hearing. Through the requested documents, Appellant intended to introduce exhibits related to his job performance, disciplinary history, and the S & WB's approach to misconduct similar to the type Appellant allegedly perpetrated. Following the hearing, Appellant requested that the record be left open solely for the pre-termination notice documents, which were subsequently provided and admitted (see supra note 2). Appellant has advanced no argument on appeal that the record is incomplete.


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    The CONGREGATION OF the IMMACULATE CONCEPTION ROMAN CATHOLIC CHURCH OF the PARISH OF CALCASIEU d/b/a Immaculate Conception Cathedral School v. SAM ISTRE CONSTRUCTION, INC., et al.
    17-1186
    Court of Appeal of Louisiana, Third Circuit.
    August 8, 2018
   Sean P. Mount, Anne E. Medo, Bryce M. Addison, DEUTSCH KERRIGAN, LLP, 755 Magazine Street, New Orleans, LA 70130, (504) 581-5141, COUNSEL FOR RELATOR/APPLICANT: Sam Istre Construction, Inc.

Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF: The Congregation of the Immaculate Conception Roman Catholic Church of the Parish of Calcasieu d/b/a Immaculate Conception Cathedral School

L. Paul Foreman, Raggio, Cappel, Chozen & Berniard, 1011 Lakeshore Drive, Suite 500, Lake Charles, LA 70601, (337) 436-9481, COUNSEL FOR PLAINTIFF: The Congregation of the Immaculate Conception Roman Catholic Church of the Parish of Calcasieu d/b/a Immaculate Conception Cathedral School

Maurice L. Tynes, Maurice L. Tynes & Associates, PLC, 4839 Ihles Road, Lake Charles, LA 70605, (337) 479-1173, COUNSEL FOR DEFENDANT: Western Surety Company

Jack E. Truitt, The Truitt Law Firm, LLC, 149 North New Hampshire Street, Covington, LA 70433, (985) 327-5266, COUNSEL FOR DEFENDANT: Morgan Roofing Company, Inc.

Marshall M. Redmon, Phelps Dunbar, LLP, 365 Canal Place, Suite 2000, New Orleans, LA 70130, (504) 566-1311, COUNSEL FOR DEFENDANT: Morgan Roofing Company, Inc.

Kay A. Theunissen, Paul D. Escott, Mahtook and Lafleur, 600 Jefferson Street, Suite 1000, Lafayette, LA 70501, (337) 266-2189, COUNSEL FOR DEFENDANT: Associated Design Group, Inc.

Michael J. Williamson, Plauche, Smith, & Nieset, LLC, 1123 Pithon Street, Lake Charles, LA 70601, (337) 436-0522, COUNSEL FOR DEFENDANT: Ricky Bellon, LLC

James A. Mijalis, Lunn, Irion, Salley, Carlisle & Gardner, APLC, 330 Marshall Street, Suite 500, Shreveport, LA 71101, (318) 222-0665, COUNSEL FOR DEFENDANT: Employers Mutual Casualty Company

Adrian G. Nadeau, J. Weston Clark, The Long Law Firm, LLP, 1800 City Farm Drive, Building 6, Baton Rouge, LA 70806, (225) 922-5110, COUNSEL FOR DEFENDANTS: C.R. Fugatt, AIA Architects, XL Specialty Insurance Company

Michael E. Parker, Allen & Gooch, 2000 Kaliste Saloom Road, Suite 400, Lafayette, LA 70508, (504) 836-5200, COUNSEL FOR DEFENDANT: Vigo Masonry, Inc.

Court composed of Elizabeth A. Pickett, Billy H. Ezell, Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

Kyzar, J.

Relator, Sam Istre Construction, Inc. (Sam Istre Construction), seeks supervisory writs from the judgment of the trial court which denied its exception of peremption. For the reasons set forth herein, we deny the writ and return the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This case involves a lawsuit filed by Plaintiff, the Congregation of The Immaculate Conception Roman Catholic Church of the Parish of Calcasieu d/b/a Immaculate Conception Cathedral School. In 2010, Plaintiff solicited bids for the construction of a three-story addition to Plaintiff's existing school building, to be done in accordance with architectural plans and specifications drafted by Fugatt Architects. Relator, Sam Istre Construction, won the bid for the $2 million South Annex project and commenced construction in 2011. The Certificate of Substantial Completion was recorded on March 14, 2012. After completion of the project, Plaintiff's school officials gradually began noticing defects, such as tar-like drippings on the third floor and rust around the perimeter of the third-floor metal roof deck. Midway through 2016, Plaintiff began investigating the water and moisture intrusion issues in the South Annex. While investigating in January 2017, Plaintiff discovered mildew and mold behind the bookshelves on the exterior wall of the library on the first floor of the South Annex.

On March 2, 2017, Plaintiff filed the instant lawsuit, asserting breach of contact claims as well as negligent construction and other tort claims, against various architects and contractors, including Relator, Sam Istre Construction. Additionally, Plaintiff asserted claims under the Louisiana Unfair Trade Practice and Consumer Protection Act (LUTPA), La.R.S. 51:1401, et seq, against Sam Istre Construction for allegedly engaging in unfair trade practices by substituting inferior, non-approved materials and/or omitting materials required by the plans and specifications. Relator filed an exception of peremption, seeking dismissal of Plaintiff's LUTPA claim against it. Following a hearing, the trial court denied the exception. Sam Istre Construction filed this application in docket number 17-1186 for supervisory writs with this court, seeking review of the judgment denying its exception of peremption.

LUTPA provides that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." La.R.S. 51:1405(A). The act allows for a private cause of action.

Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act, or practice was knowingly used, after being put on notice by the attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney fees and costs. Upon a finding by the court that an action under this Section was groundless and brought in bad faith or for purposes of harassment, the court may award to the defendant reasonable attorney fees and costs.

La.R.S. 51:1409(A).

Louisiana Revised Statutes 51:1409(E) currently states that "[t]he action provided by this section shall be prescribed by one year running from the time of the transaction or act which gave rise to this right of action." In discussing LUTPA, this court has recognized the following:

The Unfair Trade Practices Law states that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." La.R.S. 51:1405(A). Jurisprudence has held that a practice is considered unfair, in the context of the unfair trade practices law, when it offends public policy and when the practice is unethical, oppressive, unscrupulous, or substantially injurious to consumers or business competitors. See Inka's S'Coolwear, Inc. v. Sch. Time, L.L.C. , 97-2271 (La.App. 1 Cir. 11/6/98), 725 So.2d 496. The determination of what constitutes an unfair trade practice is fact-sensitive and, as such, can only be decided on a case-by-case basis. See Vermilion Hosp., Inc. v. Patout , 05-82 (La.App. 3 Cir. 6/8/05), 906 So.2d 688. Louisiana's unfair trade practices law gives a right of action to anyone who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as the result of an unfair trade practice and provides for the recovery of actual damages, including court costs and attorneys' fees. See La.R.S. 51:1409.

Doland v. ACM Gaming Co. , 05-427, pp. 7-8 (La.App. 3 Cir. 12/30/05), 921 So.2d 196, 202.

Relator asserts that this court and other Louisiana state and federal courts have consistently held that the one-year time limitation set forth in La.R.S. 51:1409(E) is peremptive, and not prescriptive. See Canal Marine Supply, Inc. v. Outboard Marine Corp. , 522 So.2d 1201 (La.App. 4 Cir. 1988) ; Glod v. Baker , 04-1483 (La.App. 3 Cir. 3/23/05), 899 So.2d 642, writ denied , 05-1574 (La. 1/13/06), 920 So.2d 238. Relator, therefore, asserts that Plaintiff's LUTPA claims against it are subject to a one-year peremptive period. Relator notes that, although the construction of the school annex was completed in March 2012, Plaintiff did not file the instant lawsuit until March 2, 2017, five years later. As such, Relator maintains that Plaintiff's LUTPA claims against it are barred by peremption.

"Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon expiration of the peremptive period." La.Civ.Code art. 3458. Peremption may not be renounced, interrupted, or suspended. La.Civ.Code art. 3461. In contrast, when claims are subject to a prescriptive, rather than peremptive, period, "prescription may be renounced, interrupted, or suspended, and contra non valentem applies an exception to the statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues." Borel v. Young , 07-419, pp. 8-9 (La. 11/27/07), 989 So.2d 42, 49, reversed on rehearing on other grounds , (La. 7/1/08) (citations omitted).

In the instant case, Plaintiff takes the position that the one-year time period established by La.R.S. 51:1409(E) for the filing of a LUTPA claim is a prescriptive period, and thus, subject to interruption or suspension. Plaintiff alleges that when a brick exterior veneer was removed from the East side of the South Annex, adjacent to the library, it was discovered that Relator had failed to install the insulation that was called for in the construction plans. Plaintiff contends that instead of installing a specified insulation wrap, Tyvek by Dupont, Relator used a non-approved, cheaper house-wrap. Plaintiff also contends that this improper house-wrap substitution is the cause of the moisture intrusion, which lead to rusting of the steel beams and growth of mold and mildew inside the South Annex.

Plaintiff maintains that the fraudulent substitutions and omissions giving rise to its LUTPA claims against Relator were hidden and not discovered or discoverable until the brick wall was removed. The subject lawsuit was filed within one year of the wall removal and subsequent discovery. According to Plaintiff, its LUTPA claims against Relator were timely filed because the one-year time period allotted for filing a LUTPA claim is prescriptive and subject to interruption or suspension during the time in which Relator's fraudulent acts prevented Plaintiff from discovering its LUTPA cause of action. Plaintiff argues that it is inconceivable that the legislature intended to include a one-year peremptive period for a LUTPA claim involving fraud and deceit, especially since virtually all other peremptive statutes provide for a time period longer than one year and contain exceptions for fraud and/or fraudulent concealments.

Plaintiff acknowledges that this court and other Louisiana appellate courts, as well as various federal courts, have held that the one-year time period set forth in La.R.S. 51:1409(E) is peremptive, despite the fact that the express wording of the statute itself describes the time period as prescriptive. However, Plaintiff asserts that the holdings in those cases are incorrect and further notes that Relator has not cited any Louisiana Supreme Court decisions holding that the time period provided in La.R.S. 51:1409(E) is peremptive. Additionally, Plaintiff maintains that the appellate court cases, which hold that La.R.S. 51:1409(E) establishes a peremptive period, were based on the proposition that a limitation period is peremptive, rather than prescriptive, if it is contained in the statute giving rise to the cause of action. However, Plaintiff asserts that that proposition was rejected by the Louisiana Supreme Court in Borel , 989 So.2d 42.

On rehearing in Borel , the Louisiana Supreme Court held that both the one-year and three-year periods set forth in La.R.S. 9:5628 for filing medical malpractice claims are prescriptive. Plaintiff notes that in reaching that conclusion, the Louisiana Supreme Court looked to the plain wording of La.R.S. 9:5628 and concluded that because there was nothing in the statute showing that the legislature intended for the one- and three-year time periods for filing medical malpractice actions to be peremptive, the time periods for filing malpractice actions are prescriptive. Plaintiff argues that the same conclusion should be reached regarding the time period for filing LUTPA claims. Accordingly, Plaintiff asserts that the trial court correctly refused to write into La.R.S. 51:1409(E) a peremptive period which the legislature has never chosen to include in that statute. We agree.

Louisiana Revised Statutes 51:1409(E) specifically states that any LUTPA action "shall be prescribed by one year[.]" When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La.Civ.Code art. 9. Although the courts are obliged to construe the law so as to effectuate its purpose, this duty does not include license to ignore the law's clear and unambiguous terms or to refrain from enforcing the law in accordance with its plain meaning. Bank of New York v. Parnell , 10-435 (La. 11/30/10), 56 So.3d 160, cert. denied , 565 U.S. 817, 132 S.Ct. 98, 181 L.Ed.2d 27 (2011).

In its writ application, Relator points out that the Borel case on which Plaintiff relies dealt exclusively with medical malpractice claims and does not address the time period for filing LUTPA claims. Also, Relator contends the Borel decision did not serve to do away with the long-standing policy of finding that a time limitation period included in a statute which creates a cause of action is peremptive rather than prescriptive. Relator argues that the time delays for filing a medical malpractice claim are not peremptive because the Louisiana Medical Malpractice Act (LMMA), La.R.S. 40:1231.1, et seq., did not create the right to file a tort action, including a medical malpractice claim. In that regard, Relator notes that the right to file suit existed long before the passage of the LMMA. To the contrary, the right to file LUTPA claims was established by the LUTPA statute itself. As such, Relator maintains that the time period for filing LUTPA claims is peremptive, as reflected in our jurisprudence.

We find no merit to Relator's argument, based upon both our reading of La.Civ.Code art. 9 and the recent acts of the Louisiana Legislature. Act No. 337 of the 2018 Louisiana Regular Session, which shall go into effect on August 1, 2018, changes the wording of La.R.S. 51:1409(E) (emphasis added) to read: "The action provided by this Section shall be subject to a liberative prescription of one year running from the time of the transaction or act which gave rise to this right of action." This suggests to us that the legislature always intended the time period to be prescriptive and that this amendment merely clarifies and interprets an existing law. Thus, though this amendment is not yet in effect, we find it to be interpretive.

"[I]nterpretive legislation does not create new rules, but merely establishes the meaning that the interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties." Ardoin v. Hartford Accident & Indemnity Co. , 360 So.2d 1331, 1339 (La.1978). Further, as interpretive legislation does not establish new rights but merely determines the meaning of existing laws, it may be applied to facts occurring prior to its promulgation. Id. Thus, we find the time period provided in La.R.S. 51:1409(E) for the filing of LUTPA claims to be prescriptive, rather than peremptive, and that the trial court did not err in so holding.

DECREE

For the foregoing reasons, the instant writ application is denied. The case is remanded to the trial court for further proceedings.

WRIT DENIED.


author: EZELL, Judge.

text:
    James M. BIGLANE and Charlotte Biglane Nobile v. BOARD OF COMMISSIONERS, Fifth Louisiana Levee District, et al.
    18-101 consolidated with 18-100
    Court of Appeal of Louisiana, Third Circuit.
    APRIL 24, 2017 JUNE 19, 2017 September 26, 2018
    Randall Alan Smith, Tiffany Hawkins Davis, Mary Nell Bennett, Smith & Fawer, 201 St. Charles Ave., Suite 3702, New Orleans, LA 70170, (504) 525-2200, COUNSEL FOR PLAINTIFFS/APPELLEES: James M. Biglane, Charlotte Biglane Nobile
    Patrick Bayard McIntire, Oats & Marino, 100 East Vermilion Street, Suite 400, Lafayette, LA 70501, (337) 233-1100, COUNSEL FOR DEFENDANT/APPELLANT: Board of Commissioners for the Fifth Louisiana Levee District
    Madaline Cross Gibbs, Seventh Judicial District Court Assistant District Attorney, P.O. Box 600, Harrisonburg, LA 71340, (318) 336-5526, COUNSEL FOR DEFENDANT/APPELLANT: Board of Commissioners for the Fifth Louisiana Levee District
    John D. Crigler, Jr., Bishop Paxton Crigler & Moberley, P.O. Box 97, St. Joseph, LA 71366, (318) 766-4892, COUNSEL FOR DEFENDANT/APPELLANT: Board of Commissioners for the Fifth Louisiana Levee District
    Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   EZELL, Judge.

For the reasons set forth in the companion consolidated case hereto, Biglane v. Bd. of Commissioners, Fifth Louisiana Levee Dist., et al. , 18-100 (La.App. 3 Cir. ___/___/18), --- So.3d ----, the April 24, 2017 and June 19, 2017 judgments of the Seventh Judicial District Court in favor of James Biglane and Charlotte Biglane Nobile against the Fifth Louisiana Levee District are reversed. All costs of this appeal are assessed against the James Biglane and Charlotte Biglane Nobile.

APRIL 24, 2017 JUDGMENT REVERSED AND RENDERED; JUNE 19, 2017 JUDGMENT REVERSED.