author: Judge Tiffany G. Chase

text:
    Richard L. RUBIN, M.D. v. NON-FLOOD PROTECTION ASSET MANAGEMENT AUTHORITY, Orleans Levee District, Southeast Louisiana Flood Protection Authority-East, State of Louisiana, ABC Insurance Company, J.P. & Sons Dredging L.L.C. and DEF Insurance Company
    NO. 2018-CA-0500
    Court of Appeal of Louisiana, Fourth Circuit.
    November 14, 2018
    Stephen K. Conroy, Brian A. Gilbert, CONROY LAW FIRM, PLC, 3838 North Causeway Boulevard, Suite 3130, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Virgil Addison Lacy, III, William Lee Brockman, BLUE WILLIAMS, L.L.P, 3421 N. Causeway Blvd, Suite 900, Metairie, LA 70002, Gerard G. Metzger, Charles T. Curtis, Jr., GERARD G. METZGER, APLC, 829 Baronne Street, New Orleans, LA 70113, Byron D. Kitchens, Charles H. Abbott, FORMAN WATKINS & KRUTZ, LLP, 701 Poydras Street, Suite 4350, Suite 4350, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Richard L. Rubin, M.D. (hereinafter "Dr. Rubin"), Rachael Sherman Rubin (hereinafter "Rachael") and Carolyn L. Rubin (hereinafter "Carolyn"), seek review of the trial court's December 5, 2017 judgment granting Non-Flood Protection Asset Management Authority and J.P. & Sons Dredging L.L.C.'s exceptions of prescription. The Rubins also seek review of the March 9, 2018 judgment denying their motion for new trial. For the reasons that follow, we reverse the judgment of the trial court granting the exception of prescription and pretermit review of the judgment denying the motion for new trial.

Facts and Procedural History

On November 16, 1972, Dr. Rubin was assigned the lease of the land and water bottom located at 7315 West Roadway, Boathouse # W-18, New Orleans, LA 70124 (hereinafter "the property") from Peter Fountain (hereinafter "Mr. Fountain). Mr. Fountain was leasing the property from the Non-Flood Protection Asset Management Authority's (hereinafter "the Authority") predecessor, The Orleans Levee Board. Dr. Rubin also purchased the buildings, fixtures and improvements located on the property from Mr. Fountain. In 1996, Dr. Rubin sold fifty-percent interest of the lease in the property to his daughter Rachel. In 2008, Dr. Rubin renewed the lease with the Authority and executed a new lease agreement. In 2011, he donated his remaining fifty-percent interest in the lease to his daughter Carolyn.

On August 17, 2015, the adjacent boathouses collapsed and damaged the boathouse located on the property. The Authority contracted with J.P. & Sons Dredging L.L.C. (hereinafter "JPSD") to perform demolition of the adjacent properties. In December 2015, while the demolition was being performed by JPSD, the property was further damaged. As a result, Dr. Rubin filed a petition for damages, on July 28, 2016, naming the Authority and JPSD as defendants. Dr. Rubin alleged the Authority was negligent in failing to take any actions regarding the deteriorating adjacent properties and JPSD breached the standard of care for contractors while performing the demolition. Dr. Rubin filed a first amended and supplemental petition on December 9, 2016, alleging that his furniture in the boathouse was also damaged as a result of the collapse of the adjacent property.

On May 22, 2017, the Authority filed a partial exception of no right of action arguing that Dr. Rubin was not the proper party to bring the lawsuit because he did not possess an ownership interest in the property. On May 24, 2017, JPSD filed an identical partial exception of no right of action articulating the same argument as the Authority. By judgment dated August 1, 2017, the trial court granted both exceptions of no cause of action, reasoning that in a tort action for damage to property, the proper party to bring the action is the owner of the property. The trial court gave Dr. Rubin fifteen days after the notice of signing of judgment, which was signed on August 10, 2017, to amend his petition.

On August 24, 2017, Dr. Rubin filed a second amending and supplemental petition acknowledging that Carolyn and Rachael owned one-hundred percent of the lease in the property. Additionally, for the first time, Mr. Rubin pled that Carolyn and Rachael previously executed powers of attorney, granting him the power to act as their lawful agent. Dr. Rubin contended that the power of attorney authorized him to institute the current litigation against the Authority and JPSD on behalf of his daughters. On September 21, 2017, Carolyn and Rachael filed a petition for intervention arguing they were entitled to damages, as the owners of the property, due to the negligent actions of the Authority and JPSD regarding the demolition of the adjacent properties. On October 4, 2017, the Authority and JPSD filed a joint motion to strike, alternatively, exception of lack of procedural capacity and exception of prescription. In response, the Rubins argued that the petition for intervention was timely because it was filed within ninety days of the second amending and supplemental petition.

The matter was heard by the trial court on November 17, 2017. A judgment was issued on December 5, 2017, granting the exception of prescription; deeming the motion to strike and exception of lack of procedural capacity moot; dismissing the Rubins' claim for damages regarding the boathouse and dock with prejudice; and reserving Dr. Rubin's claim for damages with regards to his personal property. The Rubins filed a motion for new trial on December 11, 2017. The trial court denied the motion by judgment signed March 9, 2018. This appeal followed.

Jurisdictional Issue

An appellate court has an independent duty to consider whether it has subject matter jurisdiction over the matter, even when the issue is not raised by litigants. See Urquhart v. Spencer , 2015-1354, p. 3 (La.App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077 (quoting Moon v. City of New Orleans , 2015-1092, 2015-1093, p. 5 (La.App. 4 Cir. 3/16/16), 190 So.3d 422, 425 ). This Court has previously determined that perfecting an appeal of a judgment, pursuant to the requirements of La. C.C.P. art. 2121, requires (1) a petition or motion for appeal, (2) an order of appeal and (3) a notice of appeal. State v. Dennis , 2014-1258, p. 2 (La.App. 4 Cir. 4/29/15), 165 So.3d 1124, 1126 (quoting Bremermann v. Bremermann , 2005-0547, p. 2 (La.App. 4 Cir. 1/11/06), 923 So.2d 187, 188 ). The Rubins filed a "notice of appeal" with an attached order. This Court has recognized a distinction between a notice of appeal and motion for appeal:

La. C.C.P. art. 2121 is clear and unambiguous in distinguishing between a motion (petition) for appeal, an order of appeal and a notice of appeal. The distinguishing feature of a petition (motion) for appeal is that it prays for (seeks) a judgment (or an order) from a judge for specified relief (an appeal). A notice of an appeal does not seek a judgment or order from a judge for a specified relief.

Bremermann , 2005-0547, p. 3, 923 So.2d at 189 (quoting Belser v. St. Paul Fire & Marine Ins. Co. , 542 So.2d 163 (La.App. 1 Cir. 1989).

In the case sub judice , the "notice of appeal" sought review of both the December 5, 2017 and March 9, 2018 judgments. The Rubins presented a "notice of appeal" to the trial court for signature. The intent of a pleading is determined by its substance, not the caption of the pleading. Ratcliff v. Boydell , 566 So.2d 197, 200 (La.App. 4 Cir. 1990), writ denied , 571 So.2d 647 (La. 1990). The substance of the Rubins' pleading makes clear their intent to appeal the aforementioned judgments of the trial court. The fact that the pleading is captioned incorrectly is not sufficient grounds to dismiss the appeal. Additionally, an order of appeal was signed by the trial court granting the Rubins' request to appeal and set a return date. Appeals are favored in law; thus, we recognize that the "notice of appeal" filed in this matter is equivalent to a motion for appeal and will proceed with considering the merits.

Discussion

When evidence is introduced at a hearing on an exception of prescription, the trial court's findings of fact are reviewed under a manifestly erroneous/clearly wrong standard of review. Specialized Loan Servicing, LLC v. January , 2012-2668, p. 3 (La. 6/28/13), 119 So.3d 582, 584. Therefore, we will review the granting of the exception of prescription under a manifest error standard of review.

The Rubins list four assignments of error. Specifically, that: (1) the trial court erred in granting the Authority and JPSD's exception of prescription; (2) the trial court erred in not allowing the Rubins an opportunity to amend the petition to cure the prescription issue; (3) the trial court erred in failing to afford legal effect to the power of attorney executed by Carolyn and Rachael to Dr. Rubin; and (4) the trial court erred in denying the Rubins' motion for new trial. While several issues are raised on appeal, we find the central issue to be whether the trial court erred in granting the exception of prescription filed by the Authority and JPSD.

Prescription

The Rubins argue that if Carolyn and Rachael's claim prescribed, they should have been afforded an opportunity to amend the petition in intervention to cure the prescription. However, "the right to amend a petition following the sustaining of a peremptory exception is not absolute. Amendment is not permitted when it would constitute a 'vain and useless act.' " Hershberger v. LKM Chinese, L.L.C. , 2014-1079, p. 6 (La.App. 4 Cir. 5/20/15), 172 So.3d 140, 145. The Rubins have not sufficiently demonstrated what additional information could be provided to cure prescription.

As such, amendment of the petition in intervention is not warranted.

Our analysis begins with determining whether the second supplemental and amended petition, filed by the Rubins, relates back to the original petition for purposes of prescription. This is critical to our analysis because the Rubins argue that the petition in intervention is not prescribed because it was timely filed pursuant to the second amended and supplemental petition. La. C.C.P. art. 1153 provides that:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

In order for an amending petition to relate back to the date of filing of the original petition: (1) the amended claim must arise out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; and (4) the defendant will not be prejudiced in preparing and conducting his defense. Giroir v. S. Louisiana Med. Ctr., Div. of Hosps. , 475 So.2d 1040, 1044 (La. 1985).

A review of the record establishes sufficient proof that the second amended and supplemental petition relates back to the date of filing of the original petition. The second supplemental and amended petition involved the same occurrence alleged in the original petition, i.e. the damage to the boathouse as a result of the August 2015 incident; the Authority and JPSD knew about Carolyn and Rachael's ownership interest because both entities filed an exception of no cause of action against Dr. Rubin arguing that he did not possess ownership interest in the property; Carolyn and Rachael are sufficiently related to Dr. Rubin because they are his daughters to whom he transferred ownership interest in the property; and the addition of Carolyn and Rachael will not prejudice the defense because the Authority and JPSD will not be prohibited from continuing to defend the matter as it sees fit. The addition of Carolyn and Rachael does not change the existence of the claims, it simply adds the correct owners of the property to the litigation. As such, the second amended and supplemental petition relates back to the date of the filing of the original petition.

We now consider the applicability of an incidental demand to the principle of relation back. We must determine whether the second amended and supplemental petition constitutes the main demand for purposes of the applicability of La. C.C.P. art. 1041. "[A]lthough the principal action or demand is commenced by an original petition, it is not always confined to that pleading; once the petition has been validly amended the principal action or main demand encompasses the claim as amended or supplemented and not just the demand as set forth in the original petition." Moore v. Gencorp, Inc. , 633 So.2d 1268, 1271 (1994). Thus, main demands include supplemental petitions filed in an action. Once the Rubins amended the petition, that amended petition encompassed any previous petitions and became the main demand. Therefore, the second amended and supplemental petition is now the main demand.

Intervention

Our next consideration is the timeliness of the petition for intervention. Carolyn and Rachael filed a petition in intervention on September 27, 2017, alleging their right to damages, as a result of the August 2015 incident, due to their ownership interest in the property. The Authority and JPSD argue that the claims in the second amended petition do not relate back to the original petition because it fails to satisfy Giroir and La. C.C.P. art. 1153 and as such, the petition in intervention was untimely. However, the Authority and JPSD's application of Giroir to the petition in intervention is misplaced.

The Louisiana Supreme Court has addressed whether La. C.C.P. art. 1153 and the factors outlined in Giroir or La. C.C.P. art. 1067 should apply to intervention petitions. Our Supreme Court determined that La. C.C.P. art. 1067, currently La. C.C.P. art. 1041, is the correct codal article to apply to incidental demands such as intervention petitions. Stenson v. City of Oberlin , 2010-0826, p. 13 (La.App. 4 Cir. 3/15/11), 60 So.3d 1205, 1214. La. C.C.P. art. 1041 provides that:

an incidental demand is not barred by prescription or preemption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

Incidental demands include reconventions, cross-claims, interventions and the demand against third parties. La. C.C.P. art. 1031. Our Supreme Court found that "Article 10[41] clearly provides an exception to prescription or preemption for incidental demands...and thus...is the applicable statute governing the exception to prescription or preemption for an intervention." Stenson , 2010-0826, p. 14, 60 So.3d at 1214.

Although Dr. Rubin's claim regarding his personal property existed at the time the original petition was filed, he was well aware that he did not possess full ownership in the property at issue. Nonetheless, he proceeded with the matter as the sole petitioner. Dr. Rubin contends he was permitted to proceed because he had power of attorney for Carolyn and Rachael. We find this argument somewhat disingenuous as the fact remains that at the time litigation was instituted, Carolyn and Rachael were the recorded owners of the property. This Court notes that Dr. Rubin's lack of candor to the judicial process is disconcerting. Notwithstanding Dr. Rubin's conduct, Carolyn and Rachael's claim was not barred at the time the original petition was filed. The petition for intervention was filed September 27, 2017. Since the Authority was served with the second amended petition on September 7, 2017 and JPSD served on September 5, 2017, Carolyn and Rachael's petition in intervention was filed within ninety days of the date of service of the second amended petition. Therefore, pursuant to La. C.C.P. art. 1041, their claim is timely and the petition in intervention is not prescribed. The intervening petition was filed within ninety days of service of both the Authority and JPSD. As such, we find the trial court erred in granting the Authority and JPSD's exception of prescription.

The Rubins also seek review of the trial court's March 9, 2018 judgment denying their motion for new trial on the exception of prescription. Since we find the trial court erred in granting the exception of prescription, a review of the judgment regarding the motion for new trial on the exception of prescription is not warranted. As such, we pretermit this issue.

Conclusion

For the foregoing reasons, we find the trial court erred in granting the exception of prescription. Pursuant to La. C.C.P. art. 1153, the second amended and supplemental petition relates back to the original petition, encompasses that petition and becomes the main demand. Applying La. C.C.P. art. 1041, we find Carolyn and Rachael's intervention was timely filed within ninety days of the date of service of the second amended and supplemental petition. Accordingly, we reverse the ruling of the trial court granting the exception of prescription and remand the matter for further proceedings. In light of our conclusion, we pretermit review of the judgment denying the motion for new trial.

REVERSED AND REMANDED

      The parties are collectively referred to as "the Rubins."

      In the March 9, 2018 judgment, the trial court designated both the December 5, 2017 and March 9, 2018 judgments as final appealable judgments pursuant to La. C.C.P. art. 1915.

      A copy of the transcripts from the hearing on the exception of prescription is attached to the record and reveals that both parties offered, filed and introduced, and the trial court accepted, all exhibits attached to their memoranda.

      Currently La. C.C.P. art. 1041.


source: Caselaw Access Project

license: Public Domain

text:
    MERCATO ELISIO, L.L.C. v. CITY OF NEW ORLEANS, New Orleans Historic District Landmark Commission, and John Deveney
    NO. 2018-CA-0081
    Court of Appeal of Louisiana, Fourth Circuit.
    November 21, 2018
    Ravi K. Sangisetty, Parker N. Hutchinson, SANGISETTY LAW FIRM, LLC, 935 Gravier Street, Suite 835, New Orleans, LA 70112 AND Richard G. Perque, LAW OFFICES OF RICHARD G. PERQUE, LLC, 700 Camp Street, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE, MERCATO ELISIO, L.L.C.
    Joyce G. Joseph, Deputy City Attorney, Cherrell S. Taplin, Senior Deputy City Attorney, Sunni J. LeBeouf, City Attorney, CITY OF NEW ORLEANS, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/APPELLANTS, CITY OF NEW ORLEANS, NEW ORLEANS HISTORIC DISTRICT LANDMARK COMMISSION, JOHN DEVENEY
    Sarah Ney, 937 France Street, New Orleans, LA 70117, COUNSEL FOR DEFENDANT/APPELLANT, HDLC COMMISSIONER, JOHN DEVENEY
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase )
    Judge Terri F. Love This appeal arises from a public records request. A proposed apartment development was denied by the historic landmarks commission. The developer then filed a public records request for the commission's documents regarding the development. The developer, after receiving an incomplete response to the request, filed for a writ of mandamus. The trial court initially denied the developer's writ of mandamus regarding the public records request. However, after the filing of a limited motion for new trial, the trial court found that a previously withheld exhibit was a public record. The trial court also found that the plaintiff was entitled to attorney's fees with an amount to be determined after submitting documentation for an in camera inspection. Defendants appealed contending that the motion for new trial was untimely, that the trial court committed manifest error by granting the motion for new trial, and the trial court erred by awarding attorney's fees.
    We find that the developer's motion for new trial was timely filed because the notice of signing of the judgment was not mailed until the day after it was signed. We find that the exhibit, an e-mail, was a public record. Also, we find that the developer was entitled to attorney's fees as a prevailing party. Accordingly, we affirm the judgment of the trial court.
    FACTUAL BACKGROUND AND PROCEDURAL HISTORY
    Mercato Elisio, L.L.C. ("Mercato") sought to develop an apartment complex named the Elisio Lofts in the Faubourg Marigny neighborhood of New Orleans. However, the Historic District Landmarks Commission ("HDLC") did not approve the development. Subsequently, Mercato submitted a public records request to the HDLC regarding records relative to the Elisio Lofts development. The public records request stated:
    As such, we request copies of all public records, as defined in La. Rev. Stat. § 44:1 A(2)(a), dated between January 1, 2011, and December 31, 2012, in the possession of the HDLC and/or Commissioner John Deveney including, but not limited to, letters, e-mails, text messages, notes, documents, meeting minutes, calendar entries of meetings, reports and memoranda to and/or from any person or entity related to the Elisio Lofts-501 Elysian Fields Project, Mercato Elisio, LLC, Ekistics, LLC, and/or Sean Cummings. Please note such records include those that exist or were created using private accounts and/or devices utilized in conducting the business of the HDLC.
    After receiving a response to the request, Mercato filed a Petition for Writ of Mandamus and Civil Penalties, pursuant to La. R.S. 44:35, against the City of New Orleans, the HDLC, and John Deveney (a commissioner on the HDLC) (collectively "Defendants"). Mercato contended that Commissioner Deveney improperly sought to have the development denied and planned to prove same with the documents from the public records request. Mercato alleged that the response to the request did not include documents from Commissioner Deveney.
    Following the deposition of Commissioner Deveney, Defendants filed a Motion for Summary Judgment contending that they fulfilled the public records request. The trial court denied the Defendants' Motion for Summary Judgment. Mercato then took Mr. Costello's deposition regarding Commissioner Deveney's compliance with the public records request. Mercato filed a Supplemental Petition for Writ of Mandamus and Civil Penalties and Fees averring that Defendants only partially produced responses to the public records request.
    The trial court denied Mercato's Petition for Writ of Mandamus, Civil Penalties, and Fees. The trial court based the denial on a finding that Exhibit G was not a public record because "[t]his is between two spouses so it's not a public record." Mercato filed a Limited Motion for New Trial asserting that the denial of attorney's fees was contrary to the law. Mercato also maintained that the trial court erroneously determined that Exhibit G was not a public record. The Defendants filed a Joint Motion to Strike or Dismiss Mercato's Motion for New Trial alleging that the motion was untimely. The trial court found that Mercato's Motion for New Trial was timely filed. The Defendants sought supervisory review with this Court on the timeliness of the Motion for New Trial. This Court denied writs.
    The trial court granted Mercato's Limited Motion for New Trial. The trial court found that Exhibit G was a public record because there is no exception for communications between spouses. The trial court also found that Mercato was entitled to attorney's fees pursuant to La. R.S. 44:35(D). The trial court ordered Mercato to submit proposed attorney's fees and costs for an in camera inspection and a separate determination. Defendants' suspensive appeal from the judgment granting the Motion for New Trial followed.
    STANDARD OF REVIEW
    "The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion."

      Mr. Deveney is represented by separate counsel in his official and individual capacities.

      Commissioner Deveney was not present and did not vote on the development, as he was out of town. Mercato previously requested that Commissioner Deveney recuse himself based on the fact that Chris Costello, his life partner, was an officer and board member of the Faubourg Marigny Improvement Association that publicly disapproved of Mercato's proposed development.

      Mr. Costello conducted the initial search for documents on Commissioner Deveney's personal computer on behalf of Commissioner Deveney.

      Exhibit G was an e-mail communication between Commissioner Deveney and Mr. Costello wherein Commissioner Deveney sought Mr. Costello's input on a written objection to Mercato's development. Commissioner Deveney was in the process of drafting the opposition to send to the other members of the HDLC.

      Mercato Elisio, L.L.C. v. City of New Orleans, New Orleans Historic District Landmarks Commission, and John Deveney , 17-0395 (La. App. 4 Cir. 7/05/17).

   Barham, Warner & Bellamy, L.L.C. v. Strategic All. Partners, L.L.C. , 09-1528, p. 6 (La. App. 4 Cir. 5/26/10), 40 So.3d 1149, 1152.

Further, the Louisiana Supreme Court expounded upon this Court's standard practice of appellate review, as follows:

It is well-settled that a court of appeal may not set aside a trial court's or a jury'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). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Ferrell v. Fireman's Fund Ins. Co. , 94-1252 (La. 2/20/95), 650 So.2d 742, 747, rev'd in part, on other grounds , 96-3028 (La. 7/1/97), 696 So.2d 569, reh'g denied , 96-3028 (La. 9/19/97), 698 So.2d 1388. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. See Lasha v. Olin Corp. , 625 So.2d 1002, 1006 (La. 1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. See Lasha , 625 So.2d at 1006. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo . Lasha , 625 So.2d at 1006.

Evans v. Lungrin , 97-0541, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735.

TIMELINESS

Firstly, Defendants challenge the timeliness of the filing of Mercato's Limited Motion for New Trial.

The time delay for applying for a new trial is seven days, not including legal holidays. La. C.C.P. art. 1974. "The delay ... commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913." Id. La. C.C.P. art. 1913(D) provides that "[t]he clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed." "We have held repeatedly that, when notice of the signing of a judgment is required by Article 1913(B), the delays for new trial motions and appeals do not run unless and until the clerk mails the required notice." Potter v. Patterson , 96-1172, p. 5 (La. App. 4 Cir. 3/19/97), 690 So.2d 1118, 1121.

The judgment was signed on January 9, 2017. As noted by the trial court, the clerk's certification does not indicate what date the judgment was mailed. The trial court then looked to other evidence. Specifically, the trial court stated that the envelope containing the judgment "was stamped by the Court's postage machine on January 10, 2017 - which [was] the earliest possible day that the judgment was mailed." Mercato filed the Limited Motion for New Trial on January 20, 2017. This time period included three days of legal holidays. Thus, the trial court found that if the judgment was mailed on January 10, 2017, then the January 20, 2017 filing of the Limited Motion for New Trial was timely.

As previously stated, the Defendants sought supervisory review of the timeliness issue, which this Court denied. No writ was filed with the Louisiana Supreme Court.

"The law of the case refers to a policy by which the court will not reconsider prior rulings in the same case." KeyClick Outsourcing, Inc. v. Ochsner Health Plan, Inc. , 11-0598, p. 7 (La. App. 4 Cir. 3/14/12), 89 So.3d 1207, 1211. "The law of the case principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal." Id. "The policy reasons behind the doctrine include: (i) avoiding re-litigation of the same issue, (ii) promoting consistency of result in the same litigation, and (iii) promoting efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue." KeyClick , 11-0598, pp. 7-8, 89 So.3d at 1211-12. The application of the law of the case is discretionary. Id. , 11-0598, p. 8, 89 So.3d at 1212. However, " '[a]rgument is barred where there is merely doubt as to the correctness of the former holding, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.' " Bank One, Nat. Ass'n v. Velten , 04-2001, p. 6 (La. App. 4 Cir. 8/17/05), 917 So.2d 454, 459, quoting Petition of Sewerage and Water Bd. of New Orleans , 278 So.2d 81, 83 (La. 1973).

Having reviewed the trial court's reasoning for finding that the Limited Motion for New Trial was timely and the doctrine of law of the case, we find no "palpable former error" to justify relitigating the issue.

MOTION FOR NEW TRIAL

Defendants contend that the trial court committed manifest error by finding, on the motion for new trial, that Exhibit G was a public record and concluded that Defendants were noncompliant with public record law. Thus, we must determine whether Exhibit G is a public record.

Louisiana Public Records Law

"Under Louisiana law, any person of the age of majority may inspect, copy or reproduce or obtain a reproduction of a public record 'except as otherwise provided in this Chapter or as otherwise specifically provided by law.' " Capital City Press v. E. Baton Rouge Par. Metro. Council , 96-1979, p. 4 (La. 7/1/97), 696 So.2d 562, 564, quoting La. R.S. 44:31. The Louisiana Supreme Court explained Louisiana public records law as follows:

The legislature, by enacting the "Public Records Law" ( LSA-R.S. 44:1 et seq. ), sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. There was no intent on the part of the legislature to qualify, in any way, the right of access. See Landis v. Moreau , 00-1157 (La. 2/21/01), 779 So.2d 691, 694-95.
The legislature has recognized that it is essential to the operation of a democratic government that the people be made aware of all exceptions, exemptions, and limitations to the laws pertaining to public records. LSA-R.S. 44:4.1(A). In order to foster the people's awareness, the legislature declared that all exceptions, exemptions, and limitations to the laws pertaining to public records shall be provided for in the Public Records Law or the Constitution of Louisiana. Id. Any exception, exemption, and limitation to the laws pertaining to public records not provided for in the Public Records Law or in the Constitution of Louisiana has no effect. Id. Thus, access to public records can be denied only when the Public Records Law or the Constitution specifically and unequivocally provide otherwise. See DeSalvo v. State , 624 So.2d 897, 902 (La.1993), cert. denied , 510 U.S. 1117, 114 S.Ct. 1067, 127 L.Ed.2d 386 (1994).
As with Article XII, Section 3, the Public Records Law should be construed liberally in favor of free and unrestricted access to public documents. Landis v. Moreau , 779 So.2d at 695 ; Title Research Corporation v. Rausch , 450 So.2d 933, 937 (La.1984). Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right to see; to allow otherwise would be an improper and arbitrary restriction on the public's constitutional rights. In re Matter Under Investigation , 07-1853 (La. 7/1/09), 15 So.3d 972, 989 ; Capital City Press v. East Baton Rouge Parish Metropolitan Council , 96-1979 (La. 7/1/97), 696 So.2d 562, 564 ; Title Research Corporation v. Rausch , 450 So.2d at 936.

Shane v. Par. of Jefferson , 14-2225, pp. 9-10 (La. 12/8/15), 209 So.3d 726, 734-35. La. R.S. 44:1(A)(2)(a) defines a public record as

All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are "public records", except as otherwise provided in this Chapter or the Constitution of Louisiana.

Exhibit G

The trial court expounded upon its ruling on the Limited Motion for New Trial by stating that Exhibit G was "responsive to the original January 2013 public records request." Exhibit G contains the phrase "501 Elysian Fields project," which was contained in the original public records request. Further, the trial court determined that Exhibit G was "an independent draft different in form and substance from the final draft and it is a public record within the meaning of the statute." We agree. Exhibit G was e-mail correspondence between Commissioner Deveney and Mr. Costello regarding Commissioner Deveney's future statement to the HDLC about his opposition to Mercato's proposed development. Mr. Costello made suggested revisions to Commissioner Deveney's statement.

In Shane , the Louisiana Supreme Court stated that "[c]learly 'electronic mail,' or 'email,' falls within the definition of 'letters,' despite generally lacking a physical form and though usually stored in an electronic format, and, if used in the performance of any work, duty, or function of a public body, under the authority of state or local law, should be deemed a 'public record.' " 14-2225, pp. 10-11, 209 So.3d at 735-36.

Defendants contend that Exhibit G is not a public record because it is only a draft of Commissioner Deveney's statement to the HDLC. They point out that Commissioner Deveney's official statement to the HDLC concerning his opposition to Mercato's proposed development was initially produced. This argument lacks merit. Exhibit G was not a word processing document that was written over while Commissioner Deveney was preparing his statement. Instead, as in Shane , Exhibit G was prepared, used, and possessed in accordance with Commissioner Deveney's work with the HDLC. As such, Exhibit G was a public record.

Next, we must examine the content of Exhibit G to determine whether "an exception, exemption, or limitation, under the Louisiana Constitution or in the Public Records Law (see LSA-R.S. 44:4.1(A) ), supersedes the right of the public to inspect the record." Shane , 14-2225, p. 16, 209 So.3d at 739. The parties do not contend that Exhibit G belongs to one of the categories of exceptions outlined in La. R.S. 44:4.1. Further, "[t]he assertion that the use of private email correspondence by a public entity should not turn the private communication into a public record overlooks the fact that public entities must regularly use private information in the entities' performance of their business, transactions, work, duties, or functions." Id. , 14-2225, p. 17, 209 So.3d at 739-40. Indeed, Commissioner Deveney utilized private e-mail accounts, as he did not have an HDLC office. We must balance Commissioner Deveney's rights to privacy with the right of the public to inspect public records. Id. , 14-2225, p. 21, 209 So.3d at 742. We find no privacy rights violated in the instant matter, as the only topic covered in Exhibit G was the substance of Commissioner Deveney's future statement to the HDLC.

Custodian of Exhibit G

As we have found that Exhibit G was a public record not entitled to an exception, Commissioner Deveney contends that we must determine who was the legal custodian of Exhibit G. Commissioner Deveney contends that he was not a legal custodian of HDLC records and cannot be held liable in solido with the public body for attorneys' fees in this case.

"The word 'custodian' is defined by LSA-R.S. 44:1 as 'the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.' " Shane , 14-2225, p. 26, 209 So.3d at 745, quoting La. R.S. 44:1(A)(3). "Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees." La. R.S. 44:31(A). The Louisiana Supreme Court stated that "it is clear that 'custody' under this statute may be a mere physical possession, for purposes of determining who may be a custodian of a public record." Shane , 14-2225, p. 26, 209 So.3d at 745. The Supreme Court went on to hold that more than one custodian can exist for one document. Id. , 14-2225, pp. 26-27, 209 So.3d at 745-46 (finding that two groups had custody of the documents and were both custodians). Therefore, the " 'custodian' of a public record may be a public official have either custody (i.e., physical possession) or control of a public record." Id. , 14-2225, p. 28, 209 So.3d at 746.

In the present matter, the trial court has not yet labeled any custodian(s) or assessed an amount of attorney's fees against any Defendants. Therefore, we find a determination of Commissioner Deveney's status as a custodian is premature, as the matter is not before us on appeal. Based on the above, we find that the trial court did not commit manifest error by determining that Exhibit G was a public record. Accordingly, the trial court did not abuse its discretion by granting Mercato's Limited Motion for New Trial.

ENTITLEMENT TO ATTORNEY'S FEES

Defendants aver that the trial court erred by finding that Mercato was entitled to an award of attorney's fees. Defendants contend that they should not be liable for attorney's fees because Mercato did not completely prevail on the Writ of Mandamus and their behavior was not arbitrary, capricious, or unreasonable.

La. R.S. 44:35(D)(1) provides:

D. (1) If a person seeking the right to inspect, copy, or reproduce a record or to receive or obtain a copy or reproduction of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof.

Further, La. R.S. 44:35(E)(1) states:

If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.

While Defendants contend that their state of mind voids the award for attorney's fees, this Court previously addressed the issue with an analysis of legislative intent. This Court held that "[t]he drafters of the statute conditioned an award of actual damages and a civil penalty on a showing of arbitrary or capricious conduct by the custodian." Ferguson v. Stephens , 623 So.2d 711, 716 (La. App. 4th Cir. 1993). Thus, "[i]t is reasonable to assume that if the drafters of the statute intended that an award of attorney's fees under 44:35(D) be conditioned on the custodian's bad faith, that condition likewise would have been specified in the statute." Id. Further, this Court held that the trial court erred by finding that a party's good faith precluded the award of attorney's fees. Id. Additionally, when examining whether the plaintiff partially or completely prevailed on the suit regarding public records, we stated that "the object of plaintiff's suit was access to the public records." Id. , 623 So.2d at 717. This Court found that the "[p]laintiff completely prevailed as to the object of her suit" and was therefore "entitled to attorney's fees and other litigation costs. Id. See also Innocence Project New Orleans v. New Orleans Police Dep't , 13-0921 (La. App. 4 Cir. 11/6/13), 129 So.3d 668.

We find Ferguson controlling and analogous. Mercato filed the Writ of Mandamus seeking compliance with its public records request. Mercato received documents after beginning litigation on the Writ of Mandamus, including the trial court's order to produce Exhibit G. As such, Mercato, like the plaintiff in Ferguson , "completely prevailed as to the object" of the suit. 623 So.2d at 717. Accordingly, we find that the trial court was required, as provided for in La. R.S. 44:35(D)(1), to award Mercato attorney's fees. The trial court has yet to award an amount of attorney's fees; therefore, the reasonableness of the amount of that award is not before us.

DECREE

For the above-mentioned reasons, we find that Mercato's Limited Motion for New Trial was timely filed because the notice of signing of the judgment was not mailed until January 10, 2017. Further, we find, as the Louisiana Supreme Court did in Shane , that the e-mail between Commissioner Deveney and Mr. Costello was a public record concerning Commissioner Deveney's work at the HDLC. Lastly, we find that Mercato was entitled to an award of attorney's fees as a prevailing party. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

      Notably, "doubt must be resolved in favor of the right to appeal." Penalber v. Blount , 405 So.2d 1376, 1377 (La. App. 1st Cir. 1981).

      La. R.S. 44:4.1 provides:
      A. The legislature recognizes that it is essential to the operation of a democratic government that the people be made aware of all exceptions, exemptions, and limitations to the laws pertaining to public records. In order to foster the people's awareness, the legislature declares that all exceptions, exemptions, and limitations to the laws pertaining to public records shall be provided for in this Chapter or the Constitution of Louisiana. Any exception, exemption, and limitation to the laws pertaining to public records not provided for in this Chapter or in the Constitution of Louisiana shall have no effect.
      B. The legislature further recognizes that there exist exceptions, exemptions, and limitations to the laws pertaining to public records throughout the revised statutes and codes of this state. Therefore, the following exceptions, exemptions, and limitations are hereby continued in effect by incorporation into this Chapter by citation:
      (1) R.S. 3:556.10, 559.9, 750, 1401, 1413, 1430.7, 1435, 3204, 3221, 3370, 3421, 3524, 3706, 4021, 4110, 4162
      (2) R.S. 6:103, 122, 135, 1308
      (3) R.S. 9:172, 224, 313, 331.1, 395, 461, 1033, 3518.1, 3556, 3574.6, 3576.21
      (4) R.S. 11:174
      (5) R.S. 12:1702
      (6) R.S. 13:1905, 2593, 3715.3, 3715.4, 3734, 4687, 5108.1, 5304, 5366(L)
      (7) R.S. 14:403, 403.1, 403.5
      (8) R.S. 15:242, 440.6, 477.2, 549, 570(F), 574.12, 578.1, 616, 660, 840.1, 1176, 1204.1, 1212.1(E), 1507, 1614
      (9) R.S. 17:7.2, 46, 47, 81.9, 391.4, 500.2, 1175, 1202, 1237, 1252, 1952, 1989.7, 2047, 2048.31, 3099, 3100.8, 3136, 3390, 3773, 3884
      (10) R.S. 18:43, 44, 114, 116, 154, 1308, 1491.5, 1495.3, 1511.8

      Ott v. Clarkson , 03-1287, p. 4 (La. App. 4 Cir. 12/10/03), 863 So.2d 663, 666, as relied upon by Defendants is distinguishable in that this Court found that the defendant voluntarily provided information to the plaintiff; thus making the plaintiff a non-prevailing party.

      Defendants rely upon Dwyer v. Early , 02-1545 (La. App. 4th Cir. 3/12/03), 842 So.2d 1124, writ denied , 03-1013 (La. 5/30/03), 845 So.2d 1053, which held that the award of attorney's fees pursuant to La. R.S. 44:35 is discretionary in nature. This Court's opinion in Dwyer is brief and was based on the trial court's reasons for judgment. The trial court relied upon the analysis of a partially prevailing party, as contained in Hunter v. Pennington , 98-1821 (La. App. 4 Cir. 1/20/99), 726 So.2d 1082. Also, the trial court relied upon Times Picayune Pub. Corp. v. New Orleans Aviation Bd. , 99-237 (La. App. 5 Cir. 8/31/99), 742 So.2d 979, which held that the amount of attorney's fees awarded was subject to an abuse of discretion review. While the full facts and circumstances present in Dwyer are unknown, the trial court focused on cases regarding partially prevailing parties and the amount of attorney's fees; neither of which is at issue in the present matter. Therefore, we find Dwyer is inapplicable and distinguishable. The case sub judice concerns a party who completely prevailed and was found to be entitled to attorney's fees with the amount to be determined later.


author: McCALLUM, J.

text:
    STATE of Louisiana, Appellee v. Patrick Kinsey ROBINSON, Appellant
    No. 52,308-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 28, 2018.
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    JOHN SCHUYLER MARVIN, District Attorney, JOHN MICHAEL LAWRENCE, HUGO A. HOLLAND, JR.,Assistant District Attorneys Counsel for Appellee
    Before STONE, STEPHENS, and McCALLUM, JJ.
   McCALLUM, J.

Patrick Kinsey Robinson ("Robinson") was charged with second degree kidnapping and aggravated burglary and tried before a jury. The jury acquitted Robinson of aggravated burglary. In conformity with the trial court's instructions, the jury returned an ostensibly responsive verdict of simple kidnapping to the second degree kidnapping charge. Robinson now appeals his conviction and sentence.

Pursuant to two recent decisions of the Louisiana Supreme Court, the verdict of guilty of simple kidnapping is not responsive to the charge of second degree kidnapping. Therefore, this is an error patent, and Robinson's conviction and sentence must be vacated and remanded, and the trial court must proceed in accordance with the Supreme Court's instructions in State v. Price , 2017-0520 (La. 6/27/18), 250 So.3d 230, 231, and State v. McGhee , 2017-1951 (La. 9/21/18), 252 So.3d 895. Accordingly all assignments of error are pretermitted.

FACTS

On March 30, 2017, officers of the Webster Parish Sheriff's Office were actively seeking Robinson for arrest on the subject aggravated burglary charge. Robinson had escaped the scene of the alleged burglary, and afterward contacted Reverend G. R. Collier, a local church pastor. Robinson testified that they communicated mainly through text messages. At trial, Robinson and Rev. Collier contradicted each other regarding whether Robinson told Rev. Collier that Robinson was wanted for aggravated burglary. They agreed that Robinson was threatening to commit suicide. The two of them arranged for Rev. Collier to pick up Robinson and provide him food and a shower. Robinson testified that he also wanted to tell Rev. Collier his version of the alleged aggravated burglary.

After communicating with Robinson, Rev. Collier met with Deputy George Salsberry and Deputy Jason Marshall regarding Robinson. Rev. Collier testified that his objective was to get Robinson psychiatric help regarding his suicidal ideations. However, unbeknown to Robinson, Rev. Collier and the deputies devised a plan for Rev. Collier to retrieve Robinson and deliver him to the deputies in a certain parking lot.

As planned, Rev. Collier went in his car and provided a ride for Robinson. When they arrived in the area near the parking lot designated as the meeting place, Robinson saw a Sarepta City police unit and drew a knife. Robinson allegedly waved the knife around and pointed it at Rev. Collier. Rev. Collier asked Robinson if he was going to "stick him" with the knife. According to Rev. Collier's testimony, Robinson gave varying answers, but insisted that he was not going back to jail and that he would do whatever it took to avoid returning to jail.

Robinson also allegedly insisted that Rev. Collier take him to Robinson's house. Rev. Collier testified that he drove past the parking lot (i.e. , the designated meeting place) because Robinson made him feel threatened with the knife. Upon seeing Rev. Collier drive past the parking lot, Deputies Marshall and Salsberry initiated pursuit. Approximately half a mile down the road, Robinson jumped out of Rev. Collier's car and escaped on foot, but was apprehended a short time later.

As previously noted, Robinson was tried on the charges of aggravated burglary and second degree kidnapping. The jury acquitted Robinson of aggravated burglary. The trial court instructed the jury that the responsive verdicts to the charge of second degree kidnapping were guilty; guilty of attempted second degree kidnapping; guilty of simple kidnapping; guilty of attempted simple kidnapping; and not guilty. The jury found Robinson guilty of the ostensibly responsive verdict of simple kidnapping. This appeal followed.

DISCUSSION

Two recent Louisiana Supreme Court decisions have held that simple kidnapping is not a "lesser and included" grade of second degree kidnapping. Price , supra ; McGhee , supra . These two cases are indistinguishable from the instant case and therefore require that Robinson's conviction and sentence for simple kidnapping be vacated.

Louisiana's responsive verdict paradigm is contained in articles 814 and 815 of the Louisiana Code of Criminal Procedure. La. C. Cr. P. art. 814 provides legislatively authorized responsive verdicts for certain crimes, but not for second degree kidnapping. Therefore, the applicable responsive verdict provision is La. C. Cr. P. art. 815, which provides that the following verdicts are responsive in all cases not governed by La. C. Cr. P. art. 814 : (1) guilty; (2) guilty of a lesser and included grade of the offense; or (3) not guilty.

"Lesser and included" offenses are "those in which all of the essential elements of the lesser offense are also elements of the greater offense charged." State v. Graham , 2014-1801 (La. 10/14/15), 180 So.3d 271. If any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser offense cannot be responsive. Id. ; State v. Simmons , 422 So.2d 138 (La. 1982) ; State v. Simmons , 2001-0293 (La. 5/14/02), 817 So.2d 16.

Second degree kidnapping is defined in La. R.S. 14:44.1 as follows:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5) ; or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

In contrast, simple kidnapping is defined in La. R.S. 14:45(A) as follows:

(1) The intentional and forcible seizing and carrying of any person from one place to another without his consent.
(2) The intentional taking, enticing or decoying away, for an unlawful purpose, of any child not his own and under the age of fourteen years, without the consent of its parent or the person charged with its custody.
(3) The intentional taking, enticing or decoying away, without the consent of the proper authority, of any person who has been lawfully committed to any institution for orphans, persons with mental illness, persons with intellectual disabilities, or other similar institution.
(4) The intentional taking, enticing or decoying away and removing from the state, by any parent of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child.
(5) The taking, enticing or decoying away and removing from the state, by any person, other than the parent, of a child temporarily placed in his custody by any court of competent jurisdiction in the state, with intent to defeat the jurisdiction of said court over the custody of the child.

In Price , supra , the defendant and his cohorts arrived at a residence with a plan to steal a safe. Specifically, the plan was to use the promise of marijuana to lure the people present at the residence into the garage, hold them at gunpoint, and then find and steal the safe. Some of the victims were successfully lured into the garage, but others were violently forced there. The defendant ultimately held five persons at gunpoint in the garage. The defendant was charged with, among other things, five counts of second degree kidnapping. The jury returned a verdict of guilty of five counts of simple kidnapping. Id.

The court in Price juxtaposed La. R.S. 14:44.1 (A) & (B), supra, (defining second degree kidnapping) and La. R.S. 14:45(A), supra , (defining simple kidnapping) and reasoned:

[I]t is possible to commit second degree kidnapping without committing simple kidnapping. Indeed, there are ten ways, given the manner in which these statutes define the offenses. Applying Simmons , because reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive as required by La. C. Cr. P. art. 815.

In State v. McGhee , supra , the Louisiana Supreme Court, in a per curiam opinion, reaffirmed its ruling in Price . The victim was riding in the car with several other people. Two of them dragged her out of the car and handed her over to Asa Bentley, who dragged her into another vehicle and allegedly killed her therein. The procedural history of McGhee is complex. The defendant was charged with second degree kidnapping, but the jury returned a verdict of guilty of simple kidnapping as a principal. The Louisiana Supreme Court granted writs and remanded to the Third Circuit "to reconsider its affirmance of the defendant's conviction in light of State v. Price. " State v. McGhee , supra .

The holdings of Price and McGhee are controlling in this case. Some of the victims in Price were "violently forced" into the garage and held there at gunpoint. The facts of Price and McGhee are essentially indistinguishable from those alleged in the instant case: all involved forcibly seizing and carrying the victim from one place to another. Additionally, both Price and this case involved use of a dangerous weapon in the commission of the kidnapping. Price and McGhee are binding precedent in this case. The jury's verdict of guilty of simple kidnapping was not responsive to Robinson's charge of second degree kidnapping.

A nonresponsive verdict is "error patent on the face of the record and therefore reviewable on appeal despite absence of an objection during trial." State v. Turnbull , 377 So.2d 72 (La. 1979) ; State v. Mayeux , 498 So.2d 701 (La. 1986) ; State v. Campbell , 1995-1409 (La. 3/22/96), 670 So.2d 1212 (although defendants "acquiesced in the list of responsive verdicts given jurors by the trial judge," the jury's "return of the unresponsive verdicts ...

constitutes an error patent on the face of the record").

Price further held that the jury's return of the nonresponsive verdict of guilty of simple kidnapping constituted an "implicit acquittal" of the charged offense of second degree kidnapping. Price , supra at 234-5,. On that basis, the Price court reversed the conviction and sentence and remanded to the trial court for entry of a post-verdict judgment of acquittal as to the five counts of second degree kidnapping. Therefore, the trial court in this case is constrained to do likewise.

CONCLUSION

Robinson's conviction and sentence are vacated, and the case is remanded to the trial court for further proceedings in accordance herewith and in accordance with State v. Price , supra , and State v. McGhee , supra .

CONVICTION AND SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.

      We note that the trial court did not have the benefit of the Louisiana Supreme Court cases on which this error patent is based because they were not decided until after the subject trial had concluded.

      The defendant was charged with second degree kidnapping, but the jury returned a verdict of guilty of simple kidnapping as a principal. State v. McGhee , 2015-285 (La. App. 3 Cir. 11/4/15), 179 So.3d 739. The Third Circuit reversed due to insufficient evidence, and pretermitted the other assignments of error. Id. The Louisiana Supreme Court reversed, holding that the evidence was sufficient to support the conviction. State v. McGhee , 2015-2140 (La. 6/29/17), 223 So.3d 1136. On remand, the Third Circuit affirmed. State v. McGhee , 2015-286 (La. App. 3 Cir. 10/4/17), 227 So.3d 863. The Louisiana Supreme Court again granted writs and, in light of Price, held that simple kidnapping was not responsive to the charge of second degree kidnapping. State v. McGhee , 2017-1951 (La. 9/21/18), 252 So.3d 895.


author: JOHNSON, J.

text:
    Clyde PRICE and His Wife Mary Price v. CHAIN ELECTRIC COMPANY and Entergy Corporation And/or Its Affiliate
    NO. 18-CA-162
    Court of Appeal of Louisiana, Fifth Circuit.
    November 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CLYDE PRICE AND HIS WIFE MARY PRICE, Victor J. Woods, Jr., Baton Rouge
    COUNSEL FOR DEFENDANT/APPELLEE, ENTERGY CORPORATION AND ENTERGY LOUISIANA, L.L.C., Ernest P. Gieger, Jr., Emily E. Eagan, New Orleans
    Panel composed of Judges Marc E. Johnson, Hans J. Liljeberg, and John J. Molaison, Jr.
   JOHNSON, J.

Plaintiffs, Clyde and Mary Price, appeal the trial court's granting of summary judgment in favor of Defendant, Entergy Louisiana, L.L.C. ("ELL"), finding that ELL was Mr. Price's statutory employer and dismissing Plaintiffs' tort claims against ELL on the basis that Plaintiffs' exclusive remedy against ELL is in workers' compensation. For the following reasons, we affirm.

FACTS & PROCEDURAL HISTORY

This is Plaintiffs' second appeal. The first appeal was likewise from the trial court's granting of summary judgment in favor of ELL. However, this Court reversed the ruling and remanded for further proceedings on the basis that certain exhibits were not properly admitted into evidence for purposes of summary judgment and, thus, ELL failed to prove it was entitled to summary judgment. See Price v. Chain Electric Co. , 16-597 (La. App. 5 Cir. 4/12/17), 216 So.3d 388. On remand, ELL filed a second motion for summary judgment, which was granted on October 10, 2017 after a hearing. Plaintiffs now seek review of that judgment.

The facts have not changed since the first appeal, in which we set out the facts as follows:

On June 9, 2005, Chain Electric Company ("Chain") and Entergy Services, Inc. ("ESI") entered into a written agreement, entitled "Entergy Systemwide Multipurpose Maintenance, Modification and Construction General Services Agreement" ("the Agreement"), bearing contract number 10092965. Pursuant to the Agreement, ESI and Chain agreed that any "affiliate" of ESI could issue Contract Orders to Chain requesting Chain's services. The parties further agreed that any and all Contract Orders issued by an affiliate were deemed to incorporate the provisions of the Agreement. The Agreement provides that an affiliate that issues a Contract Order to Chain is recognized as the statutory employer of Chain's employees.
On June 1, 2011, Chain and ELL entered into a Contract Order, bearing contract number 10318822 and providing that Chain would perform services for ELL, commencing on June 1, 2011 and ending on May 31, 2013. This Contract Order indicates that it was issued pursuant to the Agreement, number 10092965, between ESI and Chain.
On November 28, 2012, while working as an employee of Chain, Clyde Price was assisting with excavation and trenching work for the purpose of adding additional line capacity for ELL. Mr. Price sustained injuries when an incident or "cave-in" occurred in the trench where he was working. On December 2, 2013, Mr. Price and his wife, Mary Price, filed this lawsuit against Chain, Entergy Corporation, and/or its affiliate, alleging that defendants were negligent by failing to ensure that proper safety procedures were followed. Plaintiffs subsequently amended their petition to name ELL as a defendant, in lieu of Entergy Corporation.

Price , supra at 389-90.

In its second motion for summary judgment filed on remand on July 6, 2017, ELL asserted that it was Mr. Price's statutory employer and, therefore, it was immune from tort claims because Plaintiffs' exclusive remedy was in workers' compensation. ELL argued that it was an affiliate of ESI and, therefore, the Contract Order between ELL and Chain Electric incorporated the Agreement between Chain Electric and ESI, which expressly recognized ESI and its affiliates as a statutory employer.

In support of its motion for summary judgment, ELL submitted several exhibits, including the Agreement, the Contract Order, and the affidavits of Diane Ehlers (a procurement specialist for ESI), Randy Gegenheimer (a construction supervisor with ELL), and Mark Otts (Assistant General Counsel - Corporate and Securities with ESI), all who attested that ELL was an affiliate of ESI and Entergy Corporation, Inc. ("Entergy Corporation"), the only named affiliate in the Agreement.

Plaintiffs filed an opposition arguing that ELL failed to prove it was an affiliate of ESI as defined in the Agreement. Specifically, Plaintiffs maintained that ELL failed to prove that it was owned by Entergy Corporation or that Entergy Corporation controls, directly or indirectly, more than 50% of the ownership interest or appoints ELL's directors or their functional equivalents. Additionally, Plaintiffs contended there was no valid contract between ELL and Chain Electric because the contract was signed on behalf of ELL by someone who Plaintiffs asserted did not have express authority to do so.

In support of its opposition, Plaintiffs relied on the affidavits and deposition testimonies of Ms. Ehlers, Mr. Gegenheimer, and Mr. Otts. Plaintiffs argued that Ms. Ehlers and Mr. Gegenheimer did not have the requisite knowledge to testify whether ELL was an affiliate of Entergy Corporation. Plaintiffs further maintained that Mr. Otts' testimony was inconsistent and, thus, unreliable.

At the conclusion of the hearing on the motion for summary judgment, the trial court found that "based upon the exhibits, specifically, Mr. Otts' affidavit and organizational chart," ELL was an affiliate of Entergy Corporation. As a result, the trial court granted ELL's motion for summary judgment, finding Plaintiffs' exclusive remedy was in workers' compensation.

ISSUE

On appeal, Plaintiffs challenge the granting of summary judgment in favor of ELL on the basis it was Mr. Price's statutory employer. Plaintiffs maintain that ELL failed to prove that it was entitled to judgment as a matter of law because it failed to prove that it was an affiliate of Entergy Corporation as defined in the Agreement. Plaintiffs aver that because ELL failed to prove it was an affiliate of Entergy Corporation, it could not take advantage of the Agreement, which provided for a contractual statutory employer relationship.

LAW & ANALYSIS

Appellate courts review summary judgment de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Batiste v. United Fire & Casualty Co. , 17-482 (La. App. 5 Cir. 3/14/18), 241 So.3d 491, 496. Specifically, summary judgment shall be granted "if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Jackson v. City of New Orleans , 12-2742 (La. 1/28/14), 144 So.3d 876, 882, cert. denied , --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014). A genuine issue of material fact is one as to which reasonable minds could disagree; if reasonable minds could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Whether a particular fact in dispute is material for purposes of summary judgment can only be determined in light of the substantive law applicable to the case. Id. When examining factual issues, courts may not consider the merits of the case, make credibility determinations, evaluate testimony, or weigh evidence. Hines v. Garrett , 04-806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam ). The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1).

Under the Louisiana Workers' Compensation Act, La. R.S. 23:1032 et seq., an employee injured in an accident while in the course and scope of his employment is generally limited to the recovery of workers' compensation benefits as his exclusive remedy against his employer and may not sue his employer, or any principal, in tort. Louque v. Scott Equip. Co., LLC , 15-43 (La. App. 5 Cir. 4/29/15), 170 So.3d 335, 338. The Louisiana Workers' Compensation Act applies both to a direct employer/employee relationship as well as to a statutory employer/employee relationship. Id.

The statutory employer doctrine is codified in La. R.S. 23:1061. Subsection A(1) provides in pertinent part:

when any "principal" ... undertakes to execute any work, which is part of his trade, business, or occupation and contracts with any person, in this Section referred to as the "contractor", for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032....

Subsection A(3) further provides that, except in the two-contract situation set forth in La. R.S. 23:1061(A)(2), a statutory employer relationship "shall not exist ... unless there is a written contract between the principal and a contractor ... which recognizes the principal as the statutory employer." When there is such a written contractual recognition of a statutory employer relationship, there is a rebuttable presumption of a statutory employer relationship between the principal and the contractor's employees that may only be overcome by showing that "the work performed is not an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services." La. R.S. 23:1061(A)(3).

An employer seeking to avail itself of tort immunity under La. R.S. 23:1032 bears the burden of proving its entitlement to immunity. Matrana v. Argonaut Great Central Ins. Co. , 01-640 (La. App. 5 Cir. 12/12/01), 806 So.2d 732, 734, writ denied , 02-124 (La. 3/22/02), 811 So.2d 941. The ultimate determination of whether a principal is a statutory employer entitled to immunity is a question of law for the court to decide. Louque , 170 So.3d at 337.

Here, ELL relies on the Agreement between ESI and Chain Electric as the written contract that provides for the statutory employer relationship of which it seeks to avail itself. Specifically, Section 13.1 of the Agreement provides in pertinent part:

Nothing in this Article shall be construed as precluding the User from raising the "Statutory Employer" defense, if applicable, to any suit filed against the User by an employee of the Contractor or any Subcontractor. Further, notwithstanding anything in this Subsection to the contrary, the parties mutually agree that it is their intention to recognize the User as the statutory employer of the Contractor's and Subcontractors' employees ... in accordance with Louisiana Revised Statute 23:1061....

The Agreement further provides that "[a]n Affiliate may, from time to time, issue Contract Orders to Contractor under this Agreement..." and that all Contract Orders accepted by the Contractor are "deemed to incorporate the provisions of this Agreement."

"Affiliate" is defined in Section 1.1 of the Agreement, which contains five subsections - subsection (a) specifically lists Entergy Corporation as an affiliate while subsections (b) through (e) set forth different definitions of an affiliate. The parties agree that the definition at issue in this case is subsection (b), which defines an affiliate as

any corporation, company, partnership or other entity in the United States in which Entergy Corporation now or hereafter owns or controls, directly or indirectly, more than fifty percent (50%) of the ownership interest having the right to vote or appoint its directors or their functional equivalents ("Affiliated Company").

ELL contends that it is an affiliate of ESI and as an affiliate, it entered into a Contract Order with Chain Electric. In support of its position, ELL offered the affidavit of Mark Otts, Assistant General Counsel - Corporate and Securities with ESI, who stated that he has regular access to and is personally familiar with the business records of Entergy Corporation, the only named affiliate of ESI in the Agreement. Referring to an organizational chart that was attached as an exhibit to his affidavit, Mr. Otts stated that ELL is a subsidiary and affiliate of Entergy Corporation. He explained that Entergy Corporation owns all the membership interests in ESI, as well as Entergy Louisiana Holdings, LLC, and that Entergy Louisiana Holdings, LLC owns all the membership interests in ELL. As such, Entergy Corporation owns or controls more than 50% of the ownership interests in ELL.

In opposition, Plaintiffs argue that ELL has not proven that it is an affiliate of ESI under the terms of the Agreement. First, they contend ELL was not "now" owned by Entergy Corporation at the time the Agreement was signed because ELL did not exist at that time. Second, they maintain ELL was not "hereafter owned" by Entergy Corporation at any time after the Agreement was signed because Entergy Corporation never exercised direct, immediate or exclusive authority over ELL. And, third, plaintiffs assert Entergy Corporation did not directly or indirectly control more than 50% of the ownership interest of ELL at the time the Agreement was executed. We find no merit to Plaintiffs' arguments.

The clear language of the Agreement provides that an affiliate is any corporation which Entergy Corporation "now or hereafter owns or controls, directly or indirectly, more than fifty percent (50%) of the ownership interest." The mere fact ELL came into existence after the Agreement was executed is inconsequential under the plain terms of the Agreement which includes entities that Entergy Corporation "hereafter" owns or controls. Additionally, contrary to Plaintiffs' claims that there was no direct control by Entergy Corporation of ELL, the Agreement expressly provides for direct or indirect control or ownership by Entergy Corporation of the affiliate entity. Mr. Otts admitted in his deposition that Entergy Corporation did not directly control ELL; however, he explained that because of the organizational structure, Entergy Corporation exercised indirect control of ELL. Although Plaintiffs attempted to show that Entergy Corporation did not own or control ELL through various Texas Franchise Tax Public Information Reports, this evidence did not refute Mr. Otts' deposition testimony regarding the structural organization of Entergy Corporation or its ownership and control of ELL.

Plaintiffs further challenge ELL's status as an affiliate of ESI by asserting that the Contract Order was invalid - specifically, that the person who signed the Contract Order on behalf of ELL did not possess the requisite authority to execute the contract because he was neither an employee nor agent of ELL. However, Plaintiffs offer no evidence or any legal argument in support of their position. Thus, we find this challenge lacks merit.

DECREE

Based on the foregoing, we find no genuine issues of material fact exist and that ELL is an affiliate of ESI by the clear definition set forth in the Agreement. As an affiliate, ELL contracted with Chain Electric through a Contract Order. By the terms of the Agreement, the Contract Order between ELL and Chain incorporated the provisions of the Agreement, which expressly provided that ELL was the statutory employer of Chain and its employees, which included Mr. Price. Accordingly, we find ELL is entitled to judgment as a matter of law and that summary judgment was properly granted in its favor on the basis Plaintiffs' exclusive remedy is in workers' compensation. The costs of this appeal are assessed against Appellants.

AFFIRMED

      Plaintiffs also alleged that Chain intentionally exposed Mr. Price to a dangerous worksite. However, Chain was dismissed from this lawsuit on an exception of no cause of action based on a finding that plaintiffs' exclusive remedy against Chain was for workers' compensation.

      Mr. Otts' affidavit was executed on February 1, 2016. He explained in his subsequent deposition that there were some corporation name changes subsequent to the November 2012 accident, but that the name changes did not change the fact that Entergy Corporation owned or controlled more than 50% of the ownership interests in ELL at the time of the November 2012 accident.


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Bobby L. JAMES
    NO. 18-KA-212
    Court of Appeal of Louisiana, Fifth Circuit.
    November 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Anne M. Wallis, Douglas W. Freese, Gretna, Brittany Beckner
    COUNSEL FOR DEFENDANT/APPELLANT, BOBBY L. JAMES, Mary Constance Hanes, New Orleans
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg
   CHEHARDY, C.J.

On appeal, defendant challenges, among other things, the trial court's failure to rule on his motion for post verdict judgment of acquittal and/or arrest of judgment. Finding this error, we vacate defendant's sentences and remand for a ruling on defendant's pro se motion for post verdict judgment of acquittal.

Procedural History

On August 18, 2016, the Jefferson Parish Grand Jury indicted defendant, Bobby L. James, for the second degree murder and attempted armed robbery of Dwayne Baptiste, violations of La. R.S. 14:30.1 and La. R.S. 14:27 and La. R.S. 14:64, respectively. On October 10, 2017, trial commenced before a twelve-person jury, which, after a two-day trial, found defendant guilty as charged on both counts.

On October 27, 2017, defendant filed a pro se motion for post verdict judgment of acquittal and/or arrest of judgment, which was never ruled upon by the trial court. On November 2, 2017, the trial court sentenced defendant to concurrent sentences of life imprisonment for second degree murder and to forty-nine and one-half years at hard labor for attempted armed robbery.

On November 2, 2017, defendant filed a motion for appeal, which was granted by the trial court on the same date. On appeal, defendant challenges the failure of the trial court to rule on his motion for post verdict judgment of acquittal and/or arrest of judgment, and the alleged erroneous ruling of the trial court in granting the State's La. C.E. art. 404(B) motion.

Discussion

La. C.Cr.P. art. 821 provides that a defendant may move for a post verdict judgment of acquittal following the verdict, and that such motion must be made and disposed of prior to sentencing. [Emphasis ours]. The trial court erred in failing to rule on defendant's timely pro se motion for post verdict judgment of acquittal. State v. Christian , 05-635 (La. App. 5 Cir. 2/3/06), 924 So.2d 266, 267.

In State v. Randolph, 409 So.2d 554 (La. 1981), (per curiam )(on rehearing, 1982) the Louisiana Supreme Court dealt with the trial court's failure to rule on a defendant's new trial motion by vacating his sentence and remanding the case to the trial court for a ruling. The high court reserved to the defendant his right to appeal his conviction and sentence in the event of an unfavorable ruling on the motion.

When faced with the lack of a ruling on defense motions for new trial and post verdict judgment of acquittal, this Court has also, without addressing the merits of the defendant's assignments of error, vacated the defendant's sentence and remanded for rulings on the motions, reserving to the defendant his right to appeal his conviction and sentence in the event of unfavorable rulings. See , State v. Aguliar-Benitez, 16-336 (La. App. 5 Cir. 12/7/16), 206 So.3d 472 ; State v. Williams, 11-65 (La. App. 5 Cir. 12/13/11), 81 So.3d 908 ; State v. Munson, 11-0054 (La. App. 5 Cir. 11/15/11), 78 So.3d 290 ; State v. Swanzy, 10-483 (La. App. 5 Cir. 6/14/11), 71 So.3d 392 ; State v. Pettus , 10-742 (La. App. 5 Cir. 5/24/11), 66 So.3d 1192 ; State v. Pearson and Little , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646 ; State v. Robinson , 06-464 (La. App. 5 Cir. 12/12/06), 947 So.2d 783 ; State v. Lewis , 04-1074 (La. App. 5 Cir. 10/6/05), 916 So.2d 294, 301-302, writ denied , 05-2382 (La. 3/31/06), 925 So.2d 1257 ; State v. Davis , 01-1275 (La. App. 5 Cir. 4/10/02), 817 So.2d 171.

In conformity with our recent jurisprudence, we will vacate defendant's sentences and remand to the trial court for a ruling on defendant's motion for post verdict judgment of acquittal, reserving to defendant his right to appeal from his convictions and sentences in the event that the ruling is adverse to defendant. For the foregoing reasons, we vacate defendant's sentences for second degree murder and attempted armed robbery and remand the matter to the trial court to rule on defendant's pro se motion for post verdict judgment of acquittal. We hereby reserve defendant's right to appeal his convictions and sentences, in the event that the ruling on defendant's motion is adverse to him.

SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.

      As we are vacating defendant's sentences, we pretermit discussion of defendant's remaining assigned error and any patent errors, including a potential double jeopardy violation and the trial court's failure to state that defendant's life sentence is to be served at hard labor.