text:
    STATE of Louisiana v. Graylin SURTAIN.
    No. 2009-KK-1835.
    Supreme Court of Louisiana.
    March 16, 2010.

      James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Andrew Pickett, Assistant District Attorneys, for Applicant.

      David Augustus Capasso, for Respondent.
   CLARK, Justice.

| , The issue is whether the district court erred in suppressing crack cocaine and heroin seized from the back pocket of the defendant, Graylin Surtain. Finding that the district court and the court of appeal were improperly constrained in them analysis of the facts by the officers’ characterization of the search, we reverse the lower courts’ suppression of the evidence and remand for further proceedings.

FACTS and PROCEDURAL HISTORY

On May 31, 2007, the New Orleans Police Department operated a two-man surveillance team in the 1300 block of Bien-ville Street in New Orleans. The police surveillance of this area was prompted by recent shootings in that location. Officer Davillier, in plain clothes, sat in an unmarked patrol unit, observing the area. Officer Pratt, in a marked police vehicle, was located a block away.

From his surveillance position, Officer Davillier observed the defendant, Graylin Surtain, or, “Lavender,” as he was known to the officer at that time, standing in front of an abandoned apartment building at 1306 Bienville Street. Officer Davillier saw an individual approach the defendant and give to him an unknown amount of U.S. currency. In response, the defendant opened a clear plastic bag he 12was holding, reached inside, and extracted a small object that the defendant held between his index finger and his thumb. The defendant then placed the small object into the hand of the person who had given him money. Based on his five and a half years of experience as a police officer, nearly all of which was served as a narcotics officer, Officer Davillier believed he had just observed a hand-to-hand narcotics transaction.

Officer Davillier then contacted Officer Pratt, informing his surveillance partner of what he had observed and giving Officer Pratt a physical description of the defendant and the clothing the defendant was wearing. As Officer Pratt approached the area in his marked police unit, Officer Davillier saw the defendant, now sitting on the steps of the abandoned apartment building, become aware of the police unit. The officer observed the defendant immediately close the clear plastic bag with a twisting motion and place the bag into his rear right pocket. As Officer Pratt exited his vehicle, Officer Davillier left his surveillance location to help Officer Pratt. Officer Davillier heard his partner instruct the defendant to join him at the front of his police vehicle. After the defendant complied with this request, Officer Davillier saw Officer Pratt reach into the defendant’s rear pocket and remove the clear plastic bag.

Officer Pratt described the abandoned apartment building, where the defendant was sitting when he drove up, as one of the police department’s “hot spots.” As he approached the defendant, Officer Pratt could see that the clear plastic bag which the defendant was wrapping contained a white substance. At that point, Officer Pratt believed, without a doubt, that the substance inside the bag was an illegal narcotic. In addition, Officer Pratt saw the defendant wrapping the bag in a way that he knew to be consistent with narcotic sales. Upon his approach, Officer Pratt saw the defendant immediately place the wrapped up bag into his right rear pocket.

| .¡Officer Pratt advised the defendant that he was under investigation for illegal drug transactions, informed the defendant of his constitutional rights, and conducted a brief pat down search. When Officer Pratt felt the lump in the defendant’s right rear pocket, he immediately recognized the lump to be the same bag he had just seen the defendant holding. Officer Pratt removed the bag from the defendant’s pocket and saw the same white rock-like substance he had seen before the bag was pocketed, as well as shiny aluminum foils which proved to contain a brown powder substance. At that point, Officer Pratt placed the defendant under arrest and again informed him of his constitutional rights.

Inside the clear plastic bag removed from the defendant’s back pocket were several pieces of what appeared to be crack cocaine and ten foils suspected to contain heroin. Field tests of the substances were positive for crack cocaine and heroin. After he conducted a more extensive search of the defendant, Officer Pratt retrieved $191 cash in small denominations, stacked in a manner the officer found consistent with narcotics dealing.

The state charged the defendant in a two-count bill of information with possession with intent to distribute heroin and cocaine. Prior to trial, the defense filed a motion to suppress the drug evidence seized from the defendant. A hearing was held on the defendant’s suppression motion, at which the testimony of the two officers was adduced.

In addition to describing the circumstances of the surveillance and arrest, Officer Davillier testified that the defendant was not under arrest at the time Officer Pratt reached into his pocket and retrieved the bag containing the drugs. According to Officer Davillier, the basis for the stop that Officer Pratt conducted was only to |4confirm that what the defendant was holding was illegal narcotics.

Officer Pratt agreed, and testified that, based on the information conveyed by his partner, and his own observation of the defendant, he initially approached the defendant to conduct an investigatory stop, not an arrest. Officer Pratt testified that the defendant was not under arrest until after he removed the bag from the defendant’s pocket and confirmed that the defendant was carrying crack cocaine and heroin. Officer Pratt stated that he Mir-andized the defendant prior to his search only in an abundance of caution and not in response to an arrest. Although he later referred to officer safety, Officer Pratt explained his removal of the bag from the defendant’s pocket was based on his knowledge that the defendant had narcotics in his pocket.

Defense counsel, in support of his motion to suppress the cocaine and heroin seized from the defendant, argued that Officer Pratt crossed the line between conducting a pat down search for weapons of the defendant, consistent with an investigatory stop, and a search incident to arrest, based upon probable cause. The defense contended that, if Officer Pratt had actually seen cocaine in the defendant’s bag, and had recognized it as such, the officer would have immediately arrested the defendant. Instead, the officer informed the defendant he was conducting an investigation and reached into the defendant’s pocket, which the defense contended was without legal justification. Defense counsel pointed out that Officer Pratt had not testified that he was fearful the defendant carried a weapon, nor was the point legitimately offered that officer safety was the basis for the search. The defense asserted that the officer’s suspicion that the defendant may have been carrying drugs was not enough to justify removing an object from the defendant’s pocket, although conceding that such a search would have been reasonable as a search incident to |sarrest, had there been probable cause to arrest.

Agreeing with the defense’s reasoning, the district judge granted the motion to suppress. The district judge held that, in the absence of a legitimate fear for officer safety, the police could not conduct a pat down for contraband, even when the officer believed he had seen what he believed to be drugs in the defendant’s possession. The district judge specifically stated she found the officers to be credible, but held the police exceeded their authority with the search.

In a 2-1 decision, the court of appeal denied the state’s writ, affirming the suppression of the evidence. The appellate majority determined that a police officer must fear for his safety or believe that a suspect is armed in order to frisk a suspect during an investigatory stop. Because Officer Pratt did not testify that he was afraid or that he thought the defendant was armed, and did not provide testimony that the bulge he detected in the defendant’s pocket felt like an object whose contour and mass made its identity immediately apparent, the court of appeal majority found the trial court correctly granted the motion to suppress. The dissenting judge believed that a consideration of the totality of the circumstances provided the officers with reasonable suspicion sufficient to justify an investigatory stop, frisk and search of the defendant.

We granted the state’s writ application to review the correctness of the suppression of the drug evidence, and for the following reasons, reverse the rulings of the lower courts.

| .LAW AND DISCUSSION

Both the United States and Louisiana Constitutions prohibit unreasonable searches and seizures, and a warrant based upon probable cause is normally required for such a search to be conducted. State v. Warren, 2005-2248 p. 8 (La.2/22/07), 949 So.2d 1215, 1223. The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. Similarly, the Louisiana Constitution protects a citizen’s right to privacy:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

La. Const. Art. 1, § 5.

An analysis of the application of these constitutional principles in a given factual circumstance must focus on the reasonableness of the governmental action involved. “[T]he reasonableness of any intrusion on an individual’s privacy interests depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” State v. Kelley, 2005-1905 p. 5 (La.7/10/06), 934 So.2d 51, 54, cert. denied, 549 U.S. 1065, 127 S.Ct. 691, 166 L.Ed.2d 536 (2006), citing Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977) (internal quotation marks omitted). “The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a 17citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.” Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968).

A search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993); Warren, 2005-2248 p. 13, 949 So.2d at 1223. A traditional exception to the warrant requirement is a search incident to a lawful arrest based upon probable cause. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973). “Probable cause to arrest exists when the facts and circumstances known to the arresting officer, and of which he has reasonable and trustworthy information, are sufficient to justify a man of ordinary caution in the belief that the accused has committed an offense.” State v. Parker, 2006-0053 p. 2 (La.6/16/06), 931 So.2d 353, 355; State v. Ceaser, 2002-3021 p. 6 (La.10/21/03), 859 So.2d 639, 644.

The reasonableness of the arrest based upon probable cause under the Fourth Amendment extends to the search incidentally conducted. See Robinson, 414 U.S. at 235, 94 S.Ct. at 477 (“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”). Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), explained:

|sWhen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.

Thus, during a search of a citizen conducted incident to an arrest, a searching officer may seize weapons and evidence of crime.

Another such exception to the warrant requirement for a search was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry held that a law enforcement officer, who reasonably concludes in light of his experience that criminal activity may be occurring, or may have occurred, may briefly stop a suspicious person and make reasonable inquiries for the purpose of confirming or dispelling his suspicions. Id., 392 U.S. at 30, 88 S.Ct. at 1884. In addition to making a brief detention, the officer may conduct a limited pat down search for weapons when the officer has a justifiable belief that the individual whom he is investigating is armed. Terry, 392 U.S. 24, 88 S.Ct. at 1881. However, “[t]he purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.... ” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). The scope of this limited protective search was explained in Dickerson:

Rather, a protective search-permitted without a warrant and on the basis of i"easonable suspicion less than probable cause-must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry, supra, at 26, 88 S.Ct., at 1882; ... If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.

Id., 508 U.S. at 373, 113 S.Ct. at 2136.

Courts must engage in a fact-intensive inquiry to determine whether the ^detention of a citizen by police is an investigatory stop or an arrest. Similarly, “[t]he constitutional validity of a warrant-less search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.” Sibron, 392 U.S. at 59, 88 S.Ct. at 1901. In State v. Miller, 2000-1657 p. 2-3 (La.10/26/01), 798 So.2d 947, 949, we discussed the difficulty in making these distinctions:

Given the fact-intensive nature of the inquiry into whether a detention constitutes an investigatory stop, by its nature a brief encounter between the police and a citizen based on reasonable suspicion of criminal activity, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or an arrest, an extended restraint on liberty which requires a greater showing of probable cause, “courts have been unable to develop a bright-line test to determine when police-citizen encounters exceed the bounds of mere Terry stops.” United States v. Ienco, 182 F.3d 517, 524-25 (7th Cir.1999). Because “[t]here is no scientifically precise formula that enables courts to distinguish between valid investigatory stops ... and other detentions that the law deems sufficiently coercive to require probable cause,” United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994), a court inquiring into the nature of a forcible detention must examine “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985) (citations omitted). A court making this assessment “should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.” Id.

The controversy in the present case stems from the circumspection with which the investigating officers described them conduct leading to the recovery of the evidence. Both police officers testified that an investigatory stop of the defendant occurred, and that, until the discovery of the drugs in the defendant’s pocket, no arrest was made. However, a reviewing court is not constrained by a law enforcement officer’s characterization of a detention or search, nor is the court’s analysis of the facts circumscribed by that characterization. State v. Canezaro, 2007-0668 p. 5-6 (La.6/1/07), 957 So.2d 136, 140. By relying solely on the officers’ characterization |inof their actions, and in failing to conduct their own analysis of the facts, both lower courts erred in finding that the scope of the search exceeded that of an investigatory stop and that the motion to suppress should be granted.

Generally speaking, the subjective intentions or beliefs of the police “play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996); State v. Sherman, 2005-0779 p. 14 (La.4/4/06), 931 So.2d 286, 295. We have previously held, that, “... the determination of reasonable suspicion for an investigatory stop, or probable cause for an arrest, does not rest on the officer’s subjective beliefs or attitudes but turns on a completely objective evaluation of all of the circumstances known to the officer at the time of his challenged action.” State v. Pratt, 2008-1819 p. 1 (La.9/4/09), 16 So.3d 1163, 1164 (internal citations omitted); Kelley, 2005-1905 p. 5, 934 So.2d at 54.

Courts cannot abdicate them role to analyze the “totality of the circumstances” presented in a particular case before making a determination whether probable cause to arrest exists. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The decisions articulating the probable cause standard emphasize that “it is a ‘practical, nontechnical conception.’ ” Id., 462 U.S. at 231, 103 S.Ct. at 2328, citing Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). “In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id., citing Brinegar, 338 U.S. at 175, 69 S.Ct. at 1310. Gates further explained:

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical | npeople formulated certain common-sense conclusions about human behavior; jurors as factfin-ders are permitted to do the same-and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Id., 462 U.S. at 231, 103 S.Ct. at 2328, citing United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). Indeed, “probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.” Id., 462 U.S. at 232, 103 S.Ct. at 2329.

In order to determine whether the police officers had probable cause to arrest the defendant under the factual circumstances before us in the present case, we must “examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 800, 157 L.Ed.2d 769 (2003), citing Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In doing so, we are mindful that our determination of whether probable cause existed can be “based on an assessment of the collective knowledge possessed by all of the police involved in the investigation.” Pratt, 2008-1819 p. 1,16 So.3d at 1164. In addition, we note “[i]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification.” Sibron, 392 U.S. at 63, 88 S.Ct. at 1902. However, “it is well established searches incident to arrest conducted immediately before formal arrest are valid if probable cause to arrest existed prior to the search.” Sherman, 2005-0779 p. 9, 931 So.2d at 292; see Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 |12(1980) (“Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”).

Applying these concepts to the present case, we find the facts adduced at the suppression hearing support our determination that the search of the defendant was a valid one incident to an arrest based upon probable cause. A police officer may make a warrantless arrest of a citizen when the person to be arrested has committed an offense in his presence. La. C.Cr.P. art. 213. Officer Davillier observed the defendant receive money in exchange for a small object that the defendant extracted from a clear plastic bag he was holding. Based on his experience, Officer Davillier believed he witnessed a hand-to-hand narcotics transaction. Officer Pratt observed the defendant tying off the clear plastic bag in a manner he knew was consistent with narcotics dealing, and saw that the bag was filled with a white substance which he immediately knew from his experience was crack cocaine. Consequently, the officers had probable cause to arrest the defendant when they approached him, notwithstanding the fact that Officer Pratt informed the defendant that he was only conducting an investigation.

Although we are entitled to review the collective knowledge of the two officers involved in the surveillance and arrest of the defendant in our analysis, we find that Officer Pratt’s testimony alone would have been sufficient to find probable cause to arrest. Officer Pratt believed the white rock-like substance he saw in the clear plastic bag in plain view while he was standing on a public street to be illegal drugs. His belief under the circumstances was reasonable. Therefore, Officer Pratt had probable cause to believe that Surtain, at the very least, possessed illegal substances, and was justified in the warrant-less arrest and subsequent search of the defendant. See State |isu Melton, 412 So.2d 1065, 1068 (La.1982) (search of the defendant’s boot was held to be a valid search incident to arrest where officer saw the defendant, while in a public place, put plastic bag containing a large number of pills in his boot).

Officer Pratt was authorized to conduct a full search of the defendant’s person incident to the arrest for which probable cause existed, even though the defendant had not yet been formally placed under arrest. Officer Pratt’s testimony, that he removed the bag from the defendant’s pocket to recover evidence of a crime, would have been beyond the scope of a valid frisk for weapons permitted under Terry for an investigatory stop. However, the officer’s characterization of the action makes no difference in the final analysis of the legality of the search and does not change the fact that, in this case, probable cause actually existed to support a warrantless arrest of the defendant prior to the search. See Sherman, 2005-0779 p. 16-17, 931 So.2d at 296 (“Although the officers testified that they did not believe they had arrested the defendant when they physically restrained him, that fact does not change the outcome; an officer’s uncommunicated subjective intent is irrelevant to the question of whether an individual has been seized.”).

Since the officers had probable cause to arrest the defendant, Terry is inapplicable and the lower courts erred in analyzing the present facts as an investigatory stop based on the officers’ testimony. See Sherman, 2005-0779 p. 16, 931 So.2d at 296. Instead, the lower courts should have analyzed the totality of the circumstances to determine the legality of the warrant-less search.

CONCLUSION

We find the district court erred in granting the defendant’s motion to suppress the drug evidence seized from him. The police officers had probable cause to arrest the defendant based on their observations of a hand-to-hand narcotics transaction and |14of the drugs themselves. Because there was probable cause to arrest the defendant, the warrantless search of his person was reasonable under the federal and state constitutions as a search incident to an arrest based upon probable cause.

DECREE

For the foregoing reasons, the ruling of the district court granting the defendant’s motion to suppress, and the affirmation of that ruling by the court of appeal, is reversed. The motion to suppress is denied and this matter is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

JOHNSON, J., dissents.

      . Kimball, C.J., did not participate in the deliberation of this opinion.

      . The defendant's given name is sometimes referred to in the record as "Grayland.”

      . The defense also filed a motion for a determination of whether there was probable cause for the arrest.

      . In addition to granting the defendant’s suppression motion, the district judge found no probable cause for the arrest.

      . The district judge stated: “I believe everything he said. Unfortunately, he jumped the gun.”

      . State v. Surtain, 2009-0497 (La.App. 4 Cir. 7/8/09) (unpublished).

      . State v. Surtain, 2009-1835 (La.11/20/09), 25 So.3d 781.

      . Although these observations were originally made concerning the concept of “particularized suspicion,” the Supreme Court found them also applicable to the probable cause standard.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elizabeth Phoebe WILLIAMSON v. Dr. Thomas E. HEBERT.
    No. 2010-CC-0071.
    Supreme Court of Louisiana.
    April 5, 2010.
   PER CURIAM.

Based on the facts of this case, we find defendant failed to establish plaintiff had constructive knowledge of the alleged medical malpractice more than one year prior to the filing of her August 16, 2002 complaint. In Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 511, we explained “a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription, unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice.” Plaintiff in the instant case clearly had some apprehension something was wrong following her surgery, as she consulted two different doctors regarding her condition. However, both of these doctors assured plaintiff her condition would continue to improve, with one of the doctors indicating her symptoms might take two years to resolve. When plaintiffs symptoms failed to improve by August 2002 (two years after the August 3, 2000 surgery), plaintiff performed computer research, and learned for the first time her symptoms may have been caused by malpractice. Plaintiffs August 16, 2002 complaint was filed within one year of her discovery of this alleged malpractice.

Accordingly, the writ is granted. The judgment of the court of appeal is reversed, and the judgment of the district court denying defendant’s exception of prescription is reinstated. The case is remanded to the district court for further proceedings.

       Chiel Justice Kimball not participating in this opinion.


text:
    Ulysses WILLIAMS v. The ORLEANS LEVEE DISTRICT and its Board of Commissioners, Jim Huey, Individually, and in his Capacity as President of The Board of Commissioners of the Orleans Levee District, Patricia Harris, Individually and in her Capacity as a Member of the Board of Commissioners, Gary Benoit, Individually, and in his Capacity as Acting General Counsel for the Orleans Levee District and ABC Insurance Company. Ulysses William v. The Orleans Levee District and Its Board of Commissioners, Jim Huey, Individually, and in his Capacity as President of the Board of Commissioners of the Orleans Levee District, Patricia Harris, Individually, and in her Capacity as a Member of the Board of Commissioners, et. al. Ulysses Williams v. Board of Commissioners, Orleans Levee District.
    No. 2009-C-2637.
    Supreme Court of Louisiana.
    April 5, 2010.
   ORDER

|,WRIT GRANTED. The decision of this Court in Forum, for Equality PAC v. McKeithen, 04-2551 (La.1/19/05), 893 So.2cl 738, is controlling. In Forum for Equality, this Court held that the preclu-sive effect of an earlier judgment could bind a nonparty plaintiff whose interests were adequately represented by parties to the prior litigation. The Court found no error in the district court ruling granting the defendants’ exception of res judicata as to the plaintiffs’ claim that the September 18, 2004 election was not a statewide election because that issue had been previously litigated by different plaintiffs in a case that was now final.

The lower courts’ view that the Forum for Equality case was not applicable in this case, overlooked the critical fact that the preclusive effect of the previous judgment is not being used against a nonparty to the litigation. The respondent is not being precluded from contesting a matter that he has not had full and fair opportunity to litigate. To the contrary, the respondent was a party to the litigation in which it was determined that he was fired for cause. Williams v. Orleans Levee District, Bd. of Com’rs., 00-0297 (La.App. 1 Cir. 3/28/01), 784 So.2d 657. The principle of issue preclusion is being applied in this case as intended, to protect |2against “the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 2171, 171 L.Ed.2d 155 (2008) (citation omitted).

Accordingly, we find the lower courts erred in denying relator’s exception of res judicata insofar 'as it applied to claims raised against it that were resolved by the First Circuit litigation which determined that respondent was lawfully terminated for insubordination. Williams v. Orleans Levee District, Bd. of Com’rs., 00-0297 (La.App. 1 Cir. 3/28/01), 784 So.2d 657. The trial court judgment denying relator’s exception of res jtidicata is reversed, as is the court of appeal decision affirming that ruling, and the case is remanded to the trial court for further proceedings consistent with the views expressed herein.


text:
    STATE of Louisiana v. Titus STEWART, et al.
    No. 2010-KK-0827.
    Supreme Court of Louisiana.
    April 12, 2010.
   In re Stewart, Titus et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 487-923; to the Court of Appeal, Fourth Circuit, No. 2010-K-0462.

Denied.


text:
    Quinn L. DUCOTE and Judy Ducote v. UNION PACIFIC RAILROAD COMPANY, et al.
    No. 2010-CC-0772.
    Supreme Court of Louisiana.
    April 12, 2010.
   In re Louisiana State of; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial Disti’ict Court Div. C, No. 218,842; to the Court of Appeal, Third Circuit, No. CW 10-00352.

Stay denied; writ denied.


text:
    STATE of Louisiana v. Bobby Dean HIGGINBOTHAM.
    No. 2010-KK-0808.
    Supreme Court of Louisiana.
    April 14, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tensas, 6th Judicial District Court Div. B, No. 79152; to the Court of Appeal, Second Circuit, Nos. 45569-KW through 45575-KW, 45578-KW through 45584-KW.

Denied.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Isaac CASTLE.
    No. 2010-KK-0836.
    Supreme Court of Louisiana.
    April 14, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. O, No. 487-940; to the Court of Appeal, Fourth Circuit, No. 2010-K-0270.

Denied.

GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    STATE ex rel. Bobby HAMPTON v. Burl CAIN, Warden.
    No. 2010-KP-0768.
    Supreme Court of Louisiana.
    April 14, 2010.
   In re Hampton, Bobby; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 176-627-C.

Stay denied. Writ denied.


text:
    In re GRAND JURY SUBPOENAS.
    No. 2010-KD-0831.
    Supreme Court of Louisiana.
    April 14, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, Nos. 496-049, 496-050.

Denied.

VICTORY, KNOLL and CLARK, JJ„ would grant.


text:
    Robin BENEDICT, Wife of/and John Benedict v. LOUISIANA STADIUM AND EXPOSITION DISTRICT.
    No. 2010-CC-0798.
    Supreme Court of Louisiana.
    April 14, 2010.
   In re Louisiana Stadium & Exposition District; Louisiana State of; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 2007-6744; to the Court of Appeal, Fourth Circuit, No. 2010-C-0285.

Denied.

CLARK, J., would grant the writ.


text:
    The PORT OF SOUTH LOUISIANA v. TRI-PARISH INDUSTRIES, INC., Mississippi River Bank, Reserve Mooring, Inc. and Associated Terminals.
    No. 2010-CC-0736.
    Supreme Court of Louisiana.
    April 14, 2010.
   In re Reserve Mooring Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. C, No. 57,290; to the Court of Appeal, Fifth Circuit, No. 09-C-857.

Denied.


text:
    STATE of Louisiana v. Christopher Roy BROWN.
    No. 2010-KK-0857.
    Supreme Court of Louisiana.
    April 15, 2010.
   In re State of Louisiana; — Plaintiff; Ap-pljdng For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 298,257; to the Court of Appeal, Third Circuit, No. KW 10-00456.

Writ granted. The trial court’s eviden-tiary ruling is vacated. The State complied with La.Code Crim.P. Art. 768 and the defendant has shown no undue prejudice from the recent disclosure.

JOHNSON, J„ would deny.


text:
    STATE of Louisiana v. Jerry BABINEAUX.
    No. 2010-KK-0355.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Babineaux, Jerry; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 06-3494; to the Court of Appeal, Fifth Circuit, No. 09-KH-937.

Denied.


text:
    STATE of Louisiana v. Clovis R. WILLIAMS, III.
    No. 2009-K-2229.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Williams, Clovis III R.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of East Feliciana, 20th Judicial District Court Div. B, No. 06-CR-387; to the Court of Appeal, First Circuit, No. 2009 KA 0283.

Denied.


text:
    STATE of Louisiana v. QUAC TRAN, Vu V. Ngo and Jesse Quach.
    No. 2009-K-2247.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Quach, Jesse; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 469-621; to the Court of Appeal, Fourth Circuit, No. 2008-RA-1103.

Denied.


text:
    STATE of Louisiana v. Eugene FREDERICKS.
    No. 2009-KO-2249.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Fredricks, Eugene; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. A, No. 06-71; to the Court of Appeal, First Circuit, No. 2009 KA 0005.

Denied.


text:
    STATE of Louisiana v. Michael Cornell TIMMONS.
    No. 2009-KO-2251.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Timmons, Michael Cornell; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 231,646; to the Court of Appeal, Second Circuit, No. 44,702-KA.

Denied.


text:
    STATE of Louisiana v. Clarence JOHNSON.
    No. 2009-K-2263.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Johnson, Clarence; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 469-824; to the Court of Appeal, Fourth Circuit, No. 2009-KA-0259.

Denied.


text:
    STATE of Louisiana v. Brandon A. GRIFFIN.
    No. 2009-KO-2265.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Griffin, Brandon A.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 436355; to the Court of Appeal, First Circuit, No. 2009-KA-0423.

Denied.


text:
    STATE of Louisiana v. Albert Norman PIERRE, Sr.
    No. 2009-KO-2267.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Pierre Sr., Albert Norman; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 503,180; to the Court of Appeal, First Circuit, No. 2009 KA 0454.

Denied.


text:
    STATE of Louisiana v. Ricky Otto KOPPENOL, Jr.
    No. 2009-KO-2279.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Koppenol Jr., Ricky Otto; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 417787-2; to the Court of Appeal, First Circuit, No. 2009 KA 0404.

Denied.


text:
    STATE of Louisiana v. Cordell COLLINS.
    No. 2009-K-2004.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Collins, Cordell; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 05-04-0462; to the Court of Appeal, First Circuit, No. 2009 KA 0050.

Denied.


text:
    STATE of Louisiana v. Travis V. ALLISON.
    No. 2009-KP-1258.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Allison, Travis V.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 75018-FA; to the Court of Appeal, Third Circuit, No. KW 09-00333.

Denied.


text:
    STATE of Louisiana v. Daniel VALLERE.
    No. 2009-KP-1332.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Valiere, Daniel; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. B, No. 03-K-1658-B; to the Court of Appeal, Third Circuit, No. KW 08-01397.

Denied.


text:
    STATE of Louisiana v. Trenita COMADORE.
    No. 2008-K-1639.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Comadore, Trenita; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 468-703; to the Court of Appeal, Fourth Circuit, No. 2007-KA-0976.

Denied.


text:
    STATE of Louisiana v. Daniel SMALLS.
    No. 2009-KK-2695.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Smalls, Daniel; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. 0, No. 489-918; to the Court of Appeal, Fourth Circuit, No. 2009-K-1653.

Granted.


text:
    STATE ex rel. Melvin DRAKE v. STATE of Louisiana.
    No. 2009-KH-1473.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Drake, Melvin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 5-02-0279; to the Court of Appeal, First Circuit, No. 2009 KW 0438.

Writ granted in part; otherwise denied. If it has not already done so, the district court is ordered to supply relator with a copy of the bill of information or grand jury indictment and a copy of the district court minutes relating to his case. State ex rel. Simmons v. State, 93-0275 (La.12/16/94), 647 So.2d 1094. In all other respects, the application is denied. State ex rel. Bernard v. Cr.D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175.


text:
    STATE ex rel. Robert GRAHAM v. STATE of Louisiana.
    No. 2009-KH-1096.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Graham, Robert;' — Plaintiff; Applying for Reconsideration of this Court’s action dated March 12, 2010; Parish of East Carroll, 6th Judicial District Court Div. B, No. 22,984.

Reconsideration denied.


text:
    STATE ex rel. Felton LAGARDE v. STATE of Louisiana.
    No. 2009-KH-1199.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Lagarde, Felton; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 12, 2010; Parish of Jefferson, 24th Judicial District Court Div. G, No. 04-7083; to the Court of Appeal, Fifth Circuit, No. 09-KH-221.

Denied.


text:
    STATE ex rel. Bruce STIPE v. STATE of Louisiana.
    No. 2008-KH-1297.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Stipe, Bruce; — Plaintiff; Applying for Motion to Enforce this Court’s Order dated June 27, 2008; Parish of Orleans, Criminal District Court, Div. E, No. 365-980.

Denied. Moot. The district court has acted.


text:
    STATE ex rel. Roderick Jaron VIDAU v. STATE of Louisiana.
    No. 2009-KH-1174.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Vidau, Roderick Jaron; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div., No. 01-06-0441; to the Court of Appeal, First Circuit, No. 2008 KA 1501.

Denied.


text:
    STATE ex rel. Kenneth DUROSSEAU v. STATE of Louisiana.
    No. 2009-KH-1474.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Durosseau, Kenneth; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. F, Nos. 69,907, 67,907; to the Court of Appeal, Third Circuit, No. KH 09-00331.

Denied.


text:
    STATE ex rel. Jameel A. MALIK v. STATE of Louisiana.
    No. 2009-KH-1475.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Malik, Jameel A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 366-626; to the Court of Appeal, Fourth Circuit, No. 2009-K-0550.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Rufus HENRY v. STATE of Louisiana.
    No. 2009-KH-1476.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Henry, Rufus; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 91K-0046D; to the Court of Appeal, Third Circuit, No. KH 09-00135.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Arthur JACKSON v. STATE of Louisiana.
    No. 2009-KH-1478.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Jackson Jr., Arthur B.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 91-2112; to the Court of Appeal, Fifth Circuit, No. 09-KH-339.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351.


text:
    STATE ex rel. Charles K. WALLACE v. STATE of Louisiana.
    No. 2009-KH-1479.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Wallace, Charles K.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 194255; to the Court of Appeal, First Circuit, No. 2009 KW 0273.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(A).


text:
    STATE ex rel. Vernon E. BRAUD v. STATE of Louisiana.
    No. 2009-KH-1480.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Braud, Vernon E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, Nos. 413688, 413689; to the Court of Appeal, First Circuit, No. 2009 KW 0233.

Denied. State v. McKinney, 406 So.2d 160, 161 (La.1981).


text:
    STATE ex rel. Michael SHOEMAKER v. STATE of Louisiana.
    No. 2009-KH-1510.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Shoemaker, Michael; — -Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, No. 17,990; to the Court of Appeal, First Circuit, No. 2009 KW 0098.

Denied.


text:
    STATE ex rel. Rickey BARNES v. STATE of Louisiana.
    No. 2009-KH-1511.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Barnes, Rickey; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. E, No. 170,796; to the Court of Appeal, Second Circuit, No. 44,-648-KH.

Denied.


text:
    STATE ex rel. Juan R. NOVOA v. STATE of Louisiana.
    No. 2009-KH-1515.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Novoa, Juan R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 405394; to the Court of Appeal, First Circuit, No. 2009 KW 0160.

Denied.


text:
    STATE ex rel. Jimmy SEE v. STATE of Louisiana.
    No. 2009-CI-1516.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re See, Jimmy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 562,226; to the Court of Appeal, First Circuit, No. 2008 CA 1819.

Denied.


text:
    STATE ex rel. Henry HICKSON v. STATE of Louisiana.
    No. 2009-KH-1519.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Hickson, Henry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 08-WCR-222; to the Court of Appeal, First Circuit, No. 2009 CW 0305.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Leon WILLIAMS, Jr. v. STATE of Louisiana.
    No. 2009-KH-1520.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Williams Jr., Leon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 00-2434; to the Court of Appeal, Fifth Circuit, No. 08-WR-862.

Denied.


text:
    STATE ex rel. David MARSHALL v. STATE of Louisiana.
    No. 2009-KH-1531.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Marshall, David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 01-2757; to the Court of Appeal, Fifth Circuit, No. 08-WR-1004.

Denied.


text:
    STATE ex rel. Willie HARDY v. STATE of Louisiana.
    No. 2009-KH-1532.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Hardy, Willie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 276266; to the Court of Appeal, Third Circuit, No. KH 09-00176.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Kenneth DUROSSEAU v. STATE of Louisiana.
    No. 2009-KH-2150.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Durosseau, Kenneth; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. F, No. 67,907; to the Court of Appeal, Third Circuit, Nos. KH 09-00913, KH 09-00790.

Denied.


text:
    Kenneth ARDOIN v. FIRESTONE POLYMERS, LLC.
    No. 2010-C-0245.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Firestone Polymers LLC; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 3, No. 07-09243; to the Court of Appeal, Third Circuit, No. 09-530.

Granted.


text:
    In re APPEAL OF DECISION OF the DISCIPLINARY BOARD NO. 09-PBS-075.
    No. 2009-OB-2783.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Danzell, Jacqueline; — Other; Applying For Appeal of Decision of the Disciplinary Board. Office of the Disciplinary Board, No. 09-PBS-075.

Denied.


text:
    Deborah TATE v. Michael TATE.
    No. 2010-C-0337.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Tate, Michael; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 449-748; to the Court of Appeal, Fifth Circuit, No. 09-CA-591.

Not considered; Not timely filed.


text:
    Billie HUNT v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2009-C-2775.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Hunt, Billie; — Plaintiff; Applying for Reconsideration of this Court’s action dated February 26, 2010; Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 561-771; to the Court of Appeal, First Circuit, No. 2009 CA 0220.

Not considered. See Louisiana Supreme Court Rule IX, Section 6.


text:
    Lenora M. ROBINSON, Gregory A. Johnson v. POINTE COUPEE PARISH POLICE JURY and Its Insurer.
    No. 2009-CC-2717.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Johnson, Gregory A.; Robinson, Lenora M. et al.; — Plaintiffs; Applying for Reconsideration of this Court’s action dated January 29, 2010; Parish of Pointe Coupee, 18th Judicial District Court Div. D, No. 36,075-C; to the Court of Appeal, Second Circuit, No. 45011-CW.

Reconsideration denied.


text:
    Rebecca OWENS, Individually and on Behalf of Micah Owens v. Joshua G. BYERLY, et al.
    No. 2010-C-0117.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Owens, Rebecca et al.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2001-1208; to the Court of Appeal, Third Circuit, No. 09-262.

Denied.

GUIDRY, J., would grant.


text:
    Marion D. BATTALORA and Charles Battalora v. Ronald FICKLIN, as Sheriff of St. Helena Parish, et al.
    No. 2010-C-0194.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Ficklin (Sheriff), Ronald et al.;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of St. Helena, 12th Judicial District Court Div. B, No. 18,213; to the Court of Appeal, First Circuit, No. 2009 CA 0662.

Denied.

VICTORY, J., would grant.

CLARK, J., would grant.


text:
    STREAM FAMILY LIMITED PARTNERSHIP, et al. v. MARATHON OIL CO., et al.
    No. 2010-C-0196.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Gray Stream Investment Trust; Harold Stream Investment Trust; Sandra Stream Investment Trust; Stream Family Ltd. Partnership et al.; Stream III, Harold H.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Cameron, 38th Judicial District Court Div. 0, No. 10-16951; to the Court of Appeal, Third Circuit, No. 09-561.

Denied.


text:
    Randy WILLIAMS v. IESI-LA CORPORATION, et al.
    No. 2010-CC-0309.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Continental Casualty Company; IESI-LA Corporation, et al.; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2004-6166; to the Court of Appeal, Third Circuit, No. CW 09-01129.

Denied.


text:
    William J. NEWTON and Elaine Newton v. Dr. Gene Lewis DONGIEUX, Sr. and Rhonda Barras Dongieux.
    No. 2010-CC-0313.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Dongieux Sr., Dr. Gene Lewis et al.; Dongieux, Rhonda Barras; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 651798; to the Court of Appeal, Fifth Circuit, No. 09-C-1045.

Writ denied. Motion to supplement denied.


text:
    Nancy Davis JUDSON, Secretary/Treasurer Hall’s Mortuary, Inc. v. Hall DAVIS, IV, President Hall’s Mortuary, Inc.
    No. 2010-OC-0316.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Judson, Nancy Davis; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 32,738; to the Court of Appeal, First Circuit, Nos. 2009 CA 1053, 2009 CA 1053.

Denied.


text:
    George Saba ELLIS, Jr., Robert G. Ellis and Joan Ellis Green v. ANPAC LOUISIANA INSURANCE COMPANY.
    No. 2010-CC-0317.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Ellis Jr., George Saba; Ellis, Robert G.; Green, Joan Ellis; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 636-031; to the Court of Appeal, Fifth Circuit, No. 09-C-781.

Denied.


text:
    Angelina CANTUBA v. The AMERICAN BUREAU OF SHIPPING and Mitsubishi Heavy Industries, Ltd.
    No. 2010-C-0320.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Mitsubishi Heavy Industries Ltd.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 94-16056; to the Court of Appeal, Fourth Circuit, No. 2008-CA-0497.

Denied.

VICTORY, J., would grant.


text:
    Sybil RAMSEY, et al. v. JNW CONTRACTOR, INC., et al.
    No. 2010-CC-0331.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Ramsey, Sybil et ah; Smith, Albert; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 08-4120; to the Court of Appeal, Fourth Circuit, No. 2009-C-1346.

Denied.


text:
    Jasmine RICKS v. ODYSSEY HEALTH CARE.
    No. 2010-CC-0333.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Ricks, Jasmine; — Plaintiff; Applying For Supervisory and/or Remedial Writs Office of Worker’s Compensation, District 7, No. 05-1160; to the Court of Appeal, Fifth Circuit, No. 09-C-1099.

Denied.


text:
    Catherine STRATMANN, Wife of/and Jorge A. Menes, III v. John M. PARR.
    No. 2010-CC-0334.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Menes III, Jorge A.; Stratmann, Catherine; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 631-240; to the Court of Appeal, Fifth Circuit, No. 09-C-1053.

Denied.


text:
    KATHY’S COMPUTERS, Angel’s Designs, and Artemis Entertainment, Inc. v. STATE of Louisiana, et al.
    No. 2010-CP-0338.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Dixon, Michael; Angel’s Designs; Artemis Entertainment Inc.; Kathy’s Computers et al.; — Other(s); Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 38,798; to the Court of Appeal, First Circuit, No. 2009 CW 1837.

Denied.


text:
    Jo Kent TAYLOR (Widow of Gary M. Taylor) v. J. Phillip BOUDREAUX, M.D., et al.
    No. 2010-C-0348.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Baton Rouge Radiology Group; Fletcher M.D., James D.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 661,350; to the Court of Appeal, Fifth Circuit, No. 09-CA-266.

Denied.

GUIDRY, J., recused.

CLARK, J., would grant.


text:
    STATE of Louisiana v. J. Norris CARTER 08CR20242, 09CR24197, 08CR7595 Consolidated with Wilford D. Carter, II 09CR8012, 08CR20716.
    No. 2010-KK-0349.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Carter II, Wilford D.; Carter, J. Norris; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. D, Nos. 08-CR-007595, 08-CR-020242, 09-CR-024197, 09-CR-008012, 08-CR-020716; to the Court of Appeal, Third Circuit, No. KW 09-01411.

Denied.


text:
    Patrick D. JOHNSON v. CONAGRA POULTRY COMPANY.
    No. 2010-C-0350.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Johnson, Patrick D.; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District # 02, No. 08-01396; to the Court of Appeal, Third Circuit, No. WCA 09-646.

Denied.

JOHNSON, J., would grant.

KNOLL, J., would grant.


text:
    Sean C. WALKER v. Dr. Jayagopay APPURAO and his Insurer, and Dr. Hamid Hussain and his Insurer.
    No. 2009-CP-2822.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Walker, Sean C.; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 5, 2010; Parish of Washington, 22n<1 Judicial District Court Div. F, No. 96544; to the Court of Appeal, First Circuit, No. 2009 CA 0821.

Reconsideration not considered; see S.Ct. Rule IX, section 6.


text:
    Sherry Coleman TARANTO, Dean Coleman and William S. Coleman, Jr. v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION d/b/a Louisiana Citizens Coastal Plan.
    No. 2010-C-0105.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Louisiana Citizens Property Ins. Corp. d/b/a; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. H, No. 2008-6789; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0413.

Granted.


text:
    Theodore LANGE v. ORLEANS LEVEE DISTRICT. Theodore Lange v. Orleans Levee District.
    No. 2010-C-0140.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Orleans Levee District; — Defendant; Applying For Writ of Certiorari and/or Review Civil Service Commission, Nos. S-12650, S-12479; to the Court of Appeal, First Circuit, Nos. 2009 CA 1255, 2009 CA 1256.

Granted.


text:
    RED STICK STUDIO DEVELOPMENT, L.L.C. v. STATE of Louisiana by and through the DEPARTMENT OF ECONOMIC DEVELOPMENT; State of Louisiana by and through the Division of Administration; & State of Louisiana by and through the Office of Entertainment Industries Development.
    No. 2010-C-0193.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Administration Division of; Economic Development Dept, of; Entertainment Industries Devi. Office of; Louisiana State of; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 572,608; to the Court of Appeal, First Circuit, No. 2009 CA 1347.

Granted.


text:
    Hans WEDE v. NICHE MARKETING USA, LLC, a Louisiana Limited Liability Company and Rodney C. Whitney, Jr.
    No. 2010-C-0243.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Wede, Hans; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 51406; to the Court of Appeal, Fifth Circuit, No. 09-CA-146.

Granted.


text:
    Demetrius WRIGHT, Individually and on Behalf of The Minor Children, Demetrius Wright, Jr., and Demesion Gabrielle Wright v. CANAL INDEMNITY COMPANY, Doug Murphy, Individually and Doing Business as Murphy’s Auto Sales, and Gary R. Murphy.
    No. 2010-CC-0311.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Canal Indemnity Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 644-030; to the Court of Appeal, Fifth Circuit, Nos. 09-C-997, 09-C-1049.

Denied.

VICTORY, J., would grant.

CLARK, J., would grant.


text:
    ESTATE OF Bernice MAYEAUX and Bernice Quaintance Individually and on Behalf of The Estate of Bernice Mayeaux vs. Karolina Glover, XYZ Homeowners Insurance and Goux Enterprises, Inc. d/b/a Pontchartrain Health Care Centre c/w Timothy Wayne Davis o/b/o His Minor Child, Benjamin Anthony Davis, and o/b/o The Estate of Bernice Mayeaux vs. Karolina Glover, XYZ Insurance Company and Goux Enterprises, Inc. d/b/a Pontchartrain Health Care Centre c/w Ann Riles, Individually and on Behalf of The Estate of Bernice Mayeaux v. Karolina GLOVER, Pontchartrain Guest House, Inc. d/b/a Pontchartrain Health Care Centre and The Louisiana Health Care Association.
    No. 2010-C-0312.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Davis, Timothy Wayne et al.; Hor-choff, Toni; Quaintance, Bernice et al; Speirer, Patricia; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, Nos. 2007-16119, 2007-16094, 2007-15746; to the Court of Appeal, First Circuit, Nos. 2008 CA 2031, 2008 CA 2032, 2008 CA 2033.

Denied.


author: COOKS, Judge. COOKS, J.,

text:
    Edward MONTGOMERY v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 09-643.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Dissenting Opinion on Denial of Rehearing April 7, 2010.
    Janice H. Barber, Janice H. Barber Law Corporation, Sulphur, LA, for Plaintiff/Ap-pellee, Edward Montgomery.
    L. Lane Roy, Preis & Roy, Lafayette, LA, for Defendant-Appellant, Lafayette Parish School Board.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   COOKS, Judge.

| T This appeal involves a workers’ compensation dispute over the employer’s alleged improper termination of supplemental earnings benefits. For the following reasons, we affirm and award the claimant additional attorney fees for work done of appeal.

FACTS AND PROCEDURAL HISTORY

On October 27, 2000, Edward Montgomery, while in the course and scope of his employment with the Lafayette Parish School Board as a teaching assistant, was injured while attempting to break up a fight. Immediately following the accident, Mr. Montgomery sought medical treatment and eventually began treating -with Dr. John Cobb, an orthopaedic surgeon, in April of 2001. Dr. Cobb was advised that Montgomery had previously injured his neck in 1989, and a surgical procedure had been performed at the C3-4 level by Dr. Jack Hurst.

Dr. Cobb determined Montgomery suffered from a central disc herniation at the C4-5 level and recommended conservative treatment. When the conservative treatment did not help, Dr. Cobb recommended an anterior cervical discectomy and fusion at the C4-5 level. After reviewing the medical records, the employer’s orthopaedic surgeon, Dr. John Schutte, concurred in the necessity of surgery. In November, 2001, surgery was performed.

Dr. Cobb continued treating Montgomery, and felt the surgery was successful and healing well. Montgomery complained of continued right-sided myofascial pain, which Dr. Cobb related to a moderate degree of stenosis at the C5-6 level. Dr. Cobb recommended a nerve block, which was performed.

In March of 2004, Montgomery was again seen by Dr. Cobb complaining of frequent pain in his neck with radiating pain in both shoulders and arms. He also |2complained of pain and swelling in his right heel. Dr. Cobb recommended an anterior cervical discectomy and fusion at the C5-6 level. Dr. Schutte did not believe these complaints were related to the work injury and did not agree with Dr. Cobb’s surgical recommendation. Dr. Schutte felt Montgomery had some steno-sis at the C5-6 level from bone spurs that pre-existed the 2000 school accident.

Because of the dispute, Dr. Thad Brous-sard was ordered by the workers’ compensation court to perform an independent medical examination concerning the necessity of the surgery. Dr. Broussard concluded surgery would be unlikely to improve Montgomery’s situation. He based his conclusion on the unsatisfactory results from the previous surgery and a lack of radicular findings. He also believed Montgomery was able to return to work. He recommended a Functional Capacity Evaluation (FCE) to determine what type of work Montgomery could perform.

The FCE was conducted on January 4, 2005, which indicated that Montgomery was capable of medium duty work with certain restrictions, a 40 pound limit on knuckle to shoulder lifts, a 30 pound limit on one-handed carries, and no crouching. The FCE therapist concluded Montgomery was incapable of performing his previous job duties with the School Board.

Dr. Cobb treated Montgomery for the last time on January 19, 2005, noting his complaints were compatible with spinal stenosis, and referring Montgomery to Dr. Joseph Gillespie for pain management. Dr. Cobb deferred rendering an opinion on Montgomery’s work status to Dr. Gillespie.

Karen Herron was selected by the School Board as Montgomery’s vocational rehabilitation counselor. She met with Montgomery and discussed his background, education, and work history. In an August 11, 2005 report, which counsel for Montgomery denied receiving, Herron stated there were numerous factors supporting |sa return to work for Montgomery, including his relative youth and good work history. She noted that Montgomery did not have transportation and also had a lack of computer knowledge, which were detriments relative to his return to employment. Herron worked with Montgomery to compose a resume and she advised him to attend a job fair, which he did.

Herron identified several jobs which were sent to Dr. Gillespie for approval. Dr. Gillespie disagreed that Montgomery was capable of medium duty work and limited him to light duty work. On October 3, 2005, Dr. Gillespie gave his approval for two security guard jobs. Relying on this, the School Board terminated Montgomery’s supplemental earnings benefits (SEB) the following day, on October 4, 2005. On November 1, 2005, Dr. Gillespie also gave his approval for a work release driver position.

Montgomery filed a disputed claim for compensation alleging his SEB payments were improperly terminated. He also requested penalties and attorney fees for the improper termination of SEB. After a trial on the matter, the workers’ compensation judge (WCJ) rendered judgment in favor of Montgomery, concluding the School Board wrongfully terminated SEB, finding the jobs relied upon by the employer were not fully within the physical restrictions placed on Montgomery and, therefore, were not suitable jobs. Benefits were ordered to be reinstated to the date of termination. A penalty of $2,000.00 and attorney fees of $6,500.00 were awarded for the improper termination of benefits. The WCJ gave the following written reasons for her judgment:

There are 3 jobs that Ms. Herron located that were approved by Dr. Gillespie and that she verified as still available once approved by the doctor. Those were two light duty security guard positions, approved by Dr. Gillespie on October 3, 2005, and a Work Release Driver position, approved by Dr. Gillespie on November 1, 2005.
|/The evidence reflected that Dr. Cobb had placed limitations on Montgomery’s driving. Ms. Herron also acknowledged that altercations were possible with either the security guard or jail driver transport positions. Montgomery was injured because of an altercation in his position as a teaching assistant. Ms. Herron testified that the possibility of altercations was one reason the School Board would not re-hire Montgomery.
While the School Board superficially met the requirements of Banks, it seems hypocritical to terminate benefits on security guard jobs, where it is more foreseeable that altercations may occur, when it would not re-hire Montgomery because of the possibility of altercations.
Due to the possibility of altercations, the Workers’ Compensation Judge finds that the jobs relied upon are not fully within the physical restrictions of Mr. Montgomery and are not suitable jobs.

The School Board appeals the WCJ’s judgment, asserting it was error for the WCJ to negate jobs approved by the treating physician. Thus, it argues its termination of SEB was not improper.

ANALYSIS

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the WCJ’s findings of fact is the manifest error/clearly wrong standard. Dean v. Southmark Construction, 03-1051 (La.07/06/04), 879 So.2d 112; Alexander v. Pellerin Marble & Granite, 93-1698 (La.01/14/94), 630 So.2d 706. In applying this standard, the court must determine not whether the trier of fact was wrong, but whether the factfinder’s conclusion was a reasonable one. Howard v. Holyfield Construction, Inc., 38,728 (La.App. 2 Cir. 07/14/04), 878 So.2d 875. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Dean, supra; Longoria, v. Brookshire Grocery Co., 37,975 (La.App. 2 Cir. 12/19/03), 862 So.2d 1172, writ denied, 04-157 (La.4/23/04), 870 So.2d 299.

The parties acknowledged that Montgomery was receiving SEB and that the applicable statute regarding his entitlement to these benefits is La. R.S. 23:1221(3).__[a_ As noted by our supreme court in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551, 556, quoting Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993), “the purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.”

With the School Board terminating Montgomery’s SEB, the issue is whether the WCJ erred in finding the School Board failed to prove the availability of a job that satisfies the criteria set forth in La. R.S. 23:1221(3)(c)(i). In Banks, 696 So.2d at 557, the supreme court held an employer may discharge its burden of proving job availability by establishing, at a minimum, the following:

(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

The Banks court further held that a “suitable job” was a position that claimant was not only physically capable of performing, but one that also fell within the limits of claimant’s age, experience, and education, unless the employer or potential employer was willing to provide any additional necessary training or education. Id.; see also Lacaze v. Alliance Compressors, 03-1566 (La.App. 3 Cir. 04/14/04), 870 So.2d 1150; City of Eunice v. Carrier, 02-1132 (La.App. 3 Cir. 02/19/03), 844 So.2d 900, writ denied, 03-813 (La.05/09/03), 843 So.2d 409. The courts have clearly provided that this analysis is “necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that the workers’ compensation law is to be construed liberally in favor of finding coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989); see also Banks, 696 So.2d 551 and Manpower Temp. Servs. v. Lemoine, 99-636 (La.App. 3 Cir. 10/20/99), 747 So.2d 153.

The School Board argues the law imposes no burden on proving an available job has “no possibility of altercations,” absent a physician or FCE recommendation for such and, therefore, the judgment should be reversed. Essentially, the School Board contends the determination of the suitability and availability of a job is purely a medical determination, and once it is approved by a physician, that inquiry closes. We disagree.

The court in Banks stated it is up to the court to determine which jobs are suitable and available to a claimant for purposes of SEB. As Montgomery notes, the Banks court listed the criteria set forth “as a minimum,” implying that courts can consider other factors in determining whether termination of SEB was appropriate. This court in Manpower, 747 So.2d 153, affirmed a WCJ’s decision to reject eleven jobs provided by the vocational rehabilitation counselor which were deemed within the claimant’s physical restrictions and geographical area. We found the WCJ did not commit manifest error in holding that none of the jobs, even those approved by the physician, were truly “suitable” or “available” to the claimant. Thus, this court has determined that it is within the province of the WCJ to negate jobs that are physician approved if the record supports a finding that the jobs are not truly “suitable” or “available” for the claimant.

The WCJ reviewed the medical records, restrictions and testimony and reports of Ms. Herron, the vocational rehabilitation counselor. The WCJ noted, while the general nature of the security guard positions were arguably within the physical limitations set forth by all the doctors, the nature of the job exposed the claimant to a reasonable possibility of physical altercations, which even the School Board itself 17realized was beyond his physical abilities. Ms. Herron testified it was her understanding that one of the criteria for the School Board’s decision that Montgomery could not return to his previous position was the possibility of altercations. Ms. Herron testified a security guard position could have a distinct possibility of altercations. She could not determine if either of the two security guard positions were particularly at risk for altercations, as her testimony indicates she never contacted either of the prospective employers of the security job positions to verify job availability, or to determine job specifics.

Ms. Herron also acknowledged the two security guard positions required completion of a State mandated training course; however, she was unaware if the training course required any physical component that Mr. Montgomery was unable to complete. Considering all the physicians placed some physical restrictions on Montgomery, it was unreasonable for Ms. Her-ron not to investigate further to determine exactly what physical requirements the mandated training course required.

Ms. Herron also noted both security guard positions appeared to require at least some shifts at night. She testified she did not discuss with Mr. Montgomery how he could get to any night shifts without any available transportation. She acknowledged he would likely use public transportation to go to and from work, and that would present problems if he worked at night.

After a through review of the record, we cannot say the WCJ erred in finding the School Board did not establish the two security guard positions were “suitable” or “available” under the Banks standard. Accordingly, the School Board overstepped its rights by unilaterally terminating Mr. Montgomery’s SEB.

We also find any discussion of the work release driver position was not germane to the issue of whether the School Board improperly terminated benefits on IsOctober 4, 2005. Implicit in the “availability” requirement of Banks is physician approval. See East-Gatrett v. Greyhound, Bus Lines, 99-421 (La.App. 3 Cir. 11/3/99), 746 So.2d 715. Thus, since the physician did not approve the Work Release Driver job prior to termination of Montgomery’s SEB, this job could not be deemed “available” to Montgomery at the time the decision was made to terminate SEB. Thus, this job cannot be considered when discussing whether the School Board’s decision to terminate benefits on October 4, 2005 fulfilled the Banks criteria. See Chelette v. Rivewood International USA, Inc., 02-1347 (La.App. 3 Cir. 4/30/03), 843 So.2d 1245, rev’d in part on other grounds, 03-1483 (La.10/17/03), 858 So.2d 412.

Mr. Montgomery answered the School Board’s appeal and requested we award him additional attorney fees for work performed by his attorney on appeal. As he has successfully defended the School Board’s appeal, we award additional attorney fees in the amount of $3,500.00.

DECREE

For the above reasons, the judgment of the Office of Workers’ Compensation is affirmed. An additional $3,500.00 in attorney fees is awarded to Mr. Montgomery for the work necessitated by this appeal. All costs are assessed to the Lafayette Parish School Board.

AFFIRMED, AS AMENDED.

ON REHEARING

Rehearing denied.

COOKS, J.,

dissenting.

11The School Board filed an application for rehearing, asserting our original opinion failed to address its assignment of error that the trial court erred in finding it arbitrary and capricious in terminating Mr. Montgomery’s benefits. I would vote to grant rehearing solely for the limited purpose of clarifying our original opinion, wherein we specifically noted the School Board’s arbitrary and capricious acts in wrongfully terminating benefits. We noted, among other things, that Ms. Herron, Mr. Montgomery’s vocational rehabilitation counselor, failed to contact the two security jobs in question to verify availability. We also stated it was unreasonable for Ms. Herron not to further investigate exactly what physical requirements the State mandated training courses required. Further, Ms. Herron acknowledged she failed to discuss transportation issues with Mr. Montgomery, which the workers’ compensation judge expressly believed was an issue of concern. For these reasons, we found the judgment of the Office of Workers’ Compensation was correct in all aspects, including the awards of penalties and attorney fees. I would decline to award counsel for Mr. Montgomery’s request for additional attorney fees for having to respond to this Rehearing Application.

      . We also note, concerning the work release driver position, Dr. Cobb previously restricted Mr. Montgomery's driving. In Manpower, 747 So.2d 153, the court held two jobs, which were physician approved, were not suitable because the job duties exceeded previous lifting restrictions issued by one of the claimant's physicians. The same situation applies here. The Work Release Driver position, which primarily requires driving, is in violation of Dr. Cobb's driving restrictions.


author: KUHN, J. McDONALD, J.,

text:
    David J. MEINERS v. ST. TAMMANY FIRE PROTECTION DISTRICT # 4 BOARD OF COMMISSIONERS.
    No. 2009 CA 0435.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 6, 2010.
    Dissenting Opinion of Judge McDonald, Jan. 15, 2010.
    Rehearing Denied March 23, 2010.

      William G. Meiners, Mandeville, Louisiana, for Appellant, David J. Meiners.
    Hector R. Lopez, Covington, Louisiana, for Appellees, St. Tammany Parish Fire Protection District # 4, Board of Commissioners of St. Tammany Parish Fire Protection District # 4, and the Civil Service Board for St. Tammany Parish Fire Protection District # 4.
    Before PARRO, KUHN, and McDonald, jj.
   KUHN, J.

|2David J. Meiners, a probational fire equipment operator in the classified civil service of the St. Tammany Parish Fire Protection District No. 4 (“the District”), appeals an August 7, 2008 judgment of the Twenty-Second Judicial District Court, which affirmed a ruling of the Civil Service Board for the District (“the Civil Service Board”) that upheld Meiners’ termination by the District. Finding no jurisdictional basis for this court to consider Meiners’ appeal to this court, we dismiss it.

I. PROCEDURAL AND FACTUAL BACKGROUND

Prior to March 18, 1999, Meiners was a classified district fire chief employed by the District. Effective March 18, 1999, he resigned from his employment.

By letter dated May 8,1999, the District offered to re-employ Meiners as a probational fire equipment operator, subject to the condition, among others, that he obtain an Emergency Medical Technicians (“EMT”) certification within the first six months of his re-employment. Thomas W. Druen, Chairman of the District’s Board of Commissioners (“the Board of Commissioners”), signed the letter, and Meiners signed as “Accepted” the May 3, 1999 letter, which also stated that he agreed that “failure on [his] part to fulfill any of these conditions for re-employment will result in [his] immediate termination.”

On May 10, 1999, the District sent a personnel action form to the Board, advising that Meiners had been re-employed, effective May 6, 1999, by the District as a probational fire equipment operator. The form further stated, “Appointing Authority has agreed to re-hire employee under attached, signed, mutual agreement. 12-month working test period begins.”

IsDuring a November 9, 1999 meeting, the Board of Commissioners addressed Meiners’ failure to pass the EMT national registry exam and held an executive session to discuss Meiners’ employment contract. After returning to a regular session, Chairman Druen stated that “the contract stands as is and asked [Chief Earl B. Gorrodona] to process the proper paperwork.” Meiners was terminated effective November 9, 1999; the personnel action form signed by Chief Gorrodona stated, “Employee failed to meet the terms of the mutual agreement by failure to obtain EMT-Basic certification within the stated time.” By letter dated November 21, 1999, Meiners appealed his termination to the Civil Sendee Board pursuant to La. R.S. 33:2555, urging “he was not given a fair opportunity to prove his ability in the position.”

Following a December 29, 1999 hearing on the matter, the Civil Service Board upheld Meiners’ termination. The Civil Service Board found that: 1) Meiners’ reemployment contract with the District required him to obtain an EMT certification within the first six months of re-employment; 2) Meiners had ample time and opportunity to obtain the required EMT certification; 3) Meiners failed to obtain the required EMT certification in the requisite time period, and this prevented him from discharging his duties effectively; 4) the evidence and testimony presented at the hearing established that the terms of the re-employment contract between Mein-ers and the District were not met by Mein-ers; and 5) the Board of Commissioners acted in good faith and for cause in terminating Meiners’ employment. Meiners appealed the ruling of the Civil Service Board to the district court, which affirmed the Civil Service Board’s ruling by judgment dated January 2, 2001.

14Meiners then sought review by this court, which determined that the record did not establish whether the parish governing authority or the Board of Commissioners was the governing authority of the District. This court reversed the district court’s judgment and remanded to the District for further proceedings. Meiners v. St. Tammany Parish Fire Protection District # 4 Board of Commissioners, 01-1764, p. 8 (La.App. 1st Cir.6/21/02), 826 So.2d 1200 (unpublished decision). The Civil Service Board ultimately held a hearing on April 18, 2006, and May 16, 2006, to take evidence on the issue of which entity was the governing authority, but it did not render another ruling on the merits of Meiners’ termination. Thereafter, Mein-ers filed a rule to show cause in the district court, urging that his termination was invalid, and seeking immediate reinstatement, interest, and attorney’s fees on the basis that the matter was “ripe for decision” by the court pursuant to La. R.S. 33:2561 E, governing appeals by employees.

The District, the Board of Commissioners, and the Civil Service Board filed exceptions, raising the objections of no right of action, no cause of action, prescription, improper cumulation of actions, and lack of jurisdiction. In a September 12, 2007 judgment, the district court remanded the matter to the Civil Service Board, directing that it “issue a decision ... as to who was the appointing authority for [the District] on November 9, 1999, the date of plaintiffs termination.” On October 1, 2007, the Civil Service Board determined that “on November 9, 1999 the appointing authority was the Board of Commissioners.” Meiners then filed a motion to reset his rule and defendants’ exceptions. By judgment dated August 7, 152008, the district court affirmed Meiners’ termination, denied defendants’ exceptions of prescription and no cause of action, and ordered that a motion in limine filed by defendants was moot. The district court granted defendants’ exception of improper cu-mulation, and it also granted defendants’ exception of lack of jurisdiction “in so far as this Court’s scope of review is confined by LA RS 33:2561(E).” Meiners has appealed, and the defendants have filed an answer to the appeal, with the parties challenging the respective portions of the district court’s judgment adverse to each of them.

II. ANALYSIS

This court has a duty to examine subject matter jurisdiction on its own motion, even when the issue is not raised by the litigants. Monterrey Center, LLC v. Education Partners, Inc., 08-0734, p, 5 (La.App. 1st Cir.12/23/08), 5 So.3d 225, 228-29. A district court is vested with jurisdiction to review administrative action as provided by law. See La. Const, art. V, § 16(B); Loop, Inc. v. Collector of Revenue, 523 So.2d 201, 203 (La.1987). Consequently, a litigant seeking judicial review of administrative action in a district court must establish that there is a statute which grants subject matter jurisdiction to that court. Id. at 203.

Louisiana Revised Statutes 33:2531-2568, containing Fire and Police Civil Service Law for Small Municipalities and for Parishes and Fire Protection Districts, are applicable in the instant case. See also La. Const, art. X, §§ 16-20. In particular, La. R.S. 33:2561 is the only statute authorizing or addressing judicial review in matters of this nature, and it provides, in pertinent part, as follows:

Any employee under classified service and any appointing authority may appeal from any decision of the board or from any action taken by the board under the provisions of this Part which is prejudicial to the employee or appointing authority. This appeal shall |Bbe taken by serving the board, within thirty days after entry of its decision, a written notice of appeal stating the grounds thereof and demanding that a certified transcript of the record or written findings of fact and all papers on file in the office of the board affecting or relating to such decisions be filed with the designated court. The board shall, within ten days after the filing of the notice of appeal, make, certify, and file the complete transcript with the designated coux-t, and that court thereupon shall proceed to hear and determine the appeal in a summary manner. (Emphasis added.)
La. R.S.33:2561 E.

While this statute authorizes judicial review in “the designated court,” the legislature has failed to designate a particular court to hear such appeals. See Albert v. Parish of Rapides, 256 La. 566, 237 So.2d 380 (1970), overruled in pari on other grounds by Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971). Accordingly, neither the Twenty-Second Judicial District Court nor this court is “the designated court” within the meaning of this statute, and neither court has authority to review this matter.

However, even in the absence of statutory authority, if a constitutionally protected interest is abridged, access to the court cannot be denied. See McGehee v. City/Parish of East Baton Rouge, 00-1058, pp. 5-6 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 261-62. Meiners, as a probational employee, has no property interest in retaining his position. See St. Romain v. State of Louisiana through the Dep’t of Wildlife and Fisheries, 03-0291 (La.App. 1st Cir.11/12/03), 863 So.2d 577, 583, writ denied, 04-0096 (La.3/26/04), 871 So.2d 348. Without such a property right at issue, there is no basis for this court to exercise its appellate jurisdiction.

|7III. CONCLUSION

Because we find this court lacks appellate jurisdiction, we dismiss Meiners’ appeal at his cost.

APPEAL DISMISSED.

McDONALD, J. dissents and will assign reasons.

McDONALD, J.,

dissenting:

|tI am confounded by the majority opinion and cannot reconcile it with my understanding of the law. It is true that in Albert v. Parish of Rapides, 256 La. 566, 237 So.2d 380 (La.1970), the supreme court held that the district court lacked jurisdiction to review a decision of the Rapides Parish Fire Civil Service Board pursuant to La. R.S. 33:2561. The court found that the district court could not hear the appeal because such an appeal is not included in the specific categories designated in Article 7, Section 36 of the Constitution of 1921. However, that case was overruled by Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (La.1971).

In Bowen, the court found that the constitutional grant of access to the courts required that the courts must be open to every person for adequate remedy by due process of law. It noted that:

[Generally, the availability of judicial review of administrative hearings is necessary to the validity of such proceedings under our legal system and our traditions. Even in the face of statutory attempts to preclude review of administrative proceedings the United States Supreme Court has determined judicial review to be essential. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). Moreover, that court appears to act under a presumption of reviewability which yields only to affirmative legislative intent in favor of unreviewability when such intent is based upon reasonable grounds or to special reason for unreviewability because of the peculiar subject matter or 12circumstances. (citations omitted).... Thus, with the presumption that all administrative determinations are reviewable by the court and a conviction that judicial review may even be necessary in the face of legislative attempt to deny it, in the absence of constitutional restrictions we must not only favor but preserve the right of review.

This presumption of the constitutional right to judicial review of decisions of administrative bodies has consistently been recognized in Louisiana law. See Loop, Inc. v. Collector of Revenue, State of Louisiana, 523 So.2d 201 (La.1987), rehearing granted, 10/15/87, on rehearing, 4/11/88, and cases cited therein; Wooley v. State Farm Fire and Casualty Insurance Co., 04-0882 (La.1/19/05), 893 So.2d 746. Moreover, the problem of a legislative grant of appellate jurisdiction to the district courts that was the basis for the Albert decision no longer exists since the enactment of the 1974 Constitution, which specifically provides for a legislative grant of appellate jurisdiction to district courts. La. Const, of 1974, Art. V § 16(B).

The majority’s conclusion that LSA-R.S. 33:2561 E does not grant the right of an appeal to the district court, in my opinion, is unsupported by any rule of statutory construction, without even considering the jurisprudence that demands a contrary result, or the constitutional issue. I am reminded, however, of Justice Tate’s jurisprudential observation when considering whether, and finding, that the district court had the authority to issue an injunction pending judicial review of an action by the Public Service Commission in a non-rate case. “This fundamental attribute of a government of law (rather than of the possible whim of administrative officials) should not, it seems to us, be deemed negated by an ambiguous provision as to a particular narrow issue, at least in the absence of express wording requiring such construction.” Central Louisiana Telephone Co., Inc. v. La. Public Service Commission, 262 La. 819, 827, 264 So.2d 905, 908 (La.1972). Any ambiguity in the statute under consideration should thus be resolved in favor of judicial review and not against it. There is no ambiguity in the legislature’s intention to provide a right of review.

| sIt is true that the statute states that the record be filed with “the designated court.” However, I do not think that the fact that the legislature did not specifically identify “the designated court” means there is no statutory authority for the district court to review the matter. Obviously, the purpose of the statute is to establish the right of an appeal. I do not think it is beyond the capabilities or function of the judiciary to interpret the statute so as to give effect to the legislative intent.

Title 33 of the revised statutes deals with municipalities and parishes. It creates numerous districts, e.g. water and sewerage districts, boards and commissions. Title 33, chapter 4 provides for Fire and Police Departments. Title 33, chapter 5 provides for Civil Service. Part I of chapter 5 applies to civil service for cities of over 100,000 population; Part II applies to fire and police civil service law for municipalities between 13,000 and 250,-000; Part III applies to fire and police civil service for small municipalities and for parishes and fire protection districts.

The legislature puts forward, in some detail, how these boards and commissions will operate and what functions they are to perform. These include provisions regarding establishment and maintenance of employment lists, promotional testing, reinstatement and reemployment rights, to name a few. One legislative purpose is to protect government employees from discriminatory and prejudicial actions in the workplace for reasons other than the capacity and fitness to hold the position. This legislative purpose is applicable to all pei’sons serving in fire and police departments. Both individuals and the appointing authorities have the right to appeal decisions of the Boards in Parts I and II. I do not think the legislature intended, nor would any governmental purpose be served, by creating different substantive rights dependant on the size of the community in which one lives.

|4In addition to the statutory right of judicial review by the district court, and appeal of the district court decision to this court, I believe Mr. Meiners has a constitutional right of appeal. I do not find the analysis put forth in McGehee v. City/Parish of East Baton Rouge, 00-1058 (La.App. 1 Cir. 9/12/01), 809 So.2d 258 persuasive. Neither would I rely on St. Romain v. State, 03-0291 (La.App. 1 Cir. 11/12/03), 863 So.2d 577, because the possession of a property right of a probational employee is not dispositive here. It is fundamental to our constitutional guarantees “that every person shall have an adequate remedy in the courts and shall be entitled to judicial protection against unlawful acts.” Central La. Tel. Co., supra. My reading of the facts and law presented in this case indicates that the statute applicable to reemployment of classified employees, LSA-R.S. 33:2550 D, was not followed here.

The constitutional right of individuals of access to the courts, provided in Art. 1, § 22 is clearly implicated in this case, and the jurisprudence as cited in Bowen, supra requires judicial review. I recognize that the constitutional guarantee of access to courts and a remedy for injuries does not warrant a remedy for every single injury, as stated by the supreme court in Whitnell v. Silverman, 95-0112 (La.12/6/96), 686 So.2d 23, 31. In Whitnell, the supreme court went on to note that it was not the intent of the Constitutional Convention to limit the legislature’s ability to restrict causes of action or to bar the legislature from creating various areas of statutory immunity from suit. Similarly, the legislature may establish statutes of limitations, which “essentially makes a legislative determination that after a certain period of time, no cause of action can arise.” Id. However, the cause of action available to persons aggrieved by a decision of fire and police civil service boards has been legislatively established here, not restricted.

|BIt is also well-established that the constitutional guarantee of access to the courts is not limited to deprivations of fundamental constitutional rights only. See State in Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719, for an extensive discussion of constitutional law, and especially separation of powers and inherent powers of the judiciary. The supreme court states that “Traditionally, ‘it has long been recognized that due process necessitates ... that all persons are entitled to their ‘day in court,’ ’ ” citing Billman v. Summit, 464 So.2d 382, 384 (La.App. 1 Cir.1985), and notes that this “guarantee of access to the courts is in reality a guarantee of due process.” State in Interest of A.C., 643 So.2d at 728.

This court has consistently affirmed that a “party to an administrative proceeding has a constitutional right of access to the judicial branch of state government. La. Const, of 1974, art. I §§ 2 and 22. This right exists without statutory authority.” P & G Retailers, Inc. v. Wright, 590 So.2d 1272, 1277 (La.App. 1 Cir.1991), citing Tanner v. City of Baton Rouge, 422 So.2d 1263 (La.App. 1 Cir.1982), unit denied, 429 So.2d 128 (La.1983). I find it untenable, therefore, that this opinion proposes to do just that. I believe the law establishes that Mr. Meiners has a constitutional and statutory right to judicial review. Therefore, I respectfully dissent.

      . The Civil Service Board's previous decision, which had affirmed Meiners' termination by the Board of Commissioners, was not vacated by this court's June 21, 2002 decision.