author: PER CURIAM:

text:
    STATE of Louisiana v. Rose JOHNSON
    No. 2018-KK-1370
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL, DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. The district court erred in granting defendant's motion to suppress her statement based on her diminished mental state in the absence of any showing of coercive police activity. As this court previously noted, "our current jurisprudence subscribes as a matter of state law to the rule of Colorado v. Connelly , 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986), that "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." State v. Thornton , 12-0095 (La. 3/30/12) (per curiam), 83 So.3d 1024. "Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law." Connelly , 479 U.S. at 164, 107 S.Ct. at 520. In the present case, not only was there no evidence of coercive police conduct, but the district court expressly found that the officers' conduct was proper. Therefore, we grant the State's application to vacate the district court's ruling, which granted defendant's motion to suppress, and remand for further proceedings consistent with the views expressed here.

VACATED AND REMANDED


source: Caselaw Access Project

license: Public Domain

text:
    STATE EX REL. Cody WALLER v. STATE of Louisiana
    No. 2017-KH-1768
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF WEBSTER
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant.


text:
    STATE EX REL. Lester SCOTT v. STATE of Louisiana
    No. 2017-KH-1732
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF WEBSTER
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated at least three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Charles RODRIGUEZ, Jr. v. STATE of Louisiana
    No. 2017-KH-1725
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   PER CURIAM:

Denied. Relator does not identify illegal terms in his sentences, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, his sentencing claim is not cognizable on collateral review. See La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Weimer, J., recused.


text:
    STATE EX REL. Kikyator JONES v. STATE of Louisiana
    No. 2017-KH-1723
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Timothy RANDAZZO v. STATE of Louisiana
    No. 2017-KH-1718
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Ira Jerome ROSS v. STATE of Louisiana
    No. 2017-KH-1713
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Crichton, J., recused.


text:
    STATE EX REL. Rufus HAMPTON, III v. STATE of Louisiana
    No. 2017-KH-1676
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF WEBSTER
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Crichton, J., recused.


text:
    STATE EX REL. Justin SAVOY v. STATE of Louisiana
    No. 2017-KH-1647
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review.

The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Lawrence Ray PITTMAN, Sr. v. STATE of Louisiana
    No. 2017-KH-1646
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated several applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Clifton DAIGLE
    No. 2017-KP-1256
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant in part.


text:
    STATE of Louisiana v. Jenny Leeper BEENE
    No. 2017-KP-1102
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to show that she received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated her application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless she can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Crichton, J., recused.


text:
    STATE of Louisiana v. Christopher ALEXANDER
    No. 2018-KK-1772
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted in part. The district court erred in denying defendant's motion to suppress his statement. Defendant made his statement after a detective assured him anything he said would stay in the interrogation room and that no one would need to know what he told the detective. The detective's assurance amounted to a false promise of confidentiality that subverted the Miranda warning that anything defendant said will be used against him in a court of law, and thus rendered defendant's statement involuntary. See Hopkins v. Cockrell , 325 F.3d 579, 584-585 (5th Cir. 2003) ("An officer cannot read the defendant his Miranda warnings and then turn around and tell him that despite those warnings, what the defendant tells the officer will be confidential and still use the resultant confession against the defendant."). Accordingly, we vacate the district court's ruling denying defendant's motion to suppress his statement, and remand for further proceedings consistent with the views expressed herein.

VACATED AND REMANDED

Weimer, J., would deny.

Guidry, J., would deny.

Clark, J., would deny.


author: GENOVESE, J., would deny the writ.

text:
    STATE of Louisiana v. Tarik MCMASTERS
    NO. 2018-KK-0784
    Supreme Court of Louisiana.
    June 5, 2018
    Writ granted. The trial court's grant of defendant's motion to suppress is reversed for the reasons set forth in Judge Ledet's dissent.
   GENOVESE, J., would deny the writ.


text:
    Robert L. RICHARD v. DOW CHEMICAL COMPANY, et al.
    NO. 2018-CC-0891
    Supreme Court of Louisiana.
    June 5, 2018
    Stay denied; writ denied.


author: WEIMER, J., would grant.

text:
    STATE of Louisiana v. Daryl J. LEESON
    NO. 2018-KK-0831
    Supreme Court of Louisiana.
    June 2, 2018
    Denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.


author: CLARK, J., would grant.

text:
    Will HARRIS, Jr. v. AMERICAN HOME ASSURANCE COMPANY, Healthcare Casualty Insurance Limited, Aggreko, LLC and Touro Infirmary
    NO. 2018-C-0589
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.
   CLARK, J., would grant.

CRICHTON, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Clifton RAYE
    NO. 2017-KO-1966
    Supreme Court of Louisiana.
    Supreme Court of Louisiana June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Evelyn CLANTON
    NO. 2018-KK-0967
    Supreme Court of Louisiana.
    June 13, 2018
    Stay denied, writ denied.


text:
    STATE of Louisiana v. Taher M. TOOM
    NO. 2018-KK-0963
    Supreme Court of Louisiana.
    June 13, 2018
    Denied.


text:
    STATE of Louisiana IN the INTEREST OF Q.S.
    NO. 2018-CK-0953
    Supreme Court of Louisiana.
    June 12, 2018
    Denied.


author: JOHNSON, C.J., would grant.

text:
    Tyrone PERRY v. 24TH JUDICIAL DISTRICT COURT (City of Gretna Police Dept.)
    NO. 2017-OK-1854
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Earl Keith HARRIS
    NO. 2018-KO-0160
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Deshon BATES
    State of Louisiana v. Alisha White
    State of Louisiana v. Wayne Renard
    NO. 2018-KK-0662
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Jontreal FISHER
    NO. 2018-KK-0608
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Rockey A. BURNHAM
    NO. 2017-KO-0664
    Supreme Court of Louisiana.
    June 15, 2018
    Not considered. See La. S.Ct. Rule IX § 6.
   HUGHES, J., would grant.


text:
    Edwin Ray PARKER and Kenneth Brad Ott v. The SENATE OF THE STATE of Louisiana, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, and the State of Louisiana
    NO. 2018-C-0546
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    In the MATTER OF the SUCCESSION OF Mark Howard BUHLER
    NO. 2018-C-0478
    Supreme Court of Louisiana.
    June 15, 2018
    Reconsideration denied.


text:
    STATE of Louisiana v. Deondrick CLARK
    NO. 2017-CK-1588
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE IN the INTEREST OF E.D.
    NO. 2018-CJ-0598
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   WEIMER, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Calvin C. FREEMAN
    NO. 2018-KO-0221
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    Mary Jane PASTOREK v. FORTRESS INSURANCE COMPANY, et al.
    NO. 2018-CC-0601
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Darnell JOHNSON
    NO. 2018-KK-0613
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Stephanie HUGHES v. David S. SMITH, et al.
    NO. 2018-CC-0692
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. William J. BROWN
    NO. 2018-K-0010
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Jonathan ISAAC
    NO. 2017-KO-2106
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Evangelisto RAMOS
    NO. 2017-KO-2133
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    MERRICK HEAVY MACHINE, LLC v. VERMILION PARISH POLICE JURY, et al.
    NO. 2018-CC-0807
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Travis HENDERSON
    NO. 2017-KO-2167
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    William and Imelda WILHITE v. Heath Brian VEILLON
    NO. 2018-CC-0399
    Supreme Court of Louisiana.
    June 15, 2018
    Reconsideration denied.


text:
    STATE of Louisiana v. George D. LOWDINS
    NO. 2017-KO-1923
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Robert Jack BOUDREAUX
    NO. 2018-KK-0501
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
    HUGHES, J., would grant in part to allow for an in camera inspection.
    CRICHTON, J., would grant in part to allow for an in camera inspection.
    GENOVESE, J., would grant in part to allow for an in camera inspection.


text:
    STATE of Louisiana v. Marcus HARRIS
    NO. 2017-KO-1968
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    Terry R. SIMON, et al. v. Arvin J. BARTLETT, et al.
    NO. 2018-CC-0602
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   WEIMER, J., would grant.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-390839
    NO. 2018-BA-0837
    Supreme Court of Louisiana.
    June 15, 2018
    Denied. See La. S.Ct. Rule XVII § 4(C).


text:
    STATE of Louisiana v. Terrance SHELTON
    NO. 2018-KK-0607
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    Holli Henry MERCER v. Tommy O. MERCER
    NO. 2018-CJ-0808
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Wilbert LEGER, Jr. a/k/a Wilbert Leger
    NO. 2018-KK-0936
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    IN RE: John Morris DUNN III
    NO. 2018-B-0340
    Supreme Court of Louisiana.
    June 15, 2018
    Rehearing denied.


text:
    STATE of Louisiana v. Grover D. CANNON
    NO. 2018-KK-0892
    Supreme Court of Louisiana.
    Louisiana June 15, 2018
    Denied.


text:
    Henry Norris WILLIAMS, et al. v. The DOW CHEMICAL COMPANY, et al.
    NO. 2018-CC-0930
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-110
    NO. 2018-OB-0474
    Supreme Court of Louisiana.
    June 15, 2018
    Leave to appeal denied.


text:
    Leslie BURNS, Landry Davis, Edith Dozier, Carrie Ferguson, Jamekelea Pinkston, Linette Richard, Yarkeshala Waldon, Kimberly Walker, Kenneth Brad Ott, Edwin Ray Parker, and the American Federation of State, County, and Municipal Employees, Council 17 v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER-SHREVEPORT and The Department of State Civil Service
    NO. 2017-C-0483
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Marlone Rassen BRUMFIELD
    NO. 2017-KO-1790
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   JOHNSON, C.J., would grant.


text:
    Cory P. ROY and Angie Roy v. DIXIE RV SUPERSTORES OF ACADIANA, LLC, et al.
    NO. 2013-CC-0603
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    Korey BOSSIER v. Mark GARBER, et al.
    NO. 2018-C-0541
    Supreme Court of Louisiana.
    June 15, 2018
    Granted. The matter is remanded to the court of appeal for en banc consideration in order to reconcile its holding in the instant case with its holding in Barlow v. Garber, 17-0401 (La. App. 3 Cir. 11/2/17), 230 So.3d 1002.


text:
    STATE of Louisiana v. William MORA
    NO. 2016-KP-1990
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Tyronne WILLIAMS
    NO. 2017-KO-1965
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


author: GENOVESE, J., recused.

text:
    James E. BOREN v. Earl B. TAYLOR
    NO. 2018-CC-0609
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   GENOVESE, J., recused.


author: JOHNSON, C.J., would grant in part.

text:
    STATE of Louisiana v. Shane BADEAUX
    NO. 2017-KO-1240
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   JOHNSON, C.J., would grant in part.

WEIMER, J., recused.

GENOVESE, J., would grant in part.


text:
    STATE of Louisiana v. Essence DYSON
    NO. 2017-K-1399
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Kevin BOWERS
    NO. 2017-KO-1637
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    Kevin CARRAL and Dorothy Mearidy v. STATE FARM INSURANCE COMPANY and ABC Insurance Co., et al.
    NO. 2018-OC-0612
    Supreme Court of Louisiana.
    June 15, 2018
    Not considered. Not timely filed. See La.S.Ct. Rule X § 5.


text:
    STATE of Louisiana v. Burtell THOMAS
    No. 2017-KP-0625
    Supreme Court of Louisiana.
    June 15, 2018
    Reconsideration denied.


text:
    STATE EX REL. Corderrius Dashon MITCHELL v. STATE of Louisiana
    NO. 2017-KH-1928
    Supreme Court of Louisiana.
    June 15, 2018
    Reconsideration granted. Writ denied.


text:
    STATE of Louisiana v. Fredrick GRIGSBY
    NO. 2016-KP-1408
    Supreme Court of Louisiana.
    June 15, 2018
    Not considered. See La.S.Ct. Rule IX, § 6.


text:
    STATE of Louisiana v. Troherro Keith BATISTE
    NO. 2018-K-0960
    Supreme Court of Louisiana.
    June 15, 2018
    Not considered. Not timely filed. See La. S. Ct. Rule X § 5{a).


text:
    Ronald Millard IRBY v. Tony MANCUSO, Sheriff of Calcasieu Parish, et al.
    NO. 2016-CI-2074
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Bernard Terrell FORREST
    NO. 2017-K-1683
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    Jason TRICHE, Wife, Melissa Triche, Individually and on Behalf of Their Minor Child, Payton N. Triche v. TURNER INDUSTRIES GROUP, LLC and/or Turner Industries, LLC, Ace American Insurance Company/The Ace Group, Steadfast Insurance Company, Kyle David Joekel, Terry Smith, and Brian Smith
    NO. 2018-CC-0605
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    STATE of Louisiana v. Gerard GRAY
    NO. 2017-K-1306
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.
   GENOVESE, J., would grant in part as to the second victim only.


text:
    Jason TRICHE, Wife, Melissa Triche, Individually and on Behalf of Their Minor Child, Payton N. Triche v. TURNER INDUSTRIES GROUP, LLC and/or Turner Industries, LLC, Ace American Insurance Company/The Ace Group, Steadfast Insurance Company, Kyle David Joekel, Terry Smith, and Brian Smith
    2018-CC-0606
    Supreme Court of Louisiana.
    June 15, 2018
    Denied.


text:
    Loretta Lois BICKERSTAFF, et al. v. Richard J. BICKERSTAFF
    NO. 2018-CC-1895
    Supreme Court of Louisiana.
    November 23, 2018
    Stay denied. Writ denied.


text:
    Loretta Lois BICKERSTAFF, et al. v. Richard J. BICKERSTAFF
    NO. 2018-CC-1896
    Supreme Court of Louisiana.
    November 23, 2018
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Grover D. CANNON
    NO. 2018-KK-1379
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


author: WELCH, J.

text:
    Avis WILLIAMS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    2018 CA 0268
    Court of Appeal of Louisiana, First Circuit.
    JUDGMENT RENDERED: SEPTEMBER 21, 2018
    Avis Williams, D.O.C. # 298632, Rayburn Correctional Center, Angie, Louisiana, Appellant, Plaintiff - Pro Se
    Jonathan R. Vining, Baton Rouge, Louisiana, Attorney for Appellee, Louisiana Department of Public Safety and Corrections
    Before: Pettigrew, Welch, and Chutz, JJ.
   WELCH, J.

The appellant, Avis Williams, an inmate in the custody of the Department of Public Safety and Corrections ("DPSC") and housed at Rayburn Correctional Center, appeals a judgment of the district court that dismissed his petition for judicial review. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Williams appeals a district court judgment dismissing his petition for judicial review of the DPSC Disciplinary Board Appeal number WNC-2016-129. The disciplinary action that is the subject of WNC-2016-129 addresses an incident that occurred on April 25, 2016, wherein Williams attempted to engage in a "non-professional" relationship with a DPSC employee. The DPSC placed Williams in administrative segregation pending investigation. On May 3, 2016, the DPSC charged Williams with general prohibited behavior, a violation of Rule # 30(D) of the Disciplinary Rules and Procedures for Adult Inmates.

On May 6, 2016, the DPSC deferred Williams's hearing due to him "being in transit." Thereafter, following a hearing held on May 11, 2016, the Disciplinary Board found Williams guilty of general prohibited behavior, a violation of Rule # 30(D). The Board sentenced Williams to a custody change and imposed a twelve-week loss of canteen privileges. Williams appealed the disciplinary matter within the DPSC in accordance with the Corrections Administrative Remedy Procedure ("CARP"), La. R.S. 15:1171 -79, arguing that the 72-hour rule was violated. The DPSC denied his appeal.

After exhausting his administrative remedies, Williams filed a petition for judicial review of the DPSC's Disciplinary Board decision with the Nineteenth Judicial District Court. The case was assigned to a commissioner for evaluation and to make a recommendation to the district court judge. Williams argued that DPSC violated its own rules and procedures for disciplinary actions by not affording him a disciplinary hearing within 72 hours of his placement in administrative lockdown, resulting in a violation of his right to due process. The DPSC answered, denying Williams's claims and specifically stating that Williams failed to show that the DPSC was clearly wrong in upholding his conviction for a Rule # 30(D) violation.

The Commissioner ordered the matter remanded to the DPSC for an expansion of the record to include the audio recording of the disciplinary hearing and stayed the case for 30 days pending the supplement of the record. Thereafter, the Commissioner issued a rule to show cause, ordering the DPSC to show cause why it should not be held in contempt for failing to comply with the Commissioner's order to supplement the administrative record with the audio recordings of Williams's disciplinary hearing. According to the minutes contained in the record, the show cause hearing never occurred; further, it is not clear from the record whether the audio recordings were ever supplemented to the administrative record by the DPSC.

Thereafter, the Commissioner issued his recommendation, finding that Williams was not entitled to relief because he had alleged no substantial right that was violated. The Commissioner did not specifically address Williams's contention on administrative appeal that his due process rights were violated when he did not receive a disciplinary hearing within 72 hours of being placed in administrative segregation.

The district court signed a judgment affirming the administrative decision and dismissing Williams's petition for judicial review.

Williams has appealed from that judgment, arguing that the DPSC violated its own rules and procedures for disciplinary actions by not affording him a disciplinary hearing within 72 hours of his placement in administrative segregation, resulting in a violation of his right to due process.

STANDARD OF REVIEW

Enacted in 1985, CARP authorized the DPSC to adopt and implement an administrative remedy procedure for receiving, hearing, and disposing of any and all inmate complaints and grievances. La. R.S. 15:1171 -79. As provided in CARP, an offender aggrieved by an adverse decision rendered pursuant to any administrative remedy procedure can institute proceedings for judicial review by filing a petition for judicial review in the Nineteenth Judicial District Court. La. R.S. 15:1177. On review of the agency's decision, the district court functions as an appellate court. Its review shall be confined to the record and shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level. La. R.S. 15:1177(A)(5). The court may affirm the decision of the agency or remand the case for further proceedings or order that additional evidence be taken. La. R.S. 15:1177(A)(8). The court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions, (2) in excess of the statutory authority of the agency, (3) made upon unlawful procedure, (4) affected by other error of law, (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, or (6) manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. La. R.S. 15:1177(A)(9) ; Edwards v. Bunch, 2007-1421 (La. App. 1st Cir. 3/26/08), 985 So.2d 149, 152.

On review of the district court's judgment in a suit for judicial review under La. R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Edwards, 985 So.2d at 152.

Under the Disciplinary Rules and Procedures for Adult Offenders, a prisoner has certain rights when appearing before the Disciplinary Board, including the right to present evidence and witnesses on his behalf. LAC 22:1.341(J)(5). These procedural rights must be followed unless waived by the accused. LAC 22:1.341 (G)(4)(b). The rules also provide certain procedural requirements, including the requirement that any offender placed in administrative segregation for a rule violation must be given a disciplinary hearing within 72 hours of being placed in administrative segregation. LAC 22:I.341(G)(3)(c)(i). When it is not possible to provide a full hearing within 72 hours of placement in administrative segregation, the accused must be brought before the Disciplinary Board, informed of the reasons for the delay, and remanded back to administrative segregation or released to his quarters after a date for a full hearing has been set. LAC 22:I.341(G)(3)(c)(i).

As recognized by the Commissioner in his report, in order for the district court to reverse or modify the decision of the DPSC, Williams had to first show that his substantial rights were prejudiced by the decision. See La. R.S. 15:1177(A)(9). As to the DPSC's violation of the 72-hour rule, Williams urges that a mere violation of the rule resulted in a substantial violation of his rights, but he offered no factual or legal support for his contention that the hearing delay adversely affected his ability to defend the general prohibited behavior charge lodged against him. While Williams correctly states that an offender placed in administrative segregation must be given a hearing within 72 hours of being placed in such, the rule provides for limited exceptions to this mandated hearing which include "good faith efforts by the administration." See LAC 22:I.341(G)(3)(c)(i). In this case, the administrative record indicates that the delay in Williams's hearing was due to Williams being in transit during the 72-hour period. Williams has offered no evidence to contradict the DPSC's contention that his hearing was delayed due to him being in transit.

Furthermore, as the Commissioner noted:

[T]he only penalties imposed were a custody change, and a loss of canteen. [Williams] was afforded a hearing and an appeal of the ruling to the Warden and the [DPSC] Secretary. Considering the nature of the penalty, and the fact that it does not affect the length of [Williams's] sentence or present any other drastic departure from expected prison life, [Williams] fails to set forth a substantial right violation....

Because Williams has failed to offer any evidence to show how the DPSC's actions prejudiced his substantial rights, modification or reversal of the disciplinary action is not warranted under the law. See Parker v. LeBlanc, 2002-0399 (La. App. 1st Cir. 2/14/03), 845 So.2d 445, 446 and Giles v. Cain, 99-1201 (La. App. 1st Cir. 6/23/00), 762 So.2d 734, 739. After a thorough review of the record, we conclude that the district court did not err in upholding the decision of the DPSC Disciplinary Board in accordance with La. R.S. 15:1177.

DECREE

After a thorough review of the record, in consideration of Avis Williams's arguments on appeal, and applying the relevant law and jurisprudence, we find no error of law or abuse of discretion by the district court in adopting, as its own, the Commissioner's report. Thus, we affirm the November 21, 2017 judgment of the district court and find that the district court's reasons for judgment, as set forth in the Commissioner's report, adequately explain the decision. We decline to assess costs in this pauper suit.

AFFIRMED.

      The Disciplinary Report indicates that Investigation Services received information involving Williams and a Winn Correctional Center officer; upon searching the personal vehicle of the officer, letters written by Williams were found wherein he attempted to engage in a non-professional relationship with the officer.

      The reason for Williams "being in transit" is unclear. Williams alleges he was "on a hospital trip;" however, the location and dates of this alleged hospital trip do not form a part of the record. Williams also alleges he was transferred from Elayn Hunt Correctional Center in St. Gabriel, Louisiana to Rayburn Correctional Center in Angie, Louisiana due to this disciplinary violation, which could also be the reason for Williams "being in transit." However, the record indicates that the disciplinary violation occurred at Winn Correctional Center in Winnfield, Louisiana.

      See LAC 22:1.341 (I)(30)(D).

      The DPSC Master Record indicates that the custody change was to "maximum" or "extended lockdown."

      The Disciplinary Rules and Procedures for Adult Offenders requires that any offender placed in administrative segregation for a rule violation must be given a disciplinary hearing within 72 hours of being placed in administrative segregation. LAC 22:I.341(G)(3)(c)(i).

      In his petition for judicial review, Williams noted that an attached page set forth his statement of claim as to why the DPSC's final agency decision was incorrect; however, the record on appeal does not contain a copy of the attached page/statement of claim. In his brief supporting his petition for judicial review, Williams presented arguments as to why the DPSC's final agency decision was incorrect.

      The office of commissioner of the Nineteenth Judicial District Court was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The district judge "may accept, reject, or modify in whole or in part the findings or recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions." La. R.S. 13:713(C)(5) ; New v. Louisiana Dep't of Pub. Safety & Cor r. , 2015-1160 (La. App. 1st Cir. 2/24/16), 190 So.3d 345, 347 n.4.


author: PENZATO, J.

text:
    STATE IN the INTEREST OF I.K.
    2018 CJ 0406
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 21, 2018
    Mark J. Semien, Baton Rouge, Louisiana, Attorney for Appellant, I.K., minor child
    Sherry Ann Powell, Livingston, Louisiana, Attorney for Appellee, Department of Children and Family Services
    Rebecca Davis Lee Livingston, Louisiana, Curator for Appellee, G.B., alleged father
    Leslie Jean McAndrew, Assistant Public Defender, Livingston, Louisiana, Attorney for Appellee, B.W., mother
    John Hall Thomas, New Orleans, Louisiana, Attorney for Appellee, R.K., alleged legal father
    R.K. Livingston, Louisiana, In Proper Person
    Scott Perrilloux, District Attorney, Michael B. Forbes, Assistant District Attorney, Hammond, Louisiana Attorney for Appellee, State of Louisiana
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   PENZATO, J.

Appellant, I.K., appeals a judgment of the juvenile court finding that the State of Louisiana, Department of Children and Family Services (DCFS), rebutted the presumption of paternity of R.K., the man who appears as father on her birth certificate. For the reasons that follow, we vacate the judgment.

FACTS AND PROCEDURAL HISTORY

In February and April of 2017, the State of Mississippi Child Protection Agency informed the DCFS that it obtained physical custody of I.K., a minor, after her grandmother, who was I.K.'s non-legal caretaker, was arrested. DCFS picked up the child from Mississippi and returned her to Livingston Parish, where she had previously resided. After interviewing the mother, B.W., DCFS determined that B.W.'s living conditions were not conducive to I.K. residing with her. At the time, I.K. requested not to be returned to R.K., the man listed on her birth certificate as her father.

I.K. was placed in the custody of DCFS on April 20, 2017, by a verbal instanter order of the juvenile court. Following a continued custody hearing on August 16, 2017, the juvenile court ordered that the child remain in the custody of DCFS. The District Attorney for Livingston Parish filed a Child in Need of Care (CINC) petition in the juvenile court pursuant to La. Ch.C. art. 631. A curator was appointed to represent the alleged biological father, G.B., who reportedly had been deported back to Mexico when B.W. was pregnant with I.K.

During DCFS's investigation, it was revealed that R.K. was listed as the father on the birth certificate of I.K. B.W. confirmed that R.K. was not the biological father of I.K. R.K. admitted that he had never been married to B.W. and had never had sexual relations with B.W., even though he signed the birth certificate of I.K. as I.K.'s father. At the time of I.K.'s birth, R.K. was dating B.W.'s sister. R.K. helped raise I.K. for nine years, while he was dating B.W.'s sister, but he no longer saw I.K. after they stopped dating. After I.K. came into the custody of DCFS, R.K. requested visitation with her.

On August 3, 2017, DCFS filed a motion to rebut the presumption of R.K.'s paternity pursuant to Louisiana Civil Code article 196 in the CINC proceeding. The hearing on this motion and the adjudication of the child was set for August 16, 2017. Judge Ralph Tureau, ad hoc, presided over the August 16, 2017 hearing and signed a judgment on the same day finding I.K. to be in need of care. The August 16, 2017 judgment also noted that DCFS "will work case plan and arrange visitation with [R.K.] and [I.K.]." The matter was set for further review on October 17, 2017. Subsequently, DCFS filed a case plan that included visitation between I.K. and R.K. weekly between September 7, 2017 and March 29, 2018.

Judge Blair Edwards, the district court judge for Division I, conducted the hearing on October 17, 2017, although the record contains no transcript from this hearing. The only testimony that appears to have been taken was that of the case worker. Judge Edwards signed a judgment on October 17, 2017, approving the case plan and setting the matter for review on April 10, 2018. On February 5, 2018, Judge Edwards signed another judgment referencing the hearing held on August 16, 2017, that decreed that DCFS had rebutted the presumption of paternity of R.K. and shown that he was not the legal nor biological father of I.K. Although the August 16, 2017 hearing was held before Judge Tureau, the February 5, 2018 judgment was signed by Judge Edwards. It is from this judgment that I.K. appeals.

SUBJECT MATTER JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La. App. 1 Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698. A threshold issue in any case is whether this court's appellate jurisdiction is properly invoked by a valid final judgment. See La. C.C.P. art. 2083 ; Rush v. Rush, 2012-1502 (La. App. 1 Cir. 3/25/13), 115 So.3d 508, 511, writ denied, 2013-0911 (La. 5/31/13), 118 So.3d 398. When the judgment that forms the basis of the appeal is defective, however, it becomes a jurisdictional matter, which we can raise on our own. Brett v. Brett, 2000-0436 (La. App. 1 Cir. 5/30/01), 794 So.2d 912, 914, writ denied , 2001-2283 (La. 11/16/01), 802 So.2d 611.

Louisiana Code of Civil Procedure article 1911 requires that "every final judgment shall be signed by the judge," except as otherwise provided by law. Employers Nat. Ins. Co. v. Workers' Comp. Second Injury Bd., 95-1756 (La. App. 1 Cir. 4/4/96), 672 So.2d 309, 311. A judgment signed by a judge who did not preside over the trial is fatally defective and does not constitute a final judgment over which this court can exercise appellate jurisdiction. Employers Nat. Ins. Co., 672 So.2d at 312 ; see also Acker v. Bailiff, 47,160 (La. App. 2 Cir. 6/27/12), 94 So.3d 1011, 1014 (stating that "[u]ntil the judge who conducted the trial signs the judgment, there is no final judgment").

There are exceptions allowing a judge who did not hear a matter to sign a judgment, but none apply here. Under La. C.C.P. art. 253.3, a duty judge is permitted to hear and sign specific orders and judgments, but that does not appear to be the case here. This also does not appear to be a case pursuant to La. C.C.P. art. 194, where certain orders and judgments may be signed in chambers. Louisiana Revised Statute 13:4209 permits a successor judge to sign judgments in matters he has not heard in specific instances. The provisions of La. R.S. 13:4209(A) pertain to matters heard and taken under advisement by a previous judge, but the judgment is signed by a successor judge, which is not the case here.

Louisiana Revised Statute 13:4209(B) provides:

(1) In cases which are heard and in which judgment is rendered, but not signed, whether the case was taken under advisement or not, if the judge who rendered the judgment dies, resigns, or is removed from office, or if his term expires before signing judgment in the case, his successor in office shall have the authority to sign a judgment which conforms with the judgment rendered.
(2) If a prior judge has stated an affirmative intent to sign a judgment and failed to do so for whatever reason, the successor judge is empowered to sign the judgment.

At the August 16, 2017 hearing, Judge Tureau first heard DCFS's motion to rebut the presumption of paternity. R.K. testified with regard to the motion. Judge Tureau gave oral reasons and granted the motion, but found it in the best interest of the child that she maintain a relationship with R.K. Subsequently, Judge Tureau heard testimony as to whether the child should be adjudicated in need of care. B.W. testified and stipulated that I.K. was in need of care. Ms. Tromeka Washington, the DCFS case worker, also testified.

On the date of the hearing, Judge Tureau signed a judgment, which reflected that R.K. testified and that rendered a partial ruling regarding visitation. The judgment specifically provides that DCFS "will work case plan and arrange visitation with [R.K.] and [I.K.]." This ruling was consistent with Judge Tureau's determination that it was in the best interest of I.K. to maintain a relationship with R.K., and his oral order ordered that R.K. be allowed some visitation pronounced in open court.

Judge Edwards presided at the October 17, 2017 hearing. The minutes indicate that two witnesses were sworn. The court ordered that custody be maintained with DCFS. Judge Edwards signed a judgment on the same day approving DCFS's case plan and maintaining custody of I.K. with DCFS. There was no mention of the motion to rebut the presumption of paternity or visitation. Judge Edwards later signed another judgment on February 5, 2018, finding that DCFS had rebutted the presumption of paternity of R.K. with no mention of visitation. The judgment further indicated that it was based on the rulings rendered on August 16, 2017.

The February 5, 2018 judgment rendered by Judge Edwards did not comply with La. R.S. 13:4209(B). A judgment was rendered and signed Judge Tureau on August 16, 2017, following a hearing held that same date that included consideration of DCFS's motion to rebut paternity. Louisiana Revised Statute 13:4209(B)(1) confers authority on a successor judge to sign a judgment in cases in which the judgment has been rendered but not signed. Therefore, the exception provided by La. R.S. 13:4209 does not apply to the present facts. Because Judge Edwards was without authority to render and sign the judgment, the judgment is fatally defective and must be vacated. See Starkey v. Starkey, 2013-0166 (La. App. 1 Cir. 8/6/13), 122 So.3d 579, 584 ; Darensbourg v. Great Atl. and Pac. Tea Co., Inc., 94-0761 (La. App. 1 Cir. 11/9/95), 665 So.2d 35, 38. Therefore, there is no final judgment before this court and this court lacks appellate jurisdiction to consider the merits of the arguments presented. La. C.C.P. 2083.

CONCLUSION

For the above and foregoing reasons, the February 5, 2018 judgment is vacated. This case is remanded for further proceedings. Assessment of costs of this appeal is deferred until a final determination of the merits.

VACATED AND REMANDED.

      The child and the adults in this confidential proceeding are referred to by their initials to preserve their anonymity. See Rules 5-1 and 5 -2 of the Uniform Rules-Courts of Appeal.

      In the motion, DCFS stated that it was filing the motion out of an abundance of caution. At the hearing, counsel for DCFS explained that if the court found the presumption to be rebutted, it would allow DCFS to remove R.K. from the child in need of care case as a named father.

      While the court minutes and judgment reflect that Judge Tureau was appointed ad hoc, no order of appointment is contained in the appellate record.

      The minutes from the October 17, 2017 hearing indicate that two witnesses were sworn in to testify. It is unclear if both actually did so. The judgments signed on October 17, 2017, and on February 5, 2018, refer to only one witness.

      Further, the February 5, 2018 judgment signed by Judge Edwards did not conform to the oral judgment of Judge Tureau, as it only ruled on the merits of the motion to rebut paternity, but omitted visitation. See Dutruch v. Zurich-American Ins. Co., 95-1923 (La. App. 1 Cir. 4/22/96), 681 So.2d 953, 954-55 (judgment signed by successor judge that did not conform to prior judge's oral ruling vacated).


author: CONERY, Judge.

text:
    LOUISIANA DEP'T. OF HEALTH AND HOSPITALS, Office of Public Health v. Sheman BERNARD
    18-213
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018 Rehearing Denied November 7, 2018
    Sheman Bernard, 1224 Carmel Drive, Lafayette, Louisiana 70501, PRO SE DEFENDANT/APPELLANT: Sheman Bernard
    Neal Risley Elliott, Jr., Bureau of Legal Services, Department of Health and Hospitals, Post Office Box 3836, Baton Rouge, Louisiana 70802, (225) 342-1128, COUNSEL FOR PLAINTIFF/APPELLEE: Louisiana Department of Health and Hospitals, Office of Public Health
    Alice O. Landry, Attorney at Law, 825 Kaliste Saloom Road # 102, Lafayette, Louisiana 70508, (337) 262-1573, COUNSEL FOR PLAINTIFF/APPELLEE: Louisiana Department of Health and Hospitals, Office of Public Health Dr. Juliette Stefanski, authority for Region IV Office of Public Health
    Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.
   CONERY, Judge.

In this case, the trial court granted a permanent injunction against defendant Sheman Bernard, enjoining her from any contact with the employees of the Louisiana Department of Health and Hospitals Office of Public Health, Sanitation Services in Baton Rouge, Louisiana (hereinafter "LDH-OPH"), or any employee of the Region IV Office of Public Health, Sanitation Services, located in the Clifton Chenier Complex in Lafayette, Louisiana (hereinafter "Region IV") except as provided in the judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The issues between Ms. Bernard and the LDH-OPH, the state entity with direct supervision over Region IV, have been ongoing since 2012. In 2012, Ms. Bernard and her husband, Timothy Bernard, entered Region IV offices with a video camera seeking a "file" for their address at 1224 Carmel Drive, Lafayette, La. 70501. The Bernards were told no such file existed.

On September 11, 2017, a "PETITION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION," was filed against Ms. Bernard on behalf of the LDH-OPH and Region IV. The petition was verified by Dr. Juliette "Tina" Stefanski, M.D. in her capacity as the Appointing Authority on behalf of Region IV Office of Public Health in the LDH. The LDH-OPH submitted several exhibits in support of the petition which will be discussed below.

First, an August 8, 2014 letter from Tiffany Sonnier, of Region IV, to Ms. Bernard indicated that on July 21, 2014, two representatives of Region IV attempted to inspect the Bernard property. The inspection was the result of a complaint received in the Lafayette Parish Health Unit. However, the two representatives were not allowed on the property by the owner.

On November 6, 2014, T.J. Lane, Assistant Secretary of the LDH-OPH, wrote to Ms. Bernard addressing her "inquiry and concerns" regarding a "water main leak and the abandoning of the water main" near the Bernard property by Lafayette Utilities System (LUS). The letter explained that an inspection had been conducted to determine how to repair a leaking water main on Ovey Street, near the Bernards' property. According to the November 6, 2014 letter, LUS determined that since the water main was leaking, and no customers were being serviced by that water main, they had abandoned the line located between Carmel Drive and Fred Street. Therefore, the leak had no impact on the Bernard property.

The November 6, 2014 letter further stated that LUS had contacted Region IV in Lafayette on October 10, 2014, to advise that a crew had been sent to the area to put dirt in the hole created by the leak and to clean up the area. In closing, the letter stated that Mr. Lane hoped the work done in the area was to the satisfaction of Ms. Bernard. The correspondence also contained contact information for Ms. Bernard to use if she had any questions about the LUS operations in the area.

On May 6, 2015, Mr. Lane of the LDH-OPH once again wrote to Ms. Bernard based on her "inquiry and concerns regarding a septic system" on her property. The letter indicated that Mr. Chris Soileau, LDH-OPH District Engineer in Lafayette, La., had conducted a site visit on November 20, 2014 and could not identify any sewage discharge or water leaks in the area. Additionally, on March 27, 2015, Ms. Jennifer Kihlken, LDH-OPH District Engineer, contacted Mr. Mike Rhodes with LUS, who stated that he was unaware of a septic system existing on the property. LUS, through Mr. Rhodes, responded that "the property is serviced through a service line to the LUS municipal sewer system. LUS had previously investigated the sewer lines for leaks by conducting a dye test in the area and found no issues." Mr. Lane's letter also advised Ms. Bernard that the family should contact a "Septic Tank Service" to determine if anything was present on the property and to help "with detection and abandonment." Mr. Lane's letter clearly stated that everything that could be done had been done by LDH-OPH and LUS to remedy the problem, and that the Bernards should enlist a private "Septic Tank Service" should they feel further assistance was needed.

On February 27, 2015 and March 16, 2015, Mr. and Ms. Bernard, Ms. Bionca Joseph, and Ms. Evelyn Bernard filed suit against several public entities, including the LDH-OPH and LUS, claiming, among other things, fraud and wrongful death. Both petitions were attached as exhibits to LDH-OPH's September 2017 petition for a permanent injunction against Ms. Bernard. A panel of this court heard the appeal of the consolidated suits in Bernard v. Lafayette City Police Dept. , 16-361, 16-362 (La.App. 3 Cir. 11/16/16), (unpublished opinion), writ denied , 16-2253 (La. 2/3/17), 215 So.3d 691.

Although the panel found the facts "exceedingly difficult to determine," the portion of the case dealing with LUS and LDH-OPH (referred to as "DHH" in the lawsuit) involved the attempt by the work crew dispatched by LUS to fill the hole created by the leak in October 2014. Apparently, the LUS crew was accompanied by the Lafayette City Police Department (LPD). Mr. Bernard and his daughter, Bionca Joseph, actively protested the presence of the LPD, LUS, and any equipment on their property, and were arrested for "battery on a police officer, criminal mischief, and resisting arrest." The panel ultimately affirmed the trial court's dismissal of the Bernards' claims against LUS and LDH-OPH on procedural grounds.

Procedural Posture Of The Plaintiff's Petition

In response to the petition filed by LDH-OPH, the trial court initially signed a Temporary Restraining Order (TRO) on September 11, 2017, and the hearing on the petition was fixed for October 16, 2017. A continuance was granted on October 18, 2017, re-fixing the hearing on the petition to November 27, 2017.

The hearing on the petition of LDH-OPH and Region IV for a permanent injunction against Ms. Bernard was ultimately held as scheduled on November 27, 2017 with counsel for LDH-OPH present, along with Ms. Bernard representing herself pro se. Ms. Bernard initially objected to the proceedings based on a case allegedly filed in federal court and stated that she did not intend to participate based on her Fifth Amendment rights. However, the trial court determined that the case in federal court had no relationship to LDH-OPH's request for a permanent injunction against Ms. Bernard, and the hearing proceeded as scheduled.

LDH-OPH called as its first witness Mr. Albert J. Mancuso, Jr., who is the program administrator for LDH-OPH retail food program, the on-site wastewater program, and the buildings and permits program. Mr. Mancuso testified that he oversaw the administration of these programs for LDH-OPH and had two individuals that he reported to in the administration, Ms. Carolyn Bombet, his direct supervisor, and Mr. Mike Vidrine, her superior. Mr. Mancuso's duties included the direct supervision of six individuals within his office, who in turn supervised the nine regional sanitarians. Indirectly, Mr. Mancuso has supervisory control over about two hundred and fifty employees across the State.

Mr. Mancuso testified that his involvement with Ms. Bernard began in July of 2017. He had no prior knowledge of any of the previous events. He spoke with Ms. Bernard on his business telephone, then he forwarded her complaint to the regional sanitarian, who was responsible for forwarding the complaint on to the local parish health unit.

From that point on, Mr. Mancuso began to receive what he termed "a pattern of calls every day." Mr. Mancuso testified that he received sixteen documented voicemails between July 19, 2017 and August 16, 2017. He further testified to additional calls that he did not document. Mr. Mancuso testified he found it increasingly more difficult to do his assigned job when "every day you have the same call and there's nothing that - nothing new or nothing has changed. There's nothing that was done."

In the face of increasing difficulty in his daily work, he sought the assistance of his boss, Mr. Vidrine. He told him, "We're getting calls all the time. I don't know what to do with this. It's already been taken care of. I thought it was all done. There is nothing else we can do." Mr. Vidrine agreed and referred the matter to counsel for LDH-OPH.

Mr. Mancuso also testified that he had referred Ms. Bernard to someone in her region for assistance, and suggested she go through her parish health unit, but she continued to contact him, although she never came to his office. At trial, Ms. Bernard refused her opportunity to cross-examine Mr. Mancuso.

LDH-OPH then called Ms. Susan Trahan, the sanitarian parish manager for Lafayette Parish. Ms. Trahan oversees the same areas as Mr. Mancuso does for the State and has direct supervision of six employees. Ms. Trahan testified to specific encounters with Ms. Bernard, which included the 2012 visit to her office in which Ms. Bernard entered with a video camera, seeking a file for her address pertaining to an old sewer system on her property at 1224 Carmel Drive. Ms. Bernard was told at that time that there were no records on file for that address.

Ms. Trahan testified that she had traveled to Ms. Bernard's property in 2014, along with an inspector, to investigate the complaint and the property. However, neither Ms. Trahan nor the inspector was allowed on the property by Ms. Bernard's husband.

Ms. Trahan further testified that in late June of 2017, Ms. Bernard began calling the office and talking to both Ms. Trahan and different inspectors. Ms. Trahan testified that since then, she had received recorded voice messages on the following dates: July 12th, July 27th, July 28th, August 4th, August 8th, August 11th, August 14th, and August 15th. Ms. Trahan testified that she had not received any calls from Ms. Bernard since the TRO was signed by the trial court on September 11, 2017.

Ms. Trahan then contacted her regional director, who at the time was Ms. Vickie Collins, about the repeated calls and the effect they were having on her ability to do her work, as there was nothing to be resolved. Whereupon, Ms. Collins also contacted counsel for LDH-OPH.

Ms. Bernard questioned Ms. Trahan on cross-examination concerning the reasons she came to the property in 2014, as she stated in 2012 that there were no records on file. Ms. Trahan responded that the inspection in 2014 was in response to a complaint phoned into the Baton Rouge office. The record does document that there was a problem at the property in 2014.

LDH-OPH rested its case. Ms. Bernard submitted no evidence in the record, and stated, "I told you what I had. I don't have any evidence to give to the Court, but I do have closing statements to speak on."

Closing statements began, and counsel for LDH-OPH asked the trial court to permanently enjoin Ms. Bernard from contacting the offices of Mr. Mancuso or Ms. Trahan. The trial court understood the request for the two offices, but further questioned counsel for LDH-OPH about the request that Ms. Bernard not be allowed to go within 200 feet of the Clifton Chenier Complex. Counsel expressed a concern that if Ms. Bernard was prevented from calling the offices in Baton Rouge and Region IV that she might begin making just as frequent in-person visits to the offices in question.

Ms. Bernard insisted that the initial problem had not been addressed and that both LDH-OPH and Region IV were keeping her from getting the information she needed to determine what was broken in her yard. However, documentation submitted in support of LDH-OPH's petition demonstrated that LDH-OPH did everything it could to assist Ms. Bernard in connection with her requests.

At the completion of closing arguments, the trial court stated:

YOUR HONOR: And I think that - I believe the testimony of Mr. Mancuso, when he said that there were times where he was on the phone for over an hour. Obviously, the repetitive phone calls as well as the repetitive voicemails were unreasonable.
They were not productive. They did not lead to a solution of the problem but rather led to the harassment and the disruption of the daily duties of Mr. Mancuso as well as Ms. Trahan.

Based on the foregoing, the trial court found in favor of LDH-OPH and granted the permanent injunction in part, enjoining Ms. Bernard from contacting by any means, including phone, mail, email or other electronic means, or threatening any employee of "the Office of Public Health, Sanitation Services in Baton Rouge, La., or any employee of the Region IV Office of Public Health, Sanitation Services at 220 W. Willow Street, Bldg. A. Lafayette, La."

However, the trial court denied the request of the LDH-OPH that Ms. Bernard be enjoined from coming within 200 feet of the Clifton Chenier Complex. The trial court further ordered that if Ms. Bernard had any "legitimate Office of Public Health issues," she could contact "Ms. Carolyn Bombet, RS | Chief Field Operations, office of Public Health, 628 N. 4th Street Bin 10 Box 9, Baton Rouge, LA 70802."

Ms. Bernard timely appealed the November 30, 2017 judgment reflecting the trial court's ruling.

ASSIGNMENTS OF ERROR

Ms. Bernard asserts the following errors on appeal:

1. The court [erred] in allowing preliminary hearing before [trial] of permanent injunction, also the court [erred] in failing to furnish peace bond or exhaust all legal remedies.
2. The court [erred] to Due Process proceedings.
3. The court and plaintiff failed to process serve the issuance of Temporary Restraining order, no signature of service was given or provided.
4. The court [erred] in ordering injunction, the affidavit did not prove harassing, assaulting, or threatening anyone of [its] staff or employee[s].
5. [V]iolations of ADA title II/III

LAW AND DISCUSSION

Standard of Review

The Louisiana Supreme Court in Rand v. City of New Orleans , 14-2506, p.4 (La. 6/30/15), 173 So.3d 1148, 1151 instructed that "[T]he issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence." The trial court's ruling granting a permanent injunction will not be disturbed on appeal absent manifest error. Mary Moe, L.L.C. v. Louisiana Bd. Of Ethics , 03-2220 (La. 4/14/04), 875 So.2d 22.

Assignment of Error Three

This court will first address the issue of service of the Temporary Restraining Order issued by the court, as it pertains to the trial court's ability to exercise its jurisdiction over Ms. Bernard. Ms. Bernard insisted at trial that she had not received service of the TRO. Ms. Bernard stated on the record, "I didn't know that I had a Temporary Restraining Order granted on me already. That wasn't process served to me, Your Honor." Counsel for LDH-OPH indicated that service of the TRO had been requested and a TRO dated September 13, 2017 is in the record addressed to Ms. Bernard. Ms. Bernard continued to insist she "didn't get anything."

The trial court then asked the minute clerk to check the service on Ms. Bernard, to which she replied, "personal service." The trial court then stated, "[p]ersonal service, okay. All right. Well, the Clerk shows personal service, so - and that's what I have to go with." Further, Ms. Bernard appeared at the trial on the merits on November 27, 2017. The trial had previously been fixed for October 16, 2017. However, at the request of counsel for LDH-OPH, the trial was continued by the trial court to the November trial date. Therefore, Ms. Bernard's presence at the trial on the merits belies her assertion that she did not receive notice of the proceedings. Based on the record before us we find that Ms. Bernard's assignment of error three is without merit.

Assignment of Error Four

Ms. Bernard argues the trial court erred in finding that her repeated calls to the offices of LDH-OPH in Baton Rouge and Lafayette were not supported by the "affidavit." In this case, the trial court held a full trial on the merits with both testimonial and documentary evidence, extensively discussed in this opinion. LDH-OPH did not simply rely on "affidavits" to support its case that Ms. Bernard's continued calls to the offices in Baton Rouge and Lafayette were impeding the employees from doing their duties.

The trial court found, based on the testimony and documentation submitted, that Ms. Bernard's actions warranted a permanent injunction against her contacting either office by any means. We find no manifest error in the trial court's ruling granting the permanent injunction in favor of LDH-OPH as stated in the November 30, 2017 judgment. Ms. Bernard's assignment of error four is also without merit.

Assignments of Error One and Five

Having discussed and determined that the main assignments of error raised by Ms. Bernard are without merit, we now turn to her assignments of error one and five.

In Ms. Bernard's assignment of error one, she asserts that the trial court erred in continuing with the hearing as LDH-OPH failed "to furnish [a] "peacebond[sic]" and or to "exhaust all legal remedies." In assignment of error five, Ms. Bernard states that LDH-OPH committed "[V]iolations of ADA [T]itle II/III."

Ms. Bernard failed to cite in her brief any legal remedies that the LPH-OPH was required to exhaust before filing its petition for a permanent injunction, or any violations by LDH-OPH of the Americans With Disabilities Act, "ADA [T]itle II/III." Ms. Bernard also failed to raise these issues with the trial court at the trial on the merits, and therefore we are precluded from considering them on appellate review. Boudreaux v. State Dep't of Transp. & Dev. , 01-1329 (La. 2/26/02), 815 So.2d 7.

The bond required by La.Code Civ.P. art. 3610 was properly waived by the court pursuant to La.R.S. 13:4581, which provides that state agencies, such as LDH-OPH, "shall not be required to furnish any appeal bond or any other bond in any judicial proceedings instituted by or brought against them, that arise from activities within the scope and course of their duties and employment." Therefore, the trial court properly waived the bond requirement of La.Code Civ.P art. 3610 as requested by LDH-OPH in their petition for a permanent injunction. Thus, Ms. Bernard's assignments of error one and five are also without merit.

Assignment of Error Two

In assignment of error two, Ms. Bernard claims she did not receive "Due Process Proceedings." Ms. Bernard was present at the proceedings, had the opportunity to cross-examine the witnesses for LDH-OPH, and had the option to submit evidence in opposition to both the testimonial and documentary evidence submitted to the trial court by LDH-OPH. Therefore, she received the process due all litigants. Accordingly, Ms. Bernard's assignment of error two is without merit.

Further, we find that the trial court was sensitive to Ms. Bernard's pro se status and her claimed disability. The trial court allowed her to fully state her case. However, the record clearly supported the claim by LDH-OPH that everything that could be done had been done by the Office of Sanitation in both Lafayette and Baton Rouge to assist Ms. Bernard with her alleged problem. We therefore affirm the trial court's judgment of November 30, 2017 in its entirety.

CONCLUSION

For the foregoing reasons, the trial court's November 30, 2017 judgment in favor of Louisiana Department of Health and Hospitals Office of Public Health, Sanitation Services is affirmed in its entirety. All costs of this appeal are cast against Sheman Bernard.

AFFIRMED.

      This was not the first suit brought by the Bernards concerning the condition of their property. In Bernard v. Lafayette-City Parish Consol. Gov't, 12-1341 (La.App. 3 Cir. 4/10/13) (unpublished opinion), writ denied , 13-971 (La. 6/14/13), 118 So.3d 1088, a panel of this court affirmed the dismissal of both LUS and LDH-OPH on procedural grounds based on the Bernard's refusal to submit to the jurisdiction of the trial court. When the plaintiffs were informed that the trial court would have to dismiss their claim, both Ms. Bernard and Mr. Bernard agreed. Mr. Bernard then replied "[T]hat's what we are asking you to do." Accordingly, the trial court dismissed their case with prejudice.

      LDH-OPH did not appeal the trial court's denial of the portion of the permanent injunction enjoining Ms. Bernard from coming within 200 feet of the Clifton Chenier Complex.

      The term "peacebond" used by Ms. Bernard is misplaced in this context, as it refers to a term from the La.Code Crim.P. art. 26, et seq. The bond which applies in this instance is the one required in La.Code Civ.P. art. 3610.