author: PENZATO, J.

text:
    Bridget JACKSON v. Troylond M. WISE, ACME Truck Line, Inc., and First Guard Insurance Company
    2017 CA 1062
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 13, 2018
    Michael C. Palmintier, Jonathan Mitchell, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant, Bridget Jackson
    James M. Dill, David P. Vial II, Lafayette, Louisiana, Attorneys for Defendant/Appellee, Acme Truck Line, Inc.
    Melvin A. Eiden, Steven B. Rabalais, Lafayette, Louisiana, Attorneys for Defendant/Appellee, Troylond Wise
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

Appellant, Bridget Jackson, appeals the trial court's judgment granting summary judgment in favor of ACME Truck Line, Inc., (ACME) and dismissing her claims and the trial court's judgment denying her motion for new trial. For the reasons that follow, we affirm the trial court.

FACTS AND PROCEDURAL HISTORY

This matter arises out of an accident on February 17, 2015, wherein Troylond Wise was driving a 1999 Peterbilt 18-wheeler that he owned. Before the accident Takisha Welch had asked Mr. Wise to pull a trailer for use by Alpha of Charisma Carnival Club (Alpha) as a float in a 2015 Mardi Gras parade that took place in Franklin, Louisiana. Ms. Welch, on behalf of Alpha, paid Mr. Wise $100.00 for the use of his tractor-trailer. On the date of the parade, Ms. Jackson was a passenger in the float being pulled by Mr. Wise. While the tractor-trailer attempted to make a right turn, Ms. Jackson was thrown from the float, and Mr. Wise ran over her twice, resulting in severe injuries. As a result of the accident, Ms. Jackson filed suit against Mr. Wise, ACME, and First Guard Insurance Company (First Guard), the non-trucking liability insurer for the tractor-trailer. First Guard and Ms. Jackson have entered into a settlement agreement, and First Guard has been dismissed from this action.

Prior to the 2015 accident, on September 1, 2011, Mr. Wise and ACME entered into a five-year lease agreement, wherein Mr. Wise leased his tractor-trailer to ACME in order to transport cargo for ACME. Section 5 of the lease agreement provided as follows:

EXCLUSIVE USE: It is understood and agreed that [ACME] shall have exclusive possession, control and use of the Leased Equipment for the duration of the Lease Agreement. [ACME] assumes complete responsibility for the operation of the Leased Equipment for the duration of the Lease Agreement. The Leased Equipment shall not be operated for any other purpose other than the transportation of [ACME] authorized shipments. Further, Owner is specifically prohibited from entering into any trip-lease, or other agreement or contract involving the Leased Equipment during the lease term, nor shall Owner permit the unauthorized use of the Leased Equipment at any time whatsoever. The Owner agrees that the Leased Equipment shall not be used for any parades, social events, or any private use whatsoever .... (emphasis added).

Based on the lease agreement, ACME filed a motion for summary judgment, claiming that the only allegation made against it was that the tractor-trailer was owned and/or being driven by ACME. ACME asserted that it was undisputed that it was not the owner of the tractor-trailer, but even if it was, it could not be liable based on ownership. Furthermore, ACME, citing Jones v. Western Preferred Casualty Company, et al., 633 So.2d 667, 669 (La. App. 1 Cir. 1993), writ denied, 94-0273 (La. 4/4/94), 635 So.2d 1123, asserted that it had no liability as a lender of the tractor-trailer because under Louisiana law one who lends his vehicle to another is not responsible for the negligence of that person "unless he had or should have had knowledge that the borrower was physically or mentally incompetent to drive." ACME further asserted that no employee/employer relationship was alleged between Mr. Wise and ACME, and even if there was, it could not be liable on this basis. ACME also claimed that Mr. Wise was in clear violation of his lease at the time of the accident and was not carrying cargo for ACME. Anticipating the response of Ms. Jackson, ACME pointed out that 49 C.F.R. § 376.12, which provides that the owner-lessor is deemed to be acting in the business of the carrier-lessee, is a rebuttable presumption. ACME attached to its motion for summary judgment relevant portions of deposition testimony of Mr. Wise, relevant portions of deposition testimony of Ms. Welch, photographs of the accident scene, and relevant portions of the lease agreement.

Ms. Jackson filed an opposition to ACME's motion for summary judgment, claiming that pursuant to 49 C.F.R. § 376.12(c), ACME was required to "assume complete responsibility for the operation of the equipment for the duration of the lease." Ms. Jackson asserted that whether the tractor-trailer was operating in the business of ACME was irrelevant and there were genuine issues of material fact which precluded summary judgment.

ACME filed a reply to Ms. Jackson's opposition claiming that Ms. Jackson's argument was that she need only show the existence of a lease between the owner-lessor (Mr. Wise) and the carrier-lessee (ACME) to hold ACME liable for the actions of Mr. Wise. Relying on Bays v. Summitt Trucking, LLC, 691 F.Supp.2d 725, 730 (W.D. Ky. 2010), citing Penn v. Virginia International Terminals, Inc., 819 F.Supp. 514, 523 (E.D. Va. 1993), ACME also pointed out that the majority of the cases cited by Ms. Jackson were before the 1992 amendments to the Interstate Commerce Commission (ICC) regulations and were "based upon an interpretation of the ICC regulations that were unintended by the ICC." ACME asserted that after 1992, the cases agreed that 49 C.F.R. § 376.12(c) only created a rebuttable presumption of statutory employment. See Bays, 691 F.Supp.2d at 730-32. ACME also claimed that the issue of the MCS-90 endorsement applied to insurance carriers, not ACME, a motor carrier.

At the hearing on the motion for summary judgment, ACME argued that Mr. Wise was not in the course and scope of his employment. Ms. Jackson argued that FMCSA regulations, 49 C.F.R. § 350-399, specifically 49 C.F.R. § 376.12(c)(1), created strict liability on the part of ACME for the actions of Mr. Wise. After hearing the arguments, the trial court gave oral reasons for judgment pointing out that the FMCSA only applied to interstate, not intrastate trips, as was the trip at issue in this matter. Furthermore, the trial court found that because Mr. Wise was not in the course and scope of his employment at the time of the accident, ACME was entitled to summary judgment. The trial court signed a judgment in accordance with its oral reasons on August 2, 2016, granting ACME's motion and dismissing all claims of Ms. Jackson against ACME. Ms. Jackson filed a motion for new trial arguing that ACME's written motion for summary judgment and memorandum in support requested relief based on vicarious liability, course and scope of employment issues, and the viability of the parade exclusion in the lease agreement with Mr. Wise, but that at the hearing ACME argued about the inapplicability of 49 C.F.R. § 376.12 based on Jurey v. Kemp , 2011-0142 (La. App. 1 Cir. 9/20/11), 77 So.3d 83, which Ms. Jackson claims does not apply to the facts of this case. The motion for new trial was also based on Ms. Jackson's claim that ACME filed a reply brief to her opposition to ACME's motion for summary judgment setting forth new grounds for relief, expanding the scope of its motion for summary judgment. Ms. Jackson asserted that at the hearing on the motion for summary judgment, ACME presented for the first time that 49 C.F.R. § 376.12 did not apply to the lease between ACME and Mr. Wise because the tractor-trailer was operating within the state of Louisiana and not in interstate commerce.

After a hearing, the trial court denied the motion for new trial, and on February 21, 2017, signed a judgment in accordance therewith. It is from this judgment that Ms. Jackson appeals. Ms. Jackson assigns as error whether 49 C.F.R. § 376.12 imposes liability; whether La. C.C.P. art. 966(F) allows a defendant to advance arguments not in its brief; and whether a new trial should have been granted.

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. Our appellate jurisdiction extends to "final judgments," which are those that determine the merits in whole or in part. La. C.C.P. arts. 1841 and 2083 ; see Van ex rel. White v. Davis, 2000-0206 (La. App. 1 Cir. 2/16/01), 808 So.2d 478, 483.

Ms. Jackson appealed only the judgment rendered on February 21, 2017, which was the judgment denying her motion for a new trial. The established rule in this circuit is that the denial of a motion for new trial is an interlocutory and non-appealable judgment. McKee v. Wal-Mart Stores, Inc., 2006-1672 (La. App. 1 Cir. 6/8/07), 964 So.2d 1008, 1013, writ denied, 2007-1655 (La. 10/26/07), 966 So.2d 583. However, the Louisiana Supreme Court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant's brief that he intended to appeal the merits of the case.

Carpenter v. Hannan, 2001-0467 (La. App. 1 Cir. 3/28/02), 818 So.2d 226, 228-29, writ denied, 2002-1707 (La. 10/25/02), 827 So.2d 1153. Furthermore, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment. Landry v. Leonard J. Chabert Medical Center, 2002-1559 (La. App. 1 Cir. 5/14/03), 858 So.2d 454, 461 n.4, writs denied, 2003-1748, 2003-1752 (La. 10/17/03), 855 So.2d 761. Thus, the interlocutory denial of a motion for new trial is subject to review on appeal in connection with the review of an appealable judgment in the same case. Moran v. G & G Const., 2003-2447 (La. App. 1 Cir. 10/29/04), 897 So.2d 75, 83 n.4, writ denied, 2004-2901 (La. 2/25/05), 894 So.2d 1148. The standard of review of a denial of a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion. Rao v. Rao, 2005-0059 (La. App. 1 Cir. 11/4/05), 927 So.2d 356, 361, writ denied, 2005-2453 (La. 3/24/06), 925 So.2d 1232.

It is obvious from Ms. Jackson's brief that she intended to appeal the judgment on the merits-the August 2, 2016 judgment that granted ACME's motion for summary judgment. The granting of a motion for summary judgment and dismissing a defendant with prejudice is a final, appealable judgment. See La. C.C.P. art. 1915(A)(1) and (3) ; Vicknair v. Our Lady of the Lake Hosp., Inc., 2017-0273 (La. App. 1 Cir. 4/18/17), 2017 WL 1386420 (unpublished). Thus we will treat the appeal accordingly.

DISCUSSION

Summary Judgment

Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2). In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750-51.

"After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.

Jackson v. City of New Orleans , 2012-2742 (La. 1/28/14), 144 So.3d 876, 882, cert. denied , --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014).

Applicability of Interstate Commerce Commission Regulations

Ms. Jackson assigns as error that the trial court failed to apply the "complete responsibility" provisions of the FMCSA, specifically 49 C.F.R. § 376.12(c)(1), and thereby failed to find ACME liable for the actions of Mr. Wise. ACME counters that the aforementioned federal regulation is not applicable because the FMCSA's general jurisdiction over motor carriers is limited to interstate travel, and the present situation involves intrastate travel. The trial court determined that because Mr. Wise was not on an interstate trip at the time of the accident, the federal regulations did not apply.

The Department of Transportation regulates leases of equipment used in interstate commerce under the authority of 49 U.S.C. § 13501, which states, in relevant part:

The Secretary and the Board have jurisdiction, as specified in this part, over transportation by motor carrier and the procurement of that transportation, to the extent that passengers, property or both are transported by the motor carrier-
(1) between a place in-
(A) a State and a place in another State;
(B) a State and another place in the same State through another State ...

An "authorized carrier may perform authorized transportation in equipment it does not own" only if there is a written lease granting the use of the equipment and meeting the requirements contained in 49 C.F.R. § 376.12. 49 C.F.R. § 376.11.

Relying on 49 C.F.R. § 376.12(c)(1) and federal jurisprudence, Ms. Jackson maintains that to ensure that the motor carrier cannot insulate itself from liability to injured persons, federal regulations require a motor carrier to assume "exclusive control" and "complete responsibility" for its leased vehicles during the duration of the lease, and there are no exceptions to this rule. Ms. Jackson also asserts that because ACME entered into a lease with Mr. Wise, it is "undisputed that federal regulations of the FMCSA apply to that lease." We disagree that it is undisputed that the federal regulations apply to the present case.

The purpose of the regulations is "to protect members of the public from motor carriers' attempts to escape liability for the negligence of drivers by claiming their drivers were independent contractors." Mendoza v. Hicks, 2016 WL 915297 at * 2 (E.D. La. 2016), citing Perry v. Harco Nat. Ins. Co., 129 F.3d 1072, 1074 (9th Cir. 1997). The regulations mandate that under a regulated lease, the carrier-lessee assume "exclusive possession, control, and use of the equipment for the duration of the lease[,]" and "assume[s] complete responsibility for the operation of the equipment or duration of the lease." 49 C.F.R. § 3 76.12(c).

Ms. Jackson claims that 49 C.F.R. § 376.12(c)(1) creates strict liability on behalf of ACME for the actions of Mr. Wise, and relies on Reliance National Insurance Company v. Royal Indemnity Co., 2001 WL 984737 (S.D.N.Y. Aug 24 2001). Reliance is factually similar to the present case in that a member of the public was injured by a tractor-trailer during a parade. Reliance, the trucking insurer for the motor carrier, sought a declaratory judgment action seeking to establish that it owed no coverage for a wrongful death arising out of an accident during a parade. Reliance argued that the regulations did not apply to hold the motor carrier liable for the accident because the parade trip was a wholly intrastate trip over which the ICC had no jurisdiction. Id. at *4. Reliance asserted that Congress delineated the ICC's authority in 49 U.S.C. § 13501 to only interstate trips.

The court rejected Reliance's argument finding that the intrastate nature of the particular trip at issue was not determinative but that because the lease between the owner-lessor and the carrier-lessee was for interstate transport, the regulations applied, and Reliance was liable for the insurance coverage provided in its policy to the carrier-lessee.

A federal court in Louisiana also relied upon the reasoning in Reliance to hold that the truck's procurement or lease agreement, rather than the circumstances of the particular loss, determine the application of the mandatory insurance required of the motor carrier. Travelers Indent. Co. of IL v. W. Am. Specialized Transp. Servs. Inc., 235 F.Supp.2d 522, 529-30 (W.D. La. 2002).

The United States Fifth Circuit Court of Appeals disagreed with the reasoning of both Reliance and Travelers in Canal Ins. Co. v. Coleman , 625 F.3d 244, 250-51 (5th Cir. 2010), in determining the applicability of insurance coverage pursuant to the MCS-90 endorsement, which it held was dependent upon the trip taken at the time of the loss. The Fifth Circuit analyzed many different cases, including Reliance and Travelers , and concluded that "the weight of authority from this Circuit and beyond supports [its] conclusion that the MCS-90 [endorsement] does not cover vehicles when they are not presently transporting property in interstate commerce." Coleman, 625 F.3d at 251.

ACME relies on Jurey to oppose Ms. Jackson's argument. In Jurey, when the accident occurred, Mr. Kemp, the driver of a tractor, had just picked up the trailer after maintenance was performed and was driving home. Jurey, 77 So.3d at 84 & 88 n.9. With respect to the MCS-90 endorsement, we stated that the endorsement only applies to interstate travel and not an intrastate trip. Jurey, 77 So.3d at 88-89. However, the summary judgment granted to the carrier-lessee was not before this court and we found it unnecessary to address whether Mr. Kemp was performing services for the carrier-lessee at the time of the accident. Jurey, 77 So.3d at 85 n.2.

We find that Ms. Jackson's reliance on Reliance to be misplaced as the present case does not involve the interpretation of the MCS-90 endorsement, and even if it did, the Fifth Circuit in Coleman has rejected the reasoning of Reliance. We also do not find Jurey to be determinative of the issues before us. In Jurey we were deciding whether there was insurance coverage, not whether the carrier-lessee was liable for the actions of the owner-lessor. Therefore, despite the arguments of the parties and the oral reasons of the trial court, none of the above cases are determinative of the facts of this case. ACME's trucking liability insurer has not been sued in this matter and whether the federally mandated insurance is applicable is not the issue before us.

Vicarious Liability of ACME

Ms. Jackson is attempting to hold ACME statutorily liable for the actions of Mr. Wise. Ms. Jackson claims that by virtue of the FMCSA regulations, ACME is vicariously liable for the negligent operation of a leased vehicle as long as a valid lease was in effect and the placard displaying the lessee's USDOT identification number was on the tractor (known as "logo liability). See Reliance, 2001 WL 984737 at *7-8.

In Simmons v. King, 478 F.2d 857, 860, 866 (5th Cir. 1973), the court held that the motor carrier regulations preempt state law in tort actions in which a member of the public is injured by the negligence of a motor carrier's employee while operating an interstate carrier vehicle. In Price v. Westmoreland, 727 F.2d 494, 495 (5th Cir. 1984), the court held that a carrier-lessee was vicariously liable for injuries to a passenger in a leased truck even though the driver of a truck leased by the carrier did not have permission to carry passengers and the carrier had no knowledge of the passenger's presence. In both Simmons and Price, the tractor-trailer was hauling property in interstate commerce for the carrier-lessee at the time of the accident. Therefore, neither case discussed the scope of employment issue.

In 1956 Congress amended the Interstate Common Carrier Act "in order to protect the public from the tortious conduct of the often judgment-proof truck lessor operators by requiring interstate motor carriers to assume full direction and control of the vehicles 'as if they were the owners of such vehicles:' " Bays, 691 F.Supp.2d at 731, quoting Price, 727 F.2d at 495-96 (internal ellipses and brackets omitted). Congress' purpose is codified in the language of 49 U.S.C. § 14102(a)(4) which states:

(a) General authority of Secretary.-The Secretary may require a motor carrier providing transportation subject to jurisdiction under subchapter I of chapter 135 that uses motor vehicles not owned by it to transport property under an arrangement with another party to-
...
(4) have control of and be responsible for operating those motor vehicles in compliance with requirements prescribed by the Secretary on safety of operations and equipment, and with other applicable law as if the motor vehicles were owned by the motor carrier.

As a result of Section 14102, the ICC promulgated 49 C.F.R. § 376.12(c)(1) which states:

(c) Exclusive possession and responsibilities.
(1) The lease shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment Tor the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.

Prior to 1992 many courts interpreted 49 C.F.R. § 376.12(c)(1) to create an irrebuttable "statutory employment" between carriers-lessees and owner-lessors that was independent from any state law definition. See Price, 727 F.2d at 495 ; Rodriguez v. Ager, 705 F.2d 1229, 1237 (10th Cir. 1983). Some courts even imposed strict vicarious liability on carriers for any damage caused by an owner-lessor while operating the leased vehicle. Rodriguez, 705 F.2d at 1237 ; Wellman v. Liberty Mut. Ins. Co., 496 F.2d 131, 136 (8th Cir. 1974). Ms. Jackson relies on both Rodriguez and Wellman in arguing that ACME is strictly liable for the actions of Mr. Wise.

However, in response to these cases, industry trade groups began petitioning the ICC which then issued guidance documents that questioned the judicial interpretation of its regulations. See Lease & Interchange of Vehicles (Identification Devices), 3 I.C.C.2d 92, 93 (1986). The ICC "revised the lease regulations [in 1986] to remove certain obligations that the earlier regulations had placed on motor carriers." Lohr v. Zehner, 2014 WL 2504574, at *3 (M.D. Ala. June 3, 2014). In the course of promulgating that regulation, the ICC emphasized that the nature of vicarious liability under a regulated lease is a matter of state, not federal, law:

We prefer that courts decide suits of this nature by applying the ordinary principles of State tort, contract, and agency law. The Commission did not intend that its leasing regulations would supersede otherwise applicable principles of State tort, contract, and agency law and create carrier liability where none would otherwise exist. Our regulations should have no bearing on this subject. Application of State law will produce appropriate results.

Id., citing, Lease & Interchange of Vehicles, 3 I.C.C.2d 92, 93. The same issues present in the current matter were succinctly described in Lohr.

This exclusive-control regulation, along with corresponding language in lease agreements, has led to significant litigation across federal and state courts concerning the extent of motor carriers' vicarious liability to the public for negligent and wanton acts by the drivers of their leased vehicles. Courts have interpreted the regulations to impose various forms of vicarious liability on motor carriers. At first, some courts imposed so-called Togo liability' for all negligence involving a vehicle that displayed a carrier's identifying placards and motor-carrier number, regardless of the existence of a lease. See Mellon National Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473 (3d Cir. 1961) (imposing strict liability after a lease had been terminated because the motor carrier had not yet collected its placards from the driver/lessor) superseded by regulation, Lease & Interchange of Vehicles (Identification Devices) (49 C.F.R. Part 1057), 3 I.C.C.2d 92, 95-97 (1986)as recognized in Jackson v. O'Shields, 101 F.3d 1083, 1086-87 (5th Cir. 1996). Other courts imposed vicarious liability that mirrored traditional respondeat-superior principles, covering only those actions that were reasonably within the scope of employment for the motor carrier. See Wilcox v. Transam. Freight Lines, Inc., 371 F.2d 403, 404 (6th Cir. 1967) ("In our opinion, the I.C.C. regulations do not impose a liability on a carrier using leased equipment greater than that when operating its own equipment."). Finally, many courts imposed strict-lease liability: so long as there was a lease in effect, "exclusive control" and "complete responsibility" meant that the motor carrier was liable for any negligence involving the vehicle under lease. See Morris v. JTM Materials, Inc., 78 S.W.3d 28, 38-43 (Tex. Ct. App. 2002).

Lohr, 2014 WL 2504574, at *2. Ms. Jackson urges this court to apply a strict-lease liability and/or the "logo liability."

We agree with Lohr that the ICC attempted to alter the judicial interpretation of strict-lease liability or "logo liability." Relying on the ICC's own interpretation, Lohr stated, "[t]his court cannot find that the commission's interpretation was erroneous or inconsistent. The text of the regulation requires certain language within lease agreements, but it does not impose any liability scheme directly. It is reasonable to interpret the regulation as leaving that question to various States' common-law courts." Lohr, 2014 WL 2504574, at *3 (emphasis added).

Therefore, Lohr looked to Alabama state law to determine the scope of vicarious liability of a lessee under a federally regulated carrier lease. Additionally, Lohr explained that even if the federal law were to control, the carrier-lessee would only be held liable for the actions of the driver if he was within the scope of his employment by the carrier-lessee. Lohr, 2014 WL 2504574, at *4. Lohr noted that the authorizing statute makes clear that motor carriers should be liable for the operation of leased vehicles "as if the motor vehicles were owned by the motor carrier." 49 U.S.C. § 14102(a)(4). Lohr pointed out that the meaning of this provision was discussed in White v. Excalibur Ins. Co., 599 F.2d 50, 53 (5th Cir. 1979) which stated as follows:

To make them assume the burden of liability for the harm caused by their leased vehicles without according them the protection given employers under state substantive law would broaden their exposure to suit beyond that to which employers in fact are subject. We find no warrant for such strict liability in the federal law.

Therefore, Lohr concluded that even applying federal law, the carrier-lessee would have the same protection against liability as an employer would receive; it would not be liable for actions by the owner-lessor/driver outside the scope of his employment. Lohr, 2014 WL 2504574, at *4.

In 1992, the ICC amended 49 C.F.R. § 376.12(c) by adding Subsection (4) which states:

Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. An independent contractor relationship may exist when a carrier lessee complies with 49 U.S.C. § 14102 and attendant administrative requirements.

As recognized by Edwards v. McElliotts Trucking, LLC, 268 F.Supp.3d 867, 878 (S.D.W. Va. 2017), even after the 1992 amendment adding Subsection (4), there is no consensus in the courts as to the relationship between carriers-lessees and owners-lessors. Edwards specifically set forth:

Three approaches have surfaced in the intervening years. A small number of courts to have come in contact with these regulations cling to the pre-1992 interpretation of the control regulation. A second group has emerged that holds that Subsection (c)(4) requires that courts interpret the control regulation to have no bearing on the classification of the relationship between carriers and owner-operators. Finally, a third group of courts believe the control regulation and Subsection (c)(4) create a rebuttable presumption of employment that can be rebutted by resort to state common law principles.

Edwards, 268 F.Supp.3d at 878 (internal citations omitted). Edwards determined that the rebuttable presumption determination was the most reasonable. Edwards, 268 F.Supp.3d at 878.

The addition of Subsection (c)(4) was also analyzed by Simpson v. Empire Truck Lines, Inc., 571 F.3d 475, 477 (5th Cir. 2009), in light of 49 U.S.C. § 14102(a)(4) and determined with regard to Texas workers' compensation law that the FMCSA regulations did not affect the terms "employer" and "employee" under state law. Interpreting Simpson, Barnett v. Bullock, 2015 WL 58869, at *5 (M.D. La. 2015), recognized that the definitions of the FMCSA regulations did not control either tort or worker's compensation liability, even if the definitions controlled with regard to insurance coverage.

As both Lohr and Edwards determined, this court must look to state law to determine whether Mr. Wise was acting within the course and scope of his employment at the time of the accident to determine if ACME is liable to Ms. Jackson. We find it unnecessary to determine which line of cases to follow regarding whether Subsection (c)(4) has no bearing on the relationship of the carrier and owner-lessor or creates a rebuttable presumption of employment because, under either scenario, we find the record supports that Mr. Wise was not acting in the furtherance of the business of ACME and was actually acting in direct contravention of the lease. 49 C.F.R. § 376.12(c) does not create vicarious liability on the part of ACME for the actions of Mr. Wise.

Based on the above statutes, regulations, and jurisprudence, we agree with the trial court that because Mr. Wise was acting outside the scope of his employment, the mandatory provisions of 49 C.F.R. § 376.12(c) do not apply to ACME in this situation to hold it vicariously liable for the actions of Mr. Wise.

New Arguments at Motion for Summary Judgment Hearing

Ms. Jackson asserts that the trial court violated La. C.C.P. art. 966(F) by permitting ACME to raise new arguments at the hearing that were not briefed. Louisiana Code of Civil Procedure article 966(F) states, "A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time."

Ms. Jackson argues that because the inter/intra-state argument was not set forth in ACME's motion for summary judgment, the trial court erred in granting the motion. ACME filed a motion for summary judgment arguing that it had no vicarious liability for the actions of Mr. Wise who was not in the course and scope of his employment at the time of the accident. Ms. Jackson then opposed the motion for summary judgment claiming that 49 C.F.R. § 376.12(c) created statutory liability on behalf of ACME for the actions of Mr. Wise. ACME responded at the hearing that 49 C.F.R. § 376.12(c) did not hold a carrier strictly liable for all the acts of a driver once a lease was signed. ACME explained the reason the federal regulations did not apply in this matter was because the trip Mr. Wise was on at the time was an intrastate trip not covered by the federal regulations and relied on the case of Jurey.

Although Ms. Jackson claims she had no notice of the argument made by ACME with regard to intrastrate trips, this court notes that ACME relied upon this case in its original motion for summary judgment. ACME did not request summary judgment based on 49 C.F.R. § 376.12(c), and the trial court did not render the summary judgment on that basis. Instead, the trial court determined that the federal regulations did not apply. Ms. Jackson opposed ACME's motion for summary judgment by relying on 49 C.F.R. § 376.12(c) and now complains that ACME pointed out that the regulation does not apply to the facts of this case. Ms. Jackson is therefore asking this court to fashion a rule that a party cannot point out to the court that another party's argument is inapplicable to the facts of the case. We decline to interpret La. C.C.P. art. 966(F) in such a manner.

Motion for New Trial

The standard of review of a denial of a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion. City of Baton Rouge v. Douglas, 2016-0655 (La. App. 1 Cir. 4/12/17), 218 So.3d 158, 163 n.5. A new trial shall be granted when the judgment appears clearly contrary to the law and the evidence. La. C.C.P. art. 1972 ; Porche v. Winn-Dixie Louisiana, Inc., 1993-2075 (La. App. 1 Cir. 10/7/94), 644 So.2d 699, 702, writ denied, 1994-2643 (La. 12/16/94), 648 So.2d 394. When a motion for new trial is filed, it is the mover's burden to prove to the trial court that he is entitled to a new trial for one of the grounds listed in the Code of Civil Procedure. Id.

Given our above opinion that the trial court correctly granted summary judgment in this matter, Ms. Jackson did not carry her burden that she was entitled to a new trial.

CONCLUSION

For the above and foregoing reasons, the August 2, 2016 judgment on the motion for summary judgment and the February 21, 2017 judgment on the motion for new trial are affirmed. All costs of this appeal are assessed against Bridget Jackson.

AFFIRMED.

Higginbotham, J. concurs. TMH

Holdrige J. concurs with reasons

HOLDRIDGE, J., concurs.

I concur in the result. I do think that the mover, ACME, raised a new legal theory in its reply memorandum, which the plaintiff was not given an opportunity to respond. It would have been the better practice in such a situation for the trial court to continue the hearing on the motion for summary judgment and allow Ms. Jackson an opportunity to rebut the new legal argument raised in ACME'S reply memorandum. However, since this court reviews a motion for summary judgment de novo, Ms. Jackson was given a full opportunity to brief the new legal argument raised in the mover's reply memorandum and this court was able to give a full review of the issue on appeal.

      First Guard issued a non-trucking liability policy to cover when a truck was driving bobtail (without a trailer attached) or was operating solely for personal use.

      Ms. Jackson has filed a supplemental and amending petition adding two other defendants, who are not the subject of this appeal.

      Congress dissolved the ICC when it passed the Interstate Commerce Commission Termination Act of 1995 and replaced it with, among other agencies, the Federal Motor Carrier Safety Administration ("FMCSA"). See Pub. L. No. 104-88, 109 Sta. 803 (codified at 49 U.S.C. §§ 13101 -14901 ). When the ICC was abolished in 1995, its authority to regulate motor carriers was transferred to the Department of Transportation. John Deere Ins. Co. v. Nueva, 229 F.3d 853, 860 (9th Cir. 2000), cert. denied, 534 U.S. 1127, 122 S.Ct. 1063, 151 L.Ed.2d 967 (2002). Some of the cases relied on by the parties refer to the ICC. As such, this court will refer to either the ICC or FMCSA in its discussion even though the FMCSA currently administers the regulations at issue here.

      The Motor Carriers Act requires that a policy include a MCS-90 endorsement that covers a judgment against a carrier for the negligence of a motor vehicle. 49 U.S.C. § 13906(a)(1) & (f). Pursuant to this authority, the FMCSA promulgated the MCS-90 endorsement, which states that the insurer must pay within certain limits of liability any final judgment against the insured for liability resulting from the negligent operation of motor vehicles. 49 C.F.R. § 387.15.

      By 2005 La. Acts No. 205, effective January 1, 2006, La. C.C.P. art. 2083 was amended to remove the longstanding provision that interlocutory judgments that "may cause irreparable harm" are appealable. An interlocutory judgment is now appealable only when expressly provided by law. La. C.C.P. art. 2083(C). Accordingly, the denial of a new trial is not generally appealable. McKee, 964 So.2d at 1013 n.8.

      Louisiana Code of Civil Procedure Article 966 was amended by La. Acts 2015, No. 422, and was effective January 1, 2016, so the amendment applies in this case since the motion for summary judgment was filed on May 19, 2016.

      Ms. Jackson relies upon language in Mendoza to claim that ACME is vicariously liable for the actions of Mr. Wise. However, we find Mendoza distinguishable from the facts of this case. In Mendoza, the driver was transporting goods pursuant to a lease arrangement between a carrier-lessee and an owner-lessor. (Although there was an issue as to the lease since the owner-lessee had to borrow another truck for the actual trip, the driver was in the act of transporting goods for the carrier-lessee at the time of the accident). Mendoza, 2016 WL 915297 at *1. In the present case, it is undisputed that Mr. Wise was not transporting goods on behalf of ACME at the time of this accident.


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    VOICE OF the EX-OFFENDER, Kenneth Johnson, Bruce Reilly, Dwight Anderson, Randy Tucker, Bill Vo, Huy Tran, Checo Yancy, Ashanti Witherspoon, and others similarly situated v. STATE of Louisiana; John Bel Edwards, Governor of Louisiana; and Tom Schedler, Secretary of State of Louisiana
    NO. 2017 CA 1141
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 13, 2018 Rehearing Denied April 27, 2018 Rehearing Denied May 9, 2018
    William P. Quigley, Ronald Wilson, Anna Lellelid, Ilona Maria Prieto, New Orleans, LA, Attorneys for Plaintiffs-Appellants, Voice of the Ex-Offender, et al.
    Denise Debra Lieberman, Donita Judge, Jennifer Lai-Peterson, Andrew Hairston, Washington, DC, Lani B. Durio, Merietta Spencer Norton, Cecelia R. Cangelosi, Baton Rouge, LA, Attorneys for Defendant-Appellee, Tom Schedler, in his official capacity as Louisiana Secretary of State
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

This appeal involves a constitutional challenge relating to implementing statutes that restrict the voting rights of convicted felons in Louisiana.

BACKGROUND

The pertinent constitutional provision at issue is found in Article 1, Section 10(A) of the 1974 Louisiana Constitution, providing:

Right to Vote. Every citizen of the state, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended while a person is interdicted and judicially declared mentally incompetent or is under an order of imprisonment for conviction of a felony.

The text of Section 10(A) was adopted by the Louisiana Constitutional Convention on September 8, 1973, ratified by the people of Louisiana in an election held on April 20, 1974, and became effective on January 1, 1975. When the 1974 Constitution was adopted, the former provisions of the 1921 Constitution, that had permanently deprived persons of the right to vote upon the conviction of a felony, were repealed.

During the next few years, the Louisiana Legislature enacted an Election Code as authorized by La. Const. art. 11, sec. 1, to provide for the permanent registration of voters and the conduct of elections. The Code included relevant implementing statutes, La. R.S. 18:2(8) (as later re-designated pursuant to the statutory revision authority of the Louisiana State Law Institute) and La. R.S. 18:102(A)(1), that provide as follows:

La. R.S. 18:2. Definitions
As used in this Code, ...
(8) 'Under an order of imprisonment' means a sentence of confinement, whether or not suspended, whether or not the subject of the order has been placed on probation, with or without supervision, and whether or not the subject of the order has been paroled.
La. R.S. 18:102. Ineligible persons
A. No person shall be permitted to register or vote who is:
(1) Under an order of imprisonment, as defined in R.S. 18:2(8), for conviction of a felony; ...

It is the implementation of La. R.S. 18:102(A)(1) and La. R.S. 18:2(8) that is being challenged in this case, as an unconstitutional infringement on the right to vote that is guaranteed by La. Const. art. 1, sec. 10 (A). The constitutional challenge was brought by plaintiffs, a Louisiana-based nonprofit advocacy group known as the Voice of the Ex-Offender ("VOTE"), along with formerly incarcerated felons, Kenneth Johnson, Bruce Reilly, Dwight Anderson, Randy Tucker, Bill Vo, Huy Tran, Checo Yancy, and Ashanti Witherspoon. On July 1, 2016, plaintiffs filed a class action petition for declaratory judgment and injunctive relief against defendants, the State of Louisiana, the Governor of Louisiana, John Bel Edwards, and the Louisiana Secretary of State, Tom Schedler, who is Louisiana's chief elections officer. The State of Louisiana and Governor John Bel Edwards were dismissed as defendants after filing various exceptions, leaving Secretary Schedler, in his official capacity, as the sole defendant.

The petition alleged that the individual plaintiffs are all convicted felons on probation or parole, and that their fundamental right to vote, guaranteed by La. Const. art. 1, Sec. 10 (A), was being violated, in that they could not vote even though they were no longer actually imprisoned. Plaintiffs also claimed that thousands of Louisiana citizens in similar circumstances are being illegally disenfranchised by the unconstitutional restrictions contained in Louisiana's implementing statutes, La. R.S. 18:2(8) and La. R.S. 18:102(A)(1). Thus, in addition to declaratory and injunctive relief, plaintiffs' petition requested that the trial court certify a class of similarly situated convicted felons.

On September 29, 2016, Secretary Schedler filed a motion for summary judgment, relying on the transcripts of the 1973 Constitutional Convention for support of the fact that the definition of the phrase "under an order of imprisonment for conviction of a felony," as it is used in La. Const. art. 1, sec. 10 (A), was intended to include persons on probation and parole, and therefore, the implementing statutes did not unconstitutionally restrict the voting rights of convicted felons. On the same day, plaintiffs also filed a motion for class certification. The trial court dealt with the class certification issue first and, after a hearing, the trial court signed a judgment denying class certification on November 15, 2016. No appeal was taken from that interlocutory judgment.

On January 13, 2017, plaintiffs filed a cross-motion for summary judgment and submitted an affidavit by the founder of VOTE in support of their motion, seeking a declaration claiming that they are being unconstitutionally disenfranchised of their fundamental right to vote. A hearing on the cross-motions for summary judgment was held on March 13, 2017. In their cross-motions, plaintiffs and Secretary Schedler agreed that there are no material issues of fact in dispute, and that only an issue of law regarding the constitutionality of the implementing statutes was at issue. In an amended judgment signed by the trial court on August 23, 2017, the trial court denied plaintiffs' motion, granted Secretary Schedler's motion, and expressly dismissed plaintiffs' claims with prejudice, ruling that "under an order of imprisonment" is always there for convicted felons on probation or parole and the plain language of the constitution and the implementing statutes prohibits plaintiffs from voting.

The plaintiffs appealed, urging three assignments of error that: (1) the trial court erred in failing to discern the plain meaning of La. Const. art. 1, sec. 10 (A) and harmonizing that provision with La. Const. art. 1, sec. 20 ; (2) the trial court erred in failing to find that La. R.S. 18:2(8) and La. R.S. 18:102(A)(1) are unconstitutional because they fail the strict scrutiny test and unconstitutionally infringe on the fundamental right to vote; and (3) the trial court erred in failing to certify the class or hear evidence in support of class certification.

In addition to the parties' briefs, several motions for leave to file amicus curiae briefs were filed in this court. In accordance with Uniform Rules-Courts of Appeal, Rule 2-12.11, this court granted leave allowing for the following amicus curiae briefs to be filed by: (1) the Louisiana Attorney General, Jeff Landry, in support of defendant; (2) the NAACP Legal Defense & Educational Funds, Inc., the Sentencing Project, & the Southern Poverty Law Center in support of plaintiffs; (3) the Louisiana Constitutional Law and History Scholars in support of plaintiffs; (4) the American Probation and Parole Association in support of plaintiffs; and (5) the Historians, Walter C. Stern, et al, in support of plaintiffs. We have considered the amicus curiae briefs only to the extent that they covered issues actually raised by the parties on appeal. See Barfield v. Bolotte, 2015-0847 (La. App. 1st Cir. 12/23/15), 185 So.3d 781, 784, writ denied, 2016-0307 (La. 5/13/16), 191 So.3d 1058.

LAW AND ANALYSIS

The facts of this case are not in dispute; thus, we are faced with the resolution of a purely legal issue. On legal issues, an appellate court gives no special weight to the findings of the trial court, but instead exercises its constitutional duty to review questions of law and render a judgment on the record. City of Baker School Bd. v. East Baton Rouge Parish School Bd., 99-2505 (La. App. 1st Cir. 2/18/00), 754 So.2d 291, 292-93. Appellate review of questions of law is simply to determine whether the trial court was legally correct. LaCombe v. McKeithen, 2004-1880 (La. App. 1st Cir. 8/30/04), 887 So.2d 48, 51, writ denied, 2004-2240 (La. 9/2/04), 882 So.2d 588.

The burden of proving that an act of the legislature is unconstitutional is on the party attacking the act. Caddo-Shreveport Sales and Use Tax Com'n v. Office of Motor Vehicles through the Dept. of Public Safety and Corrections, 97-2233 (La. 4/14/98), 710 So.2d 776, 779. When a constitutional challenge is made, the question is whether the constitution limits the legislature, either expressly or impliedly, from enacting the statute at issue. Id., at 780. When a statute conflicts with a constitutional provision, the statute must fall. Id. The burden on plaintiffs in this case is heavy. It is not enough to show that the statutes' constitutionality is fairly debatable; it must be shown clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute. Hite v. Larpenter, 2004-1821 (La. App. 1st Cir. 9/23/05), 923 So.2d 140, 145, writ denied, 2005-2255 (La. 3/10/06), 925 So.2d 511.

When deciding whether a particular legislative enactment is unconstitutional, the Louisiana Supreme Court has stated that it is not the court's duty to determine the wisdom behind the enactment of the legislation. M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371 (La. 7/1/08), 998 So.2d 16, 34. So-called "policy considerations" are not relevant to the decision, as such considerations are more appropriately presented to the legislature, in the first instance, when the pros and cons of a proposed law are being debated. Id. It is well settled that statutes are presumed constitutional unless fundamental rights, privileges, and immunities are involved. Caddo-Shreveport Sales, 710 So.2d at 779.

In seeking to discover constitutional intent, we are guided by many of the same rules followed in interpreting laws. Caddo-Shreveport Sales, 710 So.2d at 780. When a constitutional provision is clear and unambiguous, and its application does not lead to absurd consequences, it must be interpreted as written without further interpretation in search of its intent. See La. Civ. Code art. 9. When a provision is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. See La. Civ. Code art. 10.

The United States Supreme Court has long held that convicted felons may be excluded from the right to vote.

Richard son v. Ramirez, 418 U.S. 24, 54, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). In La. Const. art. 1, sec. 10 (A), the meaning of "under an order of imprisonment" is certain. A convicted felon serving their term of probation or parole is clearly under an order of imprisonment. This is the only interpretation consistent with the purpose of the law. The fact that a convicted felon is not in prison is irrelevant. Convicted felons on parole and/or probation are still in a "custodial" setting under an order of imprisonment, as they are still serving a portion of a criminal sentence. State v. Draughter, 2013-0914 (La. 12/10/13), 130 So.3d 855, 867. While voting is a fundamental right under the Louisiana Constitution, the Louisiana Constitution specifically limits the fundamental right to vote while convicted felons are under an order of imprisonment. Moreover, even if we were to apply a strict scrutiny analysis as plaintiffs would have this court conduct, there is no question that the State has a compelling interest in protecting the integrity of voter registration rolls and in regulating convicted felons still under the State's supervision. Any further debate on the issue is a policy matter best left for the legislature, which has already made its intent clear on this matter when it enacted the implementing statutes, La. R.S. 18:2(8) and La. R.S. 18:102(A)(1).

Additionally, we find no merit to plaintiffs' argument that there is some conflict between La. Const. art. 1, sec. 10 (A) and La. Const. art. 1, sec. 20, which allows for restoration of the full rights of citizenship upon termination of state and federal supervision following a conviction for any offense. Under general principles of constitutional construction, a more detailed provision prevails over a more general provision addressing the same subject matter, and the latest expression of the will of the people prevails over previously enacted conflicting provisions. See Malone v. Shyne, 2006-2190 (La. 9/13/06), 937 So.2d 343, 352. To the extent that Article 1, Section 20, may be construed to conflict with Article 1, Section 10(A), the latter, a more recent and more specific provision, prevails. State ex rel. Moreau v. Castillo, 2007-1865 (La. App. 1st Cir. 9/24/07), 971 So.2d 1081, 1083, writ denied, 2007-1900 (La. 9/28/07), 964 So.2d 349, cert. denied, 552 U.S. 1110, 128 S.Ct. 896, 169 L.Ed.2d 748 (2008).

As for plaintiffs' final assignment of error concerning the failure of the trial court to certify the class as requested, we find that the decision on the merits of the dispositive cross-motions for summary judgment rendered all class certification issues moot. See Clark v. Shackelford Farms Partnership, 38,749 (La. App. 2d Cir. 8/18/04), 880 So.2d 225, 228. A "moot" case is one that seeks a judgment or decree which, when rendered, can give no practical relief. Chavers v. Chavers, 411 So.2d 490, 491 (La. App. 1st Cir. 1982). Appellate courts do not give opinions on moot questions or abstract propositions from which no practical results will be derived. Id. Obviously, our decision to affirm the trial court's judgment dismissing plaintiffs' claims renders the issue of class certification no longer viable and therefore, moot.

CONCLUSION

Plaintiffs failed to meet their heavy burden of proving that the implementing statutes are unconstitutional. The plain and unambiguous language of La. Const. art. 1, sec. 10 (A) is clear that a convicted felon "under an order of imprisonment" includes time spent on probation and parole. The trial court was therefore correct to rule in favor of Secretary Schedler and against plaintiffs on their cross-motions for summary judgment. Plaintiffs' understanding of the constitutional phrase as meaning only physical imprisonment would lead to absurd results, because it disregards that a person can legally be under an order of imprisonment without being physically in prison. For all these reasons, the trial court's judgment is affirmed. All costs of this appeal are assessed to plaintiffs-appellants.

APPEAL MAINTAINED; JUDGMENT AFFIRMED.

Holdridge J. agrees in part & dissents in part

HOLDRIDGE, J., agreeing in part and dissenting in part

I agree in part and dissent in part and would remand for further proceedings. I agree with the trial court that a partial summary judgment should issue holding that under Article 1, Section 10(A) of the Louisiana Constitution and La. R.S. 18:2(8), a person who is convicted of a felony and sentenced to a term of imprisonment is "under an order of imprisonment" even after he is paroled. Therefore, that person does not have the right to register to vote or vote in accordance with La. R.S. 18:102(A)(1).

However, I disagree that the state carried its burden of proving that there are no genuine issues of material fact and that as a matter of law La. R.S. 18:2(8) is constitutional and does not conflict with Article 1 Section 10(A) of the Constitution as to defendants on probation. I would deny the summary judgment in part and remand to the trial court for a trial to determine whether, under a suspended sentence, does the "order of imprisonment" begin when the sentence is imposed and the defendant is placed on probation or does the "order of imprisonment" begin when the defendant's probation is revoked and the trial court sentences the defendant to a prison term for violating his probation. Additionally, if, after the probation revocation hearing, the defendant is sentenced to a term of imprisonment for violating his probation less than the suspended sentence originally given by the trial court, are his voting rights restored after serving the lesser sentence of imprisonment or is voting prohibited until the end of the original suspended sentence?

For these reasons, and due to the fact that a person's voting privilege is a fundamental right, I would remand this matter for a full evidentiary trial to determine if there is any conflict between Article 1, Section 10(A) of the Louisiana Constitution and La. R.S. 18:2(8) as applied to defendants on probation under a suspended sentence.

      See Fox v. Municipal Democratic Executive Committee of City of Monroe, 328 So.2d 171, 174 (La. App. 2d Cir.) (per curiam), cert. denied, 328 So.2d 893 (La. 1976).

      When the trial court finds that the action should not be maintained as a class action, the action may continue between the named parties. See La. Code Civ. P. art. 592(A)(3)(c). The November 15, 2016 judgment denying class action status is an interlocutory judgment. An interlocutory judgment is appealable only when expressly provided by law. La. Code Civ. P. art. 2083(C). However, because La. Code Civ. P. art. 592(A)(3)(c) expressly provides jurisdiction to entertain an interlocutory appeal from the denial of a class certification, plaintiffs could have appealed at that time. See Davis v. Jazz Casino Co., L.L.C., 2003-0276 (La. 6/6/03), 849 So.2d 497, 498 (per curiam). Instead, in this case plaintiffs chose to take an unrestricted appeal from the final judgment rendered after the hearing on the cross-motions for summary judgment, thereby entitling plaintiffs to a review of all adverse interlocutory rulings prejudicial to them, in addition to the review of the correctness of the final judgment from which they have taken the appeal. See Sellers v. El Paso Indus. Energy, L.P., 2008-403 (La. App. 5th Cir. 2/10/09), 8 So.3d 723, 731. Furthermore, we find little justification for restricting a party's right to appeal class certification to the period immediately following the trial court's initial ruling thereon, since the trial court may alter, amend, or recall its initial ruling on certification at any time. See La. Code Civ. P. art. 592(A)(3)(d). See also Sutton Steel & Supply, Inc. v. BellSouth Mobility, Inc., 2007-146 (La. App. 3d Cir. 12/12/07), 971 So.2d 1257, 1263, writ denied, 2008-0094 (La. 3/14/08), 977 So.2d 931.

      The amended judgment was filed into the appellate record on September 8, 2017, as a result of this court's show cause order noting that the original March 28, 2017 judgment lacked appropriate decretal language by failing to dismiss any party. Since the appellate record has now been supplemented with a valid final judgment that meets this court's decretal language criteria, we maintain this appeal. See Jenkins v. Recovery Technology Investors, 2002-1788 (La. App. 1st Cir. 6/27/03), 858 So.2d 598, 600.

      We note that Section 10 was amended after Section 20 was enacted, and the specific wording of Section 10 (A) was not changed.


text:
    Rita BROWN v. TERREBONNE PARISH SHERIFF'S OFFICE, Sheriff Jerry J. Larpenter, and XYZ Insurance Company
    Sommer Brown v. Terrebonne Parish Sheriff's Office, Sheriff Jerry J. Larpenter, and XYZ Insurance Company
    NO. 2017 CA 1305 NO. 2017 CA 1306
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 13, 2018 Rehearing Denied May 11, 2018
    Rita Brown, Thibodaux, LA, Plaintiff-Appellant, In Proper Person
    Sommer Brown, Thibodaux, LA, Plaintiff-Appellant, In Proper Person
    William F. Dodd, W. Seth Dodd, Houma, LA, Attorneys for Defendant-Appellee, Terrebonne Parish Sheriff, Honorable Jerry J. Larpenter
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

Pro se plaintiffs-appellants, Rita and Sommer Brown, attempt to appeal a judgment on the merits dismissing their consolidated claims seeking damages for false arrest. However, because Rita and Sommer's appeals were dismissed by the trial court for non-payment of appeal costs, the initial and primary issue is whether this court has jurisdiction to maintain these consolidated appeals.

FACTS AND PROCEDURAL HISTORY

On December 16, 2014, Rita and Sommer Brown filed separate actions against the Terrebonne Parish Sheriff's Office, Sheriff Jerry J. Larpenter, and an unnamed insurance company, seeking damages for false arrests. The arrests were made pursuant to outstanding warrants issued due to Rita and Sommer's failure to appear at a judgment debtor rule concerning a debt owed to R.V. Cazayoux, L.L.C. The separate lawsuits were consolidated in the trial court on April 9, 2015. On May 7, 2015, the Sheriff's Office was dismissed from the litigation pursuant to a consent judgment.

The matter proceeded to a bench trial against Sheriff Larpenter on October 19, 2016, and the trial court ultimately ruled in favor of Sheriff Larpenter, dismissing all claims made by Rita and Sommer in a judgment signed on November 7, 2016. Although Rita and Sommer were both represented by counsel at trial, on December 7, 2016, they each filed separate pro se appeals from the November 7, 2016 judgment. In their pro se motions for appeal, both Rita and Sommer acknowledged that the clerk of court had mailed notice of the November 7, 2016 judgment. We further note that a supplement to the appellate court record concerning all service returns indicates that notice of the judgment on the merits was served on Rita and Sommer's counsel of record on November 16, 2016. The trial court signed orders granting the pro se appeals on December 12, 2016, and then inexplicably signed another order granting an appeal to both Rita and Sommer, filed by their counsel of record, on January 3, 2017. A notice of appeal was issued on December 14, 2016, for the pro se appeals and on January 4, 2017, for the counseled appeal.

On February 14, 2017, Sheriff Larpenter filed a motion in the trial court to dismiss all of the appeals for non-payment of appeal costs. The initial hearing on the motion to dismiss the appeals was scheduled for March 22, 2017. The supplement to the appellate court record regarding all service returns indicates that notice of the March 22, 2017 hearing was served on Rita and Sommer through their counsel of record on March 1, 2017. At the hearing, counsel for Sheriff Larpenter was present, but neither Rita or Sommer, nor their counsel made an appearance. Counsel for Sheriff Larpenter indicated to the trial court that while some appeal costs had been paid, there was a remaining amount owed to the court reporter, and therefore, Sheriff Larpenter's counsel moved to continue the hearing to allow notice to Rita and Sommer of the outstanding amount due. The record reflects that the notice of the amount due was mailed by the court reporter to Rita, with the attached invoice, via certified mail on March 24, 2017. The trial court continued the matter to April 21, 2017; however, the appellate record does not contain evidence that any notice regarding the new hearing date on the motion to dismiss appeals was sent to either Rita or Sommer, or their counsel of record.

At the April 21, 2017 hearing, counsel for Sheriff Larpenter was present along with his sole witness, the Clerk of Court for Terrebonne Parish, Theresa Robichaux, who testified that Rita and Sommer had an outstanding balance due of $341.25 for appeal costs. Rita and Sommer made no appearance at the hearing. Their counsel of record was also absent. Following a closing statement made by Sheriff Larpenter's counsel, including information that Rita and Sommer's counsel had waived his appearance at the hearing due to his clients' nonpayment of costs, the trial court dismissed all appeals related to the judgment signed on November 7, 2016. The judgment dismissing all appeals was signed by the trial court on April 21, 2017. The supplemented appellate record contains a note that counsel for Rita and Sommer was notified of the judgment on May 3, 2017, but was never actually served with a copy of the judgment dismissing the appeals.

On May 19, 2017, Rita filed a pro se "Motion to Set Aside Hearing" and Sommer filed an identical motion in the consolidated action on the same date. Rita and Sommer indicated that the reason they were asking the trial court to set aside the dismissal of their appeals and to grant a hearing was because "they were not personally served or notified by [the trial] court [or] personally and through [their] attorney of record ... of the trial judgment... rendered on October [20], 2016, and signed on November 7, 2016." The trial court denied Rita and Sommer's motion on May 22, 2017. A week later, on May 31, 2017, Rita and Sommer filed pro se notices of appeal that are identical to their appeals filed on December 7, 2016, seeking appeal of the November 7, 2016 judgment.

On June 11, 2017, the trial court signed the orders granting the pro se appeals, but the order does not reference the date of the judgment being appealed. A Notice of Appeal was issued on June 14, 2017, specifically referencing the November 7, 2016 judgment as requested in Rita and Sommer's motions. The appeals were consolidated for consideration when lodged with this court. Proof of payment of the outstanding appeal costs by both Rita and Sommer appear in the appellate record, recorded in June, July, and September 2017.

On September 26, 2017, this court issued an Amended Rule to Show Cause Order to the parties, ex proprio motu , concerning whether the consolidated appeals should be dismissed, since the pro se appeals filed by Rita and Sommer on May 31, 2017, both related to the November 7, 2016 judgment on the merits, and therefore, appeared to have been untimely filed pursuant to La. Code Civ. P. art. 2087. In a footnote on the Rule to Show Cause Order, this court noted that the prior motions for appeal regarding the November 7, 2016 judgment were apparently dismissed by the trial court on April 21, 2017. Additionally, Sheriff Larpenter filed a motion in this court to dismiss Rita and Sommer's appeals, again asserting that the appeal costs were not timely paid. Rita and Sommer responded, claiming that they were confused as to the amount they were required to pay for appeal costs and they had experienced a number of tragedies in their family during the time that they filed their motions for appeal. Rita and Sommer also indicated that they were never notified of the April 21, 2017 hearing regarding the motion to dismiss their appeals, which was ultimately granted by the trial court. The rule to show cause and Sheriff Larpenter's motion to dismiss were referred to this panel assigned to hear these consolidated appeals.

JURISDICTION

Louisiana Code of Civil Procedure article 2087 provides that a devolutive appeal may be taken within sixty days of the expiration of the delay for applying for a new trial, or if no application has been filed timely, then within sixty days of the date of the mailing of the notice of the trial court's refusal to grant a timely application for a new trial. Rita and Sommer's original motions for appeal of the November 7, 2016 judgment were timely filed on December 7, 2016. Further, we note that the supplementation of the appellate court record shows that personal service of the November 7, 2016 judgment was made on Rita and Sommer's counsel of record on November 16, 2016. Thus, while Rita and Sommer claim that they were never personally notified of the original November 7, 2016 judgment in their motion to set aside the trial court's dismissal of their appeals, the record does not support their claims in that regard. It is well settled that notice to an attorney of record is notice to the client.

Jones v. Rodrigue, 2000-0899 (La. App. 1st Cir. 11/3/00), 771 So.2d 275, 281. Further, the record does not disclose any indication to the court that Rita and Sommer were no longer being represented by counsel of record at that time.

More troublesome, however, is the challenge made by Rita and Sommer concerning notice of the new hearing date set for April 21, 2017, on Sheriff Larpenter's motion to dismiss Rita and Sommer's appeals for nonpayment of appeal costs. Due to the pro se status of Rita and Sommer in these consolidated appeals, it is difficult to ascertain the intent of their arguments in brief. Their show cause response is directed to the lack of notice of the April 21, 2017 hearing date, and their brief on the merits appears solely directed to the original judgment of November 7, 2016, and the alleged liability of Sheriff Larpenter for false arrest damages.

In light of the pro se status of Rita and Sommer on appeal, and the policy favoring appeals, we find that Rita and Sommer's pro se appeals filed shortly after the denial of their motion to set aside the hearing on the dismissals were obviously directed at the April 21, 2017 judgment dismissing their original appeals. Because Rita and Sommer, and their counsel of record, were clearly not served with notice of the new hearing date on April 21, 2017, we will maintain these consolidated appeals despite a misstatement of the date of the judgment intended to be appealed. See Phi Iota Alpha Fraternity, Inc. v. Schedler, 2014-1620 (La. App. 1st Cir. 9/21/15), 182 So.3d 998, 1002. See also State, Dept. of Transp. & Development v. Estate of Summers, 527 So.2d 1099, 1101-02 (La. App. 1st Cir. 1988). Moreover, this court has held that the dismissal of an appeal by a trial court is a final judgment that can be appealed. Williamson v. Serv Tech Specialists of Baton Rouge, Inc., 521 So.2d 666, 668 n. 2 (La. App. 1st Cir. 1988).

Due to the lack of evidence concerning service on Rita and Sommer informing them of the new hearing date on April 21, 2017, we find that the trial court improperly dismissed Rita and Sommer's appeals. The April 21, 2017 judgment of dismissal is absolutely null and must be vacated. See La. Code Civ. P. arts. 2002(A)(2) and 2164. See also Pope v. Roberts, 2013-1407 (La. App. 1st Cir. 4/16/14), 144 So.3d 1059, 1064-65 n. 3 ("When the appellate court notices an absolute nullity, the court is likewise empowered to vacate or correct the judgment on its own motion"); and Tunnard v. Simply Southern Homes, L.L.C., 2007-0945 (La. App. 1st Cir. 3/26/08), 985 So.2d 166, 168 ("A judgment rendered against a defendant who has not been served with process as required by law is an absolute nullity.") Thus, we deny Sheriff Larpenter's motion to dismiss these consolidated appeals. Finding that we have jurisdiction over these consolidated appeals that were timely filed, we recall the rule to show cause order, maintain the appeals, and now consider the merits of the November 7, 2016 judgment.

DISCUSSION ON THE MERITS

Rita and Sommer maintain that they were falsely arrested because they were never served with the judgment debtor rule, and thus, were unaware that they were required to be in court on November 22, 2013, to answer the claims of R.V. Cazayoux, L.L.C. At the trial of Rita and Sommer's false arrest claims on October 19, 2016, a process server for Terrebonne Parish, Deputy Howard Andrews, testified that he personally served Rita and Sommer on November 4, 2013, at 11:40 a.m. at their residence. Deputy Andrews indicated that both Rita and Sommer identified themselves and he gave them the judgment debtor citation requiring them to be in court to answer the claims on November 22, 2013. Conversely, both Rita and Sommer testified that they were never served and they were both at work that day, although a witness for Sommer's place of employment testified that there was no record of Sommer being at work on November 4, 2013, and she was not paid for that day. Rita conceded that someone at her house might have received the papers from Deputy Andrews or her attorney of record may have been served. However, Rita and Sommer steadfastly claimed that they did not know to show up in court for the judgment debtor rule because they did not know about the court date. They likewise stated that they were unaware of any warrants issued for their arrest after they did not appear in court.

Deputy Andrews' supervisor, Captain David Gros, Jr., testified that he had never received any complaints about Deputy Andrews' work as a process server. He also stated that he had not received a formal complaint from Rita and Sommer, but he remembered a conversation about them saying they had not been served. Captain Gros verified that no disciplinary action had been taken toward Deputy Andrews, and he took Deputy Andrews' word that he had personally served two females identifying themselves as Rita and Sommer as documented.

Captain Thomas Glover was the deputy who executed the warrants for Rita and Sommer's arrests. He arrested Sommer on December 12, 2013, at her residence. He testified that he initially went to Rita and Sommer's residence on December 9, 2013, but was unsuccessful in making contact with anyone at the residence. He left his business card at that time. He followed up on December 12th, and was able to arrest Sommer at that time. According to Deputy Glover, a male who identified himself as Rita's husband answered the door after he knocked. Rita's husband indicated that both Rita and Sommer were at work, but Deputy Glover asked if he could check the residence for their presence. He was given permission to search the residence and he found Sommer hiding in a closet. Deputy Glover removed Sommer from the closet, handcuffed her, and arrested her on the outstanding warrant. Sommer informed him that she did not know anything about the missed court date, but Deputy Glover transported Sommer to the Terrebonne Parish jail where she was booked on a failure to appear charge. Deputy Glover contacted Rita through a resource officer at the school where Rita was working. Rita called Deputy Glover and he informed her of the arrest warrant, the arrest of Sommer, and an opportunity to turn herself in at the jail rather than him coming to her place of employment. Rita went to the Sheriff's Office the next day, and that is when she was arrested and charged with failure to appear. Both Rita and Sommer bonded out of jail on the same day as their arrests. Deputy Glover testified that he did not execute Rita and Sommer's arrest warrants any differently than he normally did, and he was not disciplined for his actions connected with the arrests.

Rita and Sommer testified about very different experiences concerning their arrests. Sommer stated that on December 12, 2013, she was not aware of any warrant for her arrest. She testified that Deputy Glover found her hiding in a closet and she was afraid, because she heard the deputy yelling about where they were and how he was going to find Rita. Sommer also claimed that her arrest was made very forcefully and she was pushed outside with neighbors watching the "big commotion." Rita testified that Deputy Glover harassed her at work about turning herself in, so she went to the Sheriff's Office to make a complaint and that was when she was arrested. She stated that she pleaded with Deputy Glover to not arrest her, because she was not aware of missing a court date. She claimed that she was embarrassed and humiliated and was eventually terminated from her teaching job over the incident.

After listening to all of the testimony and weighing the evidence offered, the trial court ruled in favor of Sheriff Larpenter, finding that Rita and Sommer were properly served on November 4, 2013, regarding the judgment debtor rule court date in the R.V. Cazayoux, L.L.C. matter. When Rita and Sommer failed to appear in court as summoned, the trial court found that their arrests were proper and that the arresting officer did nothing wrong. Consequently, the trial court dismissed Rita and Sommer's lawsuit and cast them with all costs.

This case involves credibility determinations on the part of the trial court made after the parties presented conflicting evidence on the central issue of service of process. An appellate court must not reverse a trial court's credibility determinations unless there is manifest error. If a reasonable factual basis exists, an appellate court may set aside a trial court's factual finding only if, after reviewing the record in its entirety, it determines the trial court was clearly wrong. See Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). Where factual findings are based on determinations regarding the credibility of witnesses, the trial court's findings of fact demand great deference and are virtually never manifestly erroneous or clearly wrong. Secret Cove, L.L.C. v. Thomas, 2002-2498 (La. App. 1st Cir. 11/7/03), 862 So.2d 1010, 1016, writ denied, 2004-0447 (La. 4/2/04), 869 So.2d 889. Even though an appellate court may feel its own evaluations and inferences are more reasonable than that of the trial court, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. See Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989) ; and Barham & Arceneaux v. Kozak, 2002-2325 (La. App. 1st Cir. 3/12/04), 874 So.2d 228, 240, writ denied, 2004-0930 (La. 6/4/04), 876 So.2d 87. Our thorough review of the record does not reveal any manifest error on the part of the trial court. Therefore, we affirm the trial court's dismissal of Rita and Sommer's lawsuit in the November 7, 2016 judgment on the merits.

CONCLUSION

For the assigned reasons, we deny the motion to dismiss, recall the rule to show cause order, and maintain the appeals. Additionally, we vacate the trial court's dismissal judgment dated April 21, 2017, and affirm the trial court's November 7, 2016 judgment on the merits in favor of Sheriff Larpenter. All costs of these consolidated appeals are assessed equally to plaintiffs-appellants, Rita and Sommer Brown, and defendant-appellee, Sheriff Jerry J. Larpenter.

MOTION TO DISMISS APPEALS DENIED; RULE TO SHOW CAUSE ORDER RECALLED; APPEALS MAINTAINED; APRIL 21, 2017 JUDGMENT VACATED; NOVEMBER 7, 2016 JUDGMENT AFFIRMED.

      This court, ex proprio motu , issued a rule to show cause order regarding the apparent untimeliness of the consolidated appeals. Following that order, the defendant/appellee filed a motion in this court to dismiss the plaintiffs/appellants' appeals for lack of jurisdiction. On December 11, 2017, both the rule to show cause and the motion to dismiss were referred to this panel, which is assigned these appeals.

      R.V. Cazayoux, L.L.C., obtained a judgment against Rita and Sommer and then intervened in these consolidated actions, seeking full payment on the past due amounts contained in the judgment. A stipulation was entered at the trial on the merits of these consolidated actions, stipulating that in the event that Rita and Sommer prevailed in their lawsuits against Sheriff Larpenter, the intervenor was entitled to have any judgment awarding damages to Rita and Sommer be apportioned to allow for the outstanding damages, attorney fees, and court costs to take precedence and priority over Rita and Sommer's recovery. The validity of the judgment against Rita and Sommer and the intervention are not at issue in these appeals.

      The appellate court record was supplemented with all available trial court service returns on March 5, 2018.

      According to counsel for Sheriff Larpenter, the return receipt for the certified letter was signed by Rita on March 28, 2017. While the record reflects that the return receipt was offered into evidence along with the letter and attached invoice, the appellate record does not contain a copy of the return receipt.

      Sheriff Larpenter's counsel indicated that he had a letter in his file from Rita and Sommer's counsel of record advising that he had informed Rita and Sommer that if they did not pay the costs, he would waive his appearance at the hearing. However, a copy of the letter is not in the appellate court record.

      The April 21, 2017 judgment contains a stamp dated April 24, 2017, that states: "Service Accepted-Citation and Other Notices Waived-All Other Rights Reserved".

      We note that Rita and Sommer's pro se briefs do not comply with Uniform Rules-Courts of Appeal, Rule 2-12.4, in numerous particulars: there are no specification of errors, the arguments are not confined strictly to the issues of the case, and there are no citations to the record or authorities relied upon. In the interest of justice, however, this court reads pro se filings indulgently and attempts to construe briefs as though assignments of error were properly raised. See Reed v. State, Dept. of Public Safety and Corrections, 2014-1468 (La. App. 1st Cir. 4/24/15), 2015 WL 1882725 *1 (unpublished opinion).

      Counsel for Sommer introduced a copy of a transaction summary for November 4, 2013, that appeared to show that Sommer worked with two customers in the afternoon that day, but when the trial court asked where the proof was that Sommer was working at the time of service in the morning, Sommer had no proof to offer.

      A sheriff's return reflecting service is considered prima facie correct and the party attacking it bears the burden of proving its incorrectness by a preponderance of the evidence. State ex rel. Dept. of Social Services, Office of Family Support, Support Enforce. Ser. v. Langlois, 2003-0849 (La. App. 1st Cir. 3/3/04), 874 So.2d 216, 217. In general, the uncorroborated testimony of the party attacking service, standing alone, is insufficient to rebut the presumption of prima facie correctness accorded the sheriffs return. Id. at 217-18. While the actual service returns concerning the judgment debtor rule are not in the record, we note that the parties stipulated that R.V. Cazayoux, L.L.C. obtained a judgment against Rita and Sommer for $10,760.00, plus interest and attorney fees.