source: Caselaw Access Project

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    The STATE of Louisiana and the Vermilion Parish School Board v. LOUISIANA LAND & EXPLORATION COMPANY, et al.
    17-755
    Court of Appeal of Louisiana, Third Circuit.
    December 20, 2017
   Donald T. Carmouche, Victor L. Marcello, John H. Carmouche, William R. Coenen, III, Brian T. Carmouche, Todd J. Wimberley, Ross J. Donnes, D. Adele Owen, Leah C. Poole, Caroline H. Martin, Christopher D. Martin, Talbot, Carmouche & Marcello, 17405 Perkins Road, Baton Rouge, LA 70810, (225) 400-9991, COUNSEL FOR PLAINTIFFS/RESPONDENTS: State of Louisiana, Vermilion Parish School Board

Jerold Edward Knoll, The Knoll Law Firm, L.L.C., 233 South Main St., Marksville, LA 71351, (318) 253-6200, COUNSEL FOR PLAINTIFFS/RESPONDENTS: State of Louisiana, Vermilion Parish School Board

Grady J. Abraham, Attorney at Law, 5040 Ambassador Caffery Parkway, Suite 200, Lafayette, LA 70502, (337) 234-4523, COUNSEL FOR PLAINTIFFS/RESPONDENTS: State of Louisiana, Vermilion Parish School Board

Calvin E. Woodruff, Jr., Attorney at Law, 220 South Jefferson Street, Abbeville, LA 70511, (337) 898-5777, COUNSEL FOR PLAINTIFFS/RESPONDENTS: State of Louisiana, Vermilion Parish School Board

Michael R. Phillips, Claire E. Juneau, Jeffrey J. Gelpi, Kean Miller LLP, 909 Poydras Street, Suite 3600, New Orleans, LA 70112, (504) 585-3050 COUNSEL FOR DEFENDANT/APPLICANT: Union Oil Company of California

L. Victor Gregoire, Alan J. Berteau, Kean Miller LLP, 400 Convention Street, Suite 700, Baton Rouge, LA 70802, (225) 387-0999, COUNSEL FOR DEFENDANT/APPLICANT: Union Oil Company of California

Robert E. Meadows, Carol M. Wood, Andrew M. Stakelum, King & Spaulding LLP, 1100 Louisiana, Suite 4000, Houston, TX 77002, (713) 751-3200, COUNSEL FOR DEFENDANT/APPLICANT: Union Oil Company of California

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.

GREMILLION, Judge.

The defendant-applicant, Union Oil Company of California (UNOCAL), seeks supervisory writs from the trial court's judgment denying its motion to compel discovery. For the following reasons, we deny the writ and affirm the trial court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves an oilfield contamination lawsuit that is governed by 2006 La. Acts No. 312, which enacted La.R.S. 30:29. The plaintiffs, the State of Louisiana (State) and the Vermilion Parish School Board (VPSB), filed suit against UNOCAL and other defendants, alleging that property owned by the State and managed by VPSB was damaged as a result of fifty-five years of oil and gas exploration activities. The plaintiffs' private law claims were tried by a jury in April and May 2015. The jury found UNOCAL liable for environmental damage but found no liability on the part of the other defendants.

In accordance with the provisions of Act 312, in August 2015, the trial court signed an order referring the case to the Louisiana Department of Natural Resources, Office of Conservation (LDNR) to develop a feasible plan for the remediation of the environmental damage on the plaintiffs' property. After conducting a two-week hearing, the LDNR issued a feasible remediation plan, which was subsequently adopted by the trial court. The judgment adopting the LDNR's plan is currently the subject of an appeal lodged with this court on September 13, 2017, docket number 17-830.

After the judgment was rendered regarding the remediation plan, the plaintiffs sought entry of a judgment on the jury's verdict regarding their private law claims. At a hearing held on April 11, 2017, the trial court denied the plaintiffs' request for the court to sign a "partial final judgment" on their private law claims. The trial court ruled that it would not sign a "final judgment" on the private law claims until after it ruled on the plaintiffs' claims for costs and attorney fees. Instead, on April 26, 2017, the trial court signed a "partial judgment" on the jury's verdict, dismissing various claims and theories of recovery against UNOCAL and its co-defendants and holding UNOCAL strictly liable to the plaintiffs in the amount of $1,500,000.00 for restoration of property damage. That judgment also reserves the plaintiffs' claims for costs and attorney fees. The plaintiffs state that their claims for costs and attorney fees will require extensive discovery and a three-day trial.

In May 2015, after the jury had rendered its verdict, the plaintiffs and UNOCAL each filed a motion for JNOV and new trial. After the trial court signed the judgment of April 26, 2017, the plaintiffs and UNOCAL re-urged their motions for JNOV and new trial. The trial court declined to rule on the motions for JNOV and new trial until after a hearing regarding the plaintiffs' motion for costs and attorney fees was held. The plaintiffs sought supervisory review of the trial court's decision to delay the hearing.

On July 25, 2017, this court granted the applicants' writ:

WRIT GRANTED AND MADE PEREMPTORY.
The trial court abused its discretion in deciding to conduct a hearing on attorney fees and costs before a final determination on the pending motions for a new trial and JNOV. We hereby vacate the trial court's rulings of April 11, 2017, April 26, 2017, and May 8, 2017. Judicial economy requires a determination on ultimate liability before the assessment of attorney fees and costs. Further, La.Code Civ.P. art. 2551 mandates that theses summary proceedings should be "conducted with rapidity." We remand this case and order the trial court to conduct a hearing on the pending motions for a new trial and JNOV within forty-five (45) days of the finality of this Order.
We grant the relators' [plaintiffs'] Motion to File a Supplemental Brief; we deny the Motion for Leave to File Amicus Curiae Brief filed by the State of Louisiana, through the Office of Conservation.

On August 31, 2017, a hearing was held on the motions for new trial and JNOV, the outcome of which is not known at this time. A hearing on attorney fees and costs was to be conducted after the trial court ruled on the motions.

Meanwhile, in response to discovery requests related to the motion for costs and attorney fees, VPSB, the plaintiff/respondent in the instant matter, produced 153 separate spreadsheets totaling 1,341 pages. UNOCAL complained, however, that VPSB converted the spreadsheets into non-searchable, static image files. Accordingly, UNOCAL filed a motion to compel production of the Microsoft Excel spreadsheets in its original electronic form. The motion was taken up on August 10, 2017, and subsequently denied. UNOCAL is now before this court on writs, seeking review of the trial court's ruling.

SUPERVISORY RELIEF

"The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b), which provides "Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs."

ON THE MERITS

The issue herein is one of first impression regarding La.Code Civ.P. arts. 1461 and 1462 and the production of electronically stored information. Neither party included a copy of the discovery request sent by UNOCAL to VPSB. According to UNOCAL, the following requests for production were included in the written discovery request:

Request for Production No. 2:
Produce any and all timesheets, time records, billing summaries, time summaries, and/or any other record that documents the actual time spent by any attorney, paralegal, or other legal paraprofessional for any work performed in connection with this litigation as counsel for Plaintiff or on behalf of counsel for Plaintiff.
Request for Production No. 3:
Produce all summaries, spreadsheets, calculations, or other documents that support, substantiate, or identify the amount of attorneys' fees for which you seek reimbursement pursuant to Act 312.
Request for Production No. 4:
Produce all documents that verify, support, substantiate, or identify the costs for which you seek reimbursement pursuant to Act 312.
Request for Production No. 18:
Produce all materials that support, relate to, or quantify any portion of your claim to recover costs of any kind or fees of any kind from UNOCAL or any other defendant in this case.

Before addressing the merits, UNOCAL discusses the concept of metadata, which is found in the native format of electronically stored information (ESI) and is not visible when a document is printed or converted to a static image file. Of importance to UNOCAL is 1) substantive metadata used to create a document or file, which reflects modifications to the document; 2) system metadata, which improves the ability to efficiently access, search, and sort a large number of documents; and 3) embedded metadata, which provides the ability to view the formulas underlying the output in each cell. Additionally, although a static image file of ESI is still searchable using optical character recognition software, UNOCAL urges that the ability to search is limited to the ability of the software to translate the static image file.

UNOCAL argues, first, that VPSB failed to produce the spreadsheets in the form in which they are ordinarily maintained (Excel spreadsheets), in violation of La.Code Civ.P. art. 1462. Louisiana Code of Civil Procedure article 1462(C) reads:

A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories of the request. If a request does not specify the form or forms for producing information, including electronically stored information, a responding party shall produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. When electronically stored information is produced, the responding party shall identify the specific means for electronically accessing the information.

UNOCAL also argues that VPSB failed to produce the spreadsheets in a reasonably useable form as required by Article 1462. Since Louisiana courts have not yet considered what constitutes "reasonably useable," UNOCAL avers that this court can rely on federal decisions involving analogous federal provisions as persuasive authority as well as the advisory committee notes to Fed. R. Civ. P. 34. See Hodges v. Southern Farm Bureau Cas. Ins. Co. , 433 So.2d 125 (La.1983).

The rule does not require a party to produce electronically stored information in the form it [sic] which it is ordinarily maintained, as long as it is produced in a reasonably useable form. But the option to produce in a reasonably useable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation . If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

Fed. R. Civ. P. 34, Advisory Committee Notes, 2006 Amendment, Subdivision (b)(emphasis added).

In the form in which the spreadsheets were produced, static image portable document format (PDF) files, UNOCAL complains that VPSB impermissibly removed the search capabilities of the Excel spreadsheets. UNOCAL cites Green v. Monarch Recovery Management, Inc. , 2014 WL 1631825 (S.D. Ind. 2014), wherein the defendants, in response to the plaintiff's motion to compel, provided the plaintiff with a PDF version of an Excel spreadsheet which was 1000 pages long. The plaintiff complained that the PDF version 1) did not sufficiently represent the original spreadsheet; 2) did not help identify a procedure adopted by the defendants to avoid erroneous debt collection practices; and 3) did not clearly demonstrate that the pages provided were from a spreadsheet sent from one defendant to another. As such, the plaintiff requested an unredacted spreadsheet to assess how the data was mixed. At the hearing on the motion, the defendants argued that an unredacted spreadsheet would identify the names, addresses, and social security numbers of 2,400 people, only one hundred of which were relevant to the matter. Although the parties agreed to produce the electronically stored material in paper or PDF format, the court found that the agreement was subject to modification when the format to which they agreed materially altered the usefulness or evidentiary value of the document. "One of the unique strengths of Excel software is the ability to implement calculations and formulae that are not evident in a PDF version, so merely a PDF imprint of the surface information is not sufficient. Further, the ability to search the spreadsheet is essential to its usefulness." Id. at *3. The motion to compel was granted, and the defendants were ordered to confidentially produce the entire unredacted spreadsheet.

In the instant case, UNOCAL complains that VPSB removed the search capabilities, leaving UNOCAL with the burden of converting the static image PDF files into a searchable text format using optical character recognition (OCR) software. UNOCAL refers to the testimony of Michael Bandemer, a computer forensics expert and the managing director of the electronic discovery and computer forensics practice with Berkely Research Group. Mr. Bandemer testified that errors occurred when he attempted to convert the PDF spreadsheets back into an electronic, searchable form. As such, he must manually review the spreadsheets and correct the errors. The burden, UNOCAL urges, makes little sense when VPSB can readily produce the spreadsheets in the Excel format.

UNOCAL also complains that VPSB impermissibly removed the embedded metadata, including formulae, from the spreadsheets. In Williams v. Sprint/United Management Co. , 230 F.R.D. 640 (D. Kan. 2005), the defendant was ordered to disclose electronic documents, i.e. Excel spreadsheets, as they were maintained in the ordinary course of business. Prior to producing the spreadsheets, the defendant used software to scrub the files to remove the metadata and did not provide a log of what information was scrubbed. The defendant reasoned that the metadata was irrelevant and contained privileged information. Also, the plaintiffs never requested that the metadata be included. The court subsequently ordered the defendant to show cause why it should not be sanctioned for failing to comply with the order. At the hearing, the defendant stated that the metadata was deleted to prevent the plaintiffs from recovering privileged and protected information and to limit the information to the pools from which the defendant made the decisions that were being litigated.

In its opinion, the court discussed in great detail the emerging standards of electronic discovery with regard to metadata and whether the standards articulate a presumption against the production of metadata as urged by the defendant. The court initially looked to Fed. R. Civ. P. 34, finding insufficient guidance therein and in the jurisprudence. It then focused on the Sedona Principles for Electronic Document Production.

In light of the proposed amendment to Rule 34, which adds "electronically stored information" as its own separate category, it is no longer necessary to focus on what constitutes a "document." With regard to metadata in general, the Court looks to Principle 12 and Comment 12.a. to the Sedona Principles. Based upon this Principle and Comment, emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata, but provide a clear caveat when the producing party is aware or should be reasonably aware that particular metadata is relevant to the dispute.
Based on these emerging standards, the Court holds that when a party is ordered to produce electronic documents as they are maintained in ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order. The initial burden with regard to the disclosure of the metadata would therefore be placed on the party to whom the request or order to produce is directed. The burden to object to the disclosure of metadata is appropriately placed on the party ordered to produce its electronic documents as they are ordinarily maintained because that party already has access to the metadata and is in the best position to determine whether producing it is objectionable. Placing the burden on the producing party is further supported by the fact that metadata is an inherent part of an electronic document, and its removal ordinarily requires an affirmative act by the producing party that alters the electronic document.

Id. at 652 (footnotes omitted). See also Dahl v. Bain Capital Partners, LLC , 655 F.Supp.2d 146 (D. Mass. 2009).

In the instant case, UNOCAL states that the ability to sort, filter, and rearrange the information at issue-$23 million dollars in attorney fees for nearly 40,000 hours of time spent by at least sixteen different attorneys, paralegals, and other legal staff-is crucial. Without the Excel spreadsheets, UNOCAL must manually enter all 1,341 pages of spreadsheets.

Next, UNOCAL argues that VPSB failed to establish that production of the Excel spreadsheets in native format is not reasonably accessible. UNOCAL asserts that pursuant to Article 1462, the burden is on VPSB, the responding party, to show that the electronically-stored information is not reasonably accessible due to the burden or expense of producing same. Instead, UNOCAL contends, VPSB improperly shifts the burden to UNOCAL to establish a need for production of the Excel spreadsheets in native format or relies on the unsubstantiated possibility that the spreadsheets contain privileged information.

In opposition, VPSB argues that UNOCAL did not request a preferred format for the production or request that the documents be produced in native format. VPSB directs this court to the following excerpts from the discovery requests:

Interrogatory No. 2:
Provide an itemized list of all attorneys' fees for which you seek reimbursement under Act 312. In your response, please include the name of each person who performed the legal services, the date(s) on which the legal services were performed, the amount of hours actually expended performing the legal services, whether the legal services were performed in the trial court or in the department , and a description of the legal services sufficient to identify whether the legal services attributed to producing that portion of the evidence that directly relates to the establishment of environmental damage. (emphasis added).
Request for Production No. 2:
Produce any and all timesheets, time records, billing summaries, time summaries, and/or any other record that documents the actual time spent by any attorney, paralegal, or other legal paraprofessional for any work performed in connection with this litigation as counsel for Plaintiff or on behalf of counsel for Plaintiff.

Additionally, VPSB points out that UNOCAL's definition of "document" includes the original or a copy of the information requested. In its timely response to UNOCAL's requests, VPSB produced the itemized lists in PDF format and Bates-labeled TCM/Time:00001-01341. The first spreadsheet, VPSB explains, identifies each person who worked on the case, the total time each person worked on the case, the total time each person worked on broad categories of the litigation, the total time spent on the broad categories, the hourly rate for each person, the total fee for each person, and the total fee for all persons. VPSB contends that everything UNOCAL requested is in the PDF charts in TCM/Time:00001-01341. According to VPSB, UNOCAL did not seek its Excel spreadsheets until after it received the charts, and by that time, the discovery deadline had expired. As such, UNOCAL "had to resort to alternative and flimsy arguments to support its alleged entitlement to the information." VPSB suggests that UNOCAL, with its extensive legal representation, has the resources to review the 1,341 pages produced by VPSB to support its billable hours in this matter.

Next, VPSB argues that the Excel spreadsheets contain attorney work product protected under La.Code Civ.P. art. 1424 and the trial court's prior rulings. Article 1424(A) reads:

The court shall not order the production or inspection of any writing, or electronically stored information, obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. Except as otherwise provided in Article 1425(E)(1), the court shall not order the production or inspection of any part of the writing, or electronically stored information, that reflects the mental impressions, conclusions, opinions, or theories of an attorney.

VPSB asserts that the Excel spreadsheets include metadata which may reflect conversations amongst its attorneys. VPSB maintains that at one time, the spreadsheets contained the text of internal emails between VPSB counsel and are of the highest sensitivity. This information, VPSB urges, is protected as attorney work product, mental impressions, and trial strategy in anticipation of litigation. VPSB adds that if it was required to produce the Excel spreadsheets, it would need to hire a computer expert to remove privileged information.

Next, VPSB asserts that the trial court previously ruled that it was not entitled to metadata. In 2010 and 2014, VPSB requested UNOCAL's document management system and metadata based on the belief that UNOCAL was withholding documents on the eve of trial. UNOCAL opposed the 2010 request and a continuance of trial. The trial court denied the discovery request but continued the trial. According to VPSB, after trial was continued, UNOCAL produced a trove of relevant documents which, in fact, had been withheld. In the 2014 motion to compel, UNOCAL and Chevron produced 110,000 pages after the deadline elapsed for the plaintiffs' expert reports. A goal, VPSB maintains, of the motion to compel was to obtain access to the database to determine if additional documents were missing; access was denied again. VPSB states that it is now surprised that UNOCAL seeks access to electronic files, a request VPSB describes as "beyond the pale." VPSB urges that UNOCAL does not seek documents created in the normal course of business but seeks metadata related to the mental impressions, trial strategies, and attorney work product. VPSB concludes that the trial court's prior rulings prohibit access to metadata.

VPSB also argues that UNOCAL either failed or refused to produce its own Excel spreadsheets and other electronic files. VPSB refers to and includes several documents introduced at the hearing as examples of documents produced by UNOCAL in PDF format which were produced from an underlying electronic or native format document. Unlike UNOCAL, VPSB stresses that it specifically asked for the production of the electronically stored version of UNOCAL's spreadsheets which was ignored by UNOCAL.

With regard to the lack of Louisiana jurisprudence regarding Article 1462 and whether PDF format complies, VPSB submits that the PDF format is so common in civil discovery, the issue has not been litigated. VPSB adds that federal jurisprudence interpreting the federal rule upon which Article 1462 is based has also ordered the production of documents in PDF format and rejected motions requesting production of ESI with metadata (when not requested). See In re Priceline.com Inc. Securities Litigation , 233 F.R.D. 88 (D. Conn. 2005), and Kentucky Speedway, LLC v. National Ass'n. of Stock Car Auto Racing, Inc. , 2006 WL 5097354 (E.D. Kentucky 2006).

More specific to the facts at hand, VPSB cites 150 Nassau Assoc. LLC v. RC Dolner LLC , 96 A.D.3d 676, 948 N.Y.S.2d 40 (2012), wherein the defendant moved to compel the production of certain income tax records and to impose discovery sanctions. The motion was denied. On appeal, the court noted that 1) the documents responsive to the defendant's request had been produced multiple times, the final time in a searchable PDF format; 2) the defendant did not request the documents in the native file format until its reply on its own motion to compel; and 3) the defendant admitted that the only benefit of the motion was for the defendant's convenience. Accordingly, the court concluded that the lower court's denial of the motion to compel the reproduction of the documents in their native format was not an abuse of discretion.

VPSB also refer to Comment 12.b. of the Sedona Principles, which reads:

Comment 12.b. Ideally, the form or forms used for production of ESI should be agreed upon early. Absent agreement, ESI must be produced as ordinarily maintained or in a form or forms reasonably usable to the requesting party .
In amending Rule 34(b) in 2006 to accommodate the expanding use and production of ESI, the Advisory Committee encouraged parties to reach agreement on the various form or forms of production, given that different types of data may serve different purposes and the potential need for native format production and metadata may vary. The default forms of production appropriate to paper discovery did not always have direct equivalents in electronic discovery, but the Rule 1 goals should be the same-to encourage forms of production that would facilitate the orderly, efficient, and cost effective production of ESI and which allow the requesting party to meaningfully analyze, search, and display the produced electronic data.
Absent agreement, ESI must be produced in the form in which it is ordinarily maintained or in a form that is reasonably usable to the requesting party. Typically, a requesting party does not need ESI produced in its native format in order to access, cull, analyze, search, and display the ESI. Indeed, the most common way to produce ESI for more than a decade has been to create a static electronic image in Tagged Image File Format (TIFF) or Adobe Portable Document (PDF) file format, to place the extracted text from the document into a text file, and to place the selected metadata and other non-apparent data into one or more separate load files. This form is frequently referred to as the production of "TIFF, Text and Load Files" or "TIFF+". With production in this format, the requesting party may reassemble the components in a fashion compatible with a chosen review platform, so that the produced data can be text-searched and sorted or filtered based on available metadata fields.
Parties should not demand forms of production, including native files and metadata fields, for which they have no practical use or that do not materially aid in the discovery process. For example, it may be excessive for a party to demand that ESI be produced in native format when the evidence needed to prove the claims and defenses of the parties is found on the face of the documents, and the information contained in the text and load Files will allow the requesting party to organize and search the documents. Indeed, even with technological advances, in the majority of instances, TIFF+ is a "reasonably usable" form of production for most purposes and types of ESI under Rule 34(b)(2)(E)(ii). Accordingly, requesting parties should avoid demanding a form of production, such as all ESI to be produced in native format, unless they have a demonstrably reasonable need for that form of production and the necessary technology, skills, and resources available to make reasonable use of and to protect the ESI. Conversely, responding parties should not seek to produce ESI in a form or forms that inhibit the ability of the requesting party to use advanced technology reasonably required to access, cull, analyze, search, and display the information. Finally, all sides should bear in mind that both requests and responses to discovery are bounded by Rule 26(g) obligations.
In sum, when selecting the form or forms of production of ESI-when requesting production, when responding to requests for production, when meeting and conferring under Rule 26(f)(3), and when participating in Rule 16(b) scheduling conferences-parties and the court should consider: (a) the forms most likely to provide the information needed to establish the relevant facts related to the parties' claims and defenses; (b) the need to receive ESI in particular formats in order to functionally access, cull, analyze, search, and display the information produced; (c) whether the information sought is reasonably accessible in the forms requested; (d) the relative value, and potential challenges created, by responding with ESI in the requested format(s); and (e) the requesting party's own ability to effectively manage, reasonably use, and protect the information in the forms requested.

The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 88-90, 2017.

VPSB urges that its counsel spent a considerable amount of time, effort, and resources to review thirteen years of complex litigation to create the requested spreadsheets, which contain the exact information requested in Interrogatory No. 2. Further, VPSB maintains, the spreadsheets were produced in PDF format, because the format omits metadata that potentially contains privileged or confidential information of the attorneys who created the spreadsheets. According to VPSB, the spreadsheets are also searchable and cannot be easily altered or changed. VPSB adds that the Bates label feature facilitates the use of the spreadsheets in depositions, hearings, and at trial. Additionally, VPSB avers that the qualities UNOCAL complains are lacking are the same qualities that make the PDF format ubiquitous in litigation. UNOCAL seeks to manipulate the underlying information in Excel spreadsheets in derogation of the Sedona Principles upon which it relies.

VPSB also contends that the jurisprudence cited by UNOCAL is distinguishable and unpersuasive. Unlike the defendant in Williams , 230 F.R.D. 640, who was held to be in violation of a court order for failing to produce electronic Excel spreadsheets, VPSB has not been ordered to produce same, and the only outstanding request for information does not specify that the production be done in Excel format. Further, the court in Williams found that the metadata from the spreadsheets were relevant to the plaintiffs' allegations. In the instant case, VPSB maintains, UNOCAL has not articulated why the metadata are relevant to the claims at issue.

In Green , 2014 WL 1631825, VPSB asserts, the issue being litigated-claims under the Fair Debt Collection Practices Act-involved the process of, and an error in, uploading accounts into Excel spreadsheets. The defendants claimed that the incident involving the plaintiff was an isolated incident. The court found, however, that the redacted spreadsheets in PDF format did not sufficiently represent the original spreadsheet or identify that the procedure upon which they relied was " 'reasonably adapted to avoid' erroneous debt collection practices." Id. at *3.

In reply, UNOCAL argues that the trial court committed obvious legal error in denying the motion to compel. First, UNOCAL contends that its broad definition of "document"-original or copy of original-in its discovery requests enlarges the scope of responsive documents. There is no dispute, UNOCAL urges, that the Excel spreadsheets are responsive documents, and that the definition of document has nothing to do with the form for production. Second, UNOCAL contends that VPSB's argument ignores Article 1462, in that it neither produced the spreadsheets in the form in which they are ordinarily maintained nor in a reasonably usable form. Further, UNOCAL avers, the fact that it did not specifically request production in native format is irrelevant, because when no form is specified, the responding party must indicate in its response the form it intends to use. In this case, UNOCAL argues, VPSB simply produced the spreadsheets in the form of its choice with no advance notice of the form as required by Article 1462.

UNOCAL also argues that the trial court erred in denying the motion when VPSB failed to produce the Excel spreadsheets in a reasonably usable form. UNOCAL reiterates that VPSB removed the search capabilities, embedded metadata, and the ability to sort, filter, and rearrange the information, making it more difficult and burdensome for UNOCAL to efficiently use the information.

Lastly, UNOCAL urges that VPSB cannot rely on a vague, unsubstantiated assertion of potential privilege. See Maldonado v. Kiewit Louisiana Co. , 12-1868, 12-1869 (La.App. 1 Cir. 5/30/14), 152 So.3d 909, writ denied , 14-2246 (La. 1/16/15), 157 So.3d 1129. UNOCAL adds that it does not seek the disclosure of legitimately privileged information or information for which the privilege has been waived. Additionally, UNOCAL maintains that speculation about what the Excel spreadsheets may contain is insufficient to show that a privilege applies, and even if they did contain privileged information, VPSB failed to provide the most basic information to substantiate the claim.

At the hearing, the trial court stated that it was trying to find a middle ground:

Mr. Coenen [Plaintiffs' counsel] did suggest that perhaps you could better delineate the things that you want and the way you want it, other than them exposing the Excel spreadsheet that they've created. That's number one. And that is that you make specific requests as to how you would want this presented, Mr. Phillips [Defendants' counsel], and see if there's a proper response or one that you think is acceptable as to how you could deal with it as a defense to what they're presenting. That's number one. Number two, if you believe that there's anything in any of that information or in the information that's been furnished here, Mr. Coenen, that you believe is privileged, you're going to have to identify it as to what you believe is privileged, of course what it is, and why you believe it's privileged. And if Mr. Phillips doesn't think that it should be excluded because of privilege, then you'll have to offer it to the Court to see why it should be excluded from here as privileged information.

We find that UNOCAL incorrectly states that VPSB was required to notify UNOCAL, in advance, as to what form it intended to produce a request. Instead, Article 1462(C) simply states that, "when electronically stored information is produced, the responding party shall identify the specific means for electronically accessing the information."

There is no dispute that UNOCAL did not specifically request that the information be produced in Excel format. The dispute involves the issues of whether any of the information requested is protected and whether the format in which the information was produced is reasonably useable.

VPSB clearly argued that the Excel spreadsheets contain attorney work product and that it took a significant amount of manpower and expense to create a PDF document to include all the information requested by UNOCAL. As such, we find that pursuant to the protection provided in Article 1424(A), the trial court did not err or abuse its discretion in denying UNOCAL's motion to compel the Excel spreadsheets.

With regard to the usability of the PDF spreadsheets, while UNOCAL has established that it may be burdensome to convert the static image PDF files into a searchable text format, it is not clear how UNOCAL's ability to manipulate the information produced in an Excel format is necessary in its defense of VPSB's claim for costs and attorney fees. UNOCAL has not shown how or why the information produced in a PDF format is not satisfactory or reasonably useable to its defense. Accordingly, the trial court did not err or abuse its discretion in denying UNOCAL's motion to compel. We find no error or abuse of discretion in the trial court's ruling.

WRIT DENIED.

      The comments to La.Code Civ.P. arts. 1461 and 1462 refer to the advisory committee notes to the 2006 amendments to Fed. R. Civ. P. 34.

      In their response to the plaintiff's initial discovery requests (the spreadsheet was not the requested discovery), the defendants referred to an Excel spreadsheet. The plaintiff subsequently filed a motion to compel the Excel spreadsheet.

      The publication may be downloaded-https://thesedonaconference.org/download-pub/5120.


author: COOKS, Judge.

text:
    MASTER CRAFT CONSTRUCTION, LLC v. PRONOUN, INC.
    17-569
    Court of Appeal of Louisiana, Third Circuit.
    December 20, 2017
    Francis R. White, III, 434 East Lockwood Street, Covington, LA 70433, (985) 898-2124, COUNSEL FOR PLAINTIFF/APPELLEE: Master Craft Construction, LLC
    Elvin C. Fontenot, Jr., 110 East Texas Street, Leesville, LA 71446, (337) 239-2684, COUNSEL FOR PLAINTIFF/APPELLEE: Master Craft Construction, LLC
    Robert J. Williams, 4830 Lake Street, Lake Charles, LA 70605, (337) 562-1116, COUNSEL FOR DEFENDANT/APPELLANT: Pronoun, Inc.
    Court composed of Sylvia R. Cooks, John D. Saunders and Candyce G. Perret, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

In February 2014, the City of Lake Charles contracted with Master Craft Construction, LLC for the construction of water service lines. The contract between the City of Lake Charles and Master Craft required that the work be completed within sixty (60) days and provided for liquidated damages in the event of non-completion within the specified time period.

In connection with this contract, Master Craft entered into a subcontract with Pronoun, Inc., to install several thousand feet of underground water pipes. Problems arose concerning the performance of Pronoun's duties under the subcontract. According to Master Craft, it took Pronoun fifteen days out of the sixty day project period to man the job. Master Craft also found out later that Pronoun did not have the insurance required by the subcontract, nor did it have the capital to purchase the insurance. Pronoun also did not have the necessary manpower or equipment to perform the contracted work. Master Craft claimed any work done by Pronoun was substandard and untimely. When Master Craft terminated the job, they alleged Pronoun had already pulled off the job to work on another project.

Pronoun was not paid for any of the work it performed. In response, Pronoun recorded a lien in Calcasieu Parish under the Louisiana Public Works Act, La.R.S. 38:2241 et seq. Suit to enforce the lien was subsequently filed in the Fourteenth Judicial District Court. Upon Master Craft's motion, the suit was stayed in the district court pursuant to the arbitration clause set forth in the contract between Master Craft and Pronoun.

Pursuant to the terms of the contract, Master Craft initiated the arbitration by making demand on Pronoun by certified mail on August 27, 2015. The contract provided that each party could select an arbitrator; and if both did so, then those two arbitrators would select a third arbitrator to handle the proceeding. If only one party selected an arbitrator, that choice would be the arbitrator. Master Craft selected William Scott Montgomery, a licensed contractor, who had previous experience serving as an arbitrator. Pronoun did not select an arbitrator; thus, Mr. Montgomery became the arbitrator.

On September 18, 2015, counsel for Master Craft forwarded a copy of the notice of arbitration to Pronoun's counsel. Pronoun made no claim against Master Craft and filed no objections to the proceedings. On October 29, 2015, the arbitrator set the arbitration for November 18, 2015 and sent notice to all parties.

On November 12, 2015, six days before the hearing, counsel for Pronoun sent a letter requesting the arbitration hearing be reset as his client would be out of town on the date of the hearing. Master Craft did not oppose the request, and the arbitration hearing was reset for December 16, 2015. As Master Craft noted, nothing in the letter sent by Pronoun to the arbitrator referenced any complaint about the procedures employed by the arbitrator, any need for further discovery or any need for additional time to prepare.

On December 1, 2015, Pronoun propounded written discovery on Master Craft. At the request of the arbitrator, Master Craft expedited its responses, providing answers on December 9 and 10. On December 9, 2015, at Pronoun's request, a telephone conference was held. Pronoun requested the reset date of December 16, 2015 be continued, claiming it had not had sufficient time to conduct discovery. The arbitrator agreed to postpone the hearing one day to December 17, 2015.

On December 14, 2015, Pronoun filed a request with the Fourteenth Judicial District Court (where the previously stayed action was pending), requesting a Temporary Restraining Order to prevent the arbitration from going forward. In the request for TRO, Pronoun argued the arbitrator was governed by the rules of the American Arbitration Association and Federal Rules of Civil Procedure, which he failed to properly "observe." The district court denied the request for the TRO, but ordered that Master Craft's principal, C.J. Burgess, be made available for a deposition.

The arbitration hearing occurred on December 17, 2015, during which documentary and testimonial evidence was presented. At the end of the hearing, the arbitrator concluded that Pronoun had performed some work for which it merited compensation. Thus, the arbitrator awarded Master Craft $40,000.00 in damages rather than the $65,000.00 it had requested, determining Pronoun was entitled to $25,000.00 for the work it performed. Master Craft was also awarded $16,500.00 in attorney fees.

Master Craft then applied to the district court to confirm the arbitration award and Pronoun moved that the award be vacated. After a hearing, the district court denied Pronoun's motion to vacate and entered judgment confirming the arbitration award. This appeal followed, wherein Pronoun asserts the "trial court erred in denying [its] Motion to Vacate the Arbitration award, which motion was based upon the alleged misconduct/misbehavior of the arbitrator." For the following reasons, we affirm the trial court's judgment denying Pronoun's motion to vacate and confirming the arbitration award.

ANALYSIS

It has long been noted that "[b]ecause of the strong public policy favoring arbitration, arbitration awards are presumed to be valid." National Tea Co. v. Richmond , 548 So.2d 930, 932 (La.1989). Moreover, "[e]rrors of fact or law do not invalidate a fair and honest arbitration award," and "[t]he burden of proof rests upon the party attacking the award." Firmin v. Garber , 353 So.2d 975, 978 (La.1977). Such deference to arbitral awards is consistent with the longstanding recognition that arbitration is intended to "speedily ... determine disputes and controversies by quasi-judicial means, thus avoiding the formalities, the delay, the expense, and the vexation of ordinary litigation." Housing Authority of New Orleans v. Henry Ericsson Co. , 197 La. 732, 2 So.2d 195, 199 (1941).

A district court may not vacate an arbitrators' award unless specifically authorized by statute. See La. R.S. 9:4210. An arbitration award, therefore, must be confirmed by a district court unless statutory grounds for vacating the award exist. See Johnson v. 1425 Dauphine, L.L.C. , 10-793 (La.App. 4 Cir. 12/1/10), 52 So.3d 962. Here, Pronoun sought relief under La.R.S. 9:4210, which provides:

In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

A review of the record shows no evidence of corruption, impartiality or undue means on the part of the arbitrator. Likewise, there is no evidence the arbitrator engaged in any misconduct in regard to any evidentiary matter or scheduling. Disagreement by a party with the final judgment based on the facts presented is not a valid basis for vacating an arbitration award. Manifest error is not a judicially recognized ground for vacating or modifying an arbitration award. National Tea Co. v. Richmond , 548 So.2d 930 (La.1989). Absent the existence of any of the statutory or jurisprudential grounds for vacating or modifying an arbitration award, a reviewing court is prohibited from reviewing the merits of the arbitrator's decision. Webb v. Massiha , 08-226 (La.App. 5 Cir. 9/20/08), 993 So.2d 345, writs denied , 08-2834, 08-2845 (La. 02/06/09), 999 So.2d 780.

Pronoun argues the arbitration award should be vacated because the arbitrator did not employ the full set of rules regarding construction arbitration set forth in the rules of the American Arbitration Association and the full set of rules pertaining to discovery set forth in the Federal Rules of Civil Procedure. Specifically, Pronoun argues this failure to follow these rules impeded its ability to undertake full discovery and prejudiced its ability to present its case.

However, Pronoun does not list what additional discovery it would have done and how that discovery might have affected the outcome of the case. As Master Craft noted, Pronoun was provided all of the documents used by Master Craft at the hearing, all the documents it requested in discovery and deposed the one witness called by Master Craft at the hearing.

Further, we agree with Master Craft that the arbitrator made numerous accommodations requested by Pronoun, including twice continuing the date of the hearing. Master Craft was also requested to expedite the discovery responses to Pronoun's questions, despite the fact they were made "last-minute" and months after the arbitration proceedings began. Pronoun cannot now complain they were prejudiced in receiving responses to their discovery shortly before the hearing, when they did not request them from Master Craft until shortly before the hearing. Master Craft also was ordered by the arbitrator to make their lone witness available to Pronoun for a deposition. Thus, we find Pronoun's assertion that the arbitrator prejudiced its ability to present its case is not supported by the record.

We also find no merit in Pronoun's assertion that the arbitrator was required to adopt and employ all the procedures set forth in the rules of the American Arbitration Association and the Federal Rules of Civil Procedure. Such a position is impossible to maintain and would lead to absurd results that would inhibit the purpose of arbitration, which is the "speedy disposition of differences through informal procedures without resort to court action." Firmin v. Garber , 353 So.2d 975, 977 (La.1977).

As Master Craft notes, the arbitration provision in the contract provides the arbitrator has the "full powers and functions of a State District Judge with requests to such discovery." It is well settled that under Louisiana law "that trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse." O'Dwyer v. Our Lady of Lake Nurse Anesthesia Program , 13-703, p. 2 (La. 5/17/13), 117 So.3d 1252, 1253, citing Moak v. Illinois Central Railroad Co. , 631 So.2d 401 (La.1994). As set forth above, we find nothing to support the assertion that any discovery ruling by the arbitrator prejudiced Pronoun.

Master Craft also notes Pronoun's argument that all of the rules of the American Arbitration Association must be applied is not meritorious in this case. Here, the parties agreed to the method specified in the contract that each party may make their own choice for arbitrator as opposed to the American Arbitration Association rules which provide that the parties are to rank the candidates provided by the American Arbitration Association and then the Association would choose the arbitrator. Further, the rules of the American Arbitration Association and the Federal Rules of Civil Procedure provide for differing rules regarding the conducting of discovery. The American Arbitration Association places which documents are to be exchanged solely in the hands of the arbitrator, whereas the Federal Rules of Civil Procedure allow the parties to determine which documents are to be produced. Pronoun's argument that the arbitrator was bound by all the rules of the American Arbitration Association and the Federal Rules of Civil Procedure conflicts with the language of the contract between the parties. We also note the arbitration provision in the contract makes a general statement that the arbitrator is to be governed by the rules of the American Arbitration Association. It does not state that each and every rule of the American Arbitration Association is to be applied. It then goes on to state the arbitrator shall apply "the substantive law of the State of Louisiana" and have the "full powers and functions of a State District Judge" with respect to discovery. It is well established that, in contract interpretation, the more specific provision controls the general. Mixon v. St. Paul Fire & Marine Ins. Co. , 147 La. 302, 84 So. 790 (1920).

Moreover, a primary purpose of substituting arbitration for litigation is to eschew or avoid the highly technical rules of civil procedure. Haase Construction Co., Inc. v. Strohmeyer , 98-2967 (La.App. 4 Cir. 6/23/99), 738 So.2d 152. Thus, arbitration proceedings are not held to the same strict rules as are the courts. Id.

The court in ConstructionSouth, Inc. v. Jenkins , 12-63 (La.App. 5 Cir. 6/28/12), 97 So.3d 515, writ denied , 12-1756 (La.11/2/12), 99 So.3d 676, recognized that an arbitration award can only be challenged on the grounds specified in La.R.S. 9:4210. It further explained that an appellant cannot seek review of the merits of his or her claim by framing his or her argument in terms of the arbitration panel having exceeded its authority. Id. Having found no evidence of any corruption, impartiality or undue means on the part of the arbitrator in violation of La.R.S. 9:4210, we confirm the arbitration award.

DECREE

In conclusion, we find Pronoun has failed to establish that any of the factors set forth in La.R.S. 9:4210 are present in this case. Therefore, we affirm the trial court's denial of Pronoun's motion to vacate and affirm the judgment confirming the arbitration award. All costs of this appeal are assessed to Pronoun.

AFFIRMED.


author: MCDONALD, J.

text:
    IN RE: INTERDICTION OF Roy J. SHUBERT, Jr.
    2017 CA 1738
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Alison C. Bondurant, James L. Bradford III, Covington, Louisiana, Attorneys for Plaintiff/Curator/Appellee, Kathleen Shubert Brown
    Brenda Braud, Hammond, Louisiana, Attorney for Defendants/Appellants, Roy J. Shubert III, Linda Shubert and Diane Shubert Cox
    Elizabeth Wiedemann, Mandeville, Louisiana, Undercurator/Appellee
    Jeff Bratton, Covington, Louisiana, Attorney Ad Hoc/Appellee
    BEFORE: MCDONALD, CRAIN, and HOLDRIDGE, JJ.
   MCDONALD, J.

In this appeal, children of an interdict challenge the judgment of permanent interdiction. We dismiss the appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2017, 91-year-old Roy J. Shubert Jr. was discharged from the hospital and admitted to hospice care with end-stage kidney disease, diabetes, and hypertension. Upon leaving the hospital, Mr. Shubert moved into the home of his daughter and son in law, Kathleen and Melvin Brown. Kathleen handled Mr. Shubert's medical and financial affairs under a power of attorney as well as under the terms of a family trust established by her parents in 1997.

In July 2017, Mr. Shubert moved into The Trace Senior Community in Covington, Louisiana. In a letter, Kathleen explained to her three siblings, Roy J. Shubert III, Linda A. Shubert, and Diane Shubert Cox (Siblings) that family member visits had created unhealthy turmoil in her home, that their father became agitated and unsettled after visits, and that he and she had decided that it was best for him to move to The Trace. She stated that their father's new residence would give each of them an opportunity to spend time with him.

On August 14, 2017, Kathleen filed a petition to interdict Mr. Shubert, attaching the affidavit of Dr. Hyon Kim, a psychiatrist, who had evaluated her father and determined he was "unable to consistently make reasoned decisions regarding the care of his person or property." Kathleen alleged that other family members were trying to get Mr. Shubert to revoke her authority to manage his affairs and that Mr. Shubert did not have the mental capacity to make that decision. The trial court signed a temporary interdiction order, issued temporary letters of curatorship to Kathleen, appointed an undercurator and an attorney ad hoc as Mr. Shubert's counsel, and noticed a hearing on the preliminary interdiction. The attorney ad hoc filed an answer on Mr. Shubert's behalf, seeking dismissal of the interdiction petition.

On August 23, 2017, the trial court held the hearing, at which Mr. Shubert, his attorney ad hoc, Kathleen, her attorney, the undercurator, and the Siblings were present. Kathleen's attorney called witnesses and entered documentary evidence at the hearing with no objection, and the attorney ad hoc, who visited Mr. Shubert two days before the hearing, testified. The Siblings made no formal appearance. At the end of the hearing, the trial court indicated there was sufficient evidence to warrant Mr. Shubert's permanent interdiction. On September 20, 2017, the trial court signed a judgment permanently interdicting Mr. Shubert, appointing Kathleen as his curator; appointing a permanent undercurator and setting her fee; giving Kathleen discretion to set visitation guidelines for Mr. Shubert's visitors, including the power to limit or prohibit visitation; prohibiting the Siblings from agitating Mr. Shubert; limiting the Siblings' communication with Kathleen to writing only; and other matters.

The Siblings appealed from the September 20, 2017 interdiction judgment. After the appeal was lodged, Mr. Shubert died on January 25, 2018. Kathleen then filed a motion to dismiss the Siblings' appeal as moot, and the Siblings opposed the dismissal. Another panel of this court referred the motion to this panel for decision. Because our decision on the motion to dismiss disposes of the appeal, we pretermit decision of the issues raised in the appellate briefs.

DISCUSSION

In support of her motion to dismiss, Kathleen contends her Siblings' appeal from the interdiction judgment should be dismissed as moot because Mr. Shubert died during the pendency of the appeal. She claims there is no longer a justiciable controversy among the parties because her father's death renders the question of whether he should have been interdicted (i.e., whether he was capable of making reasoned decisions regarding his person and property) purely academic, advisory, and thus, impermissible.

In opposition, her Siblings contend their appeal is not moot, because issues remain as to whether the interdiction judgment was validly obtained. They claim: Kathleen abused her position as Mr. Shubert's mandatary in committing him to The Trace, without visitation, to prevent him from seeking his own counsel in the interdiction proceedings; the interdiction judgment was obtained in violation of Mr. Shubert's statutory and constitutional rights and he had tort actions under LSA-C.C. art. 2315.1, which survived his death; and, Mr. Shubert's court-appointed attorney ad hoc did nothing to oppose the interdiction, even though he possessed information warranting opposition. According to the Siblings, these issues are reviewable as part of their appeal from the interdiction judgment. Alternatively, the Siblings contend that, if we choose to dismiss the appeal, the dismissal should be without prejudice to their rights to pursue these issues.

The purpose of a full interdiction is to provide for the care of a person and his property when, due to an infirmity, he is unable consistently to make reasoned decisions regarding these interests, and when these interests cannot be protected by less restrictive means. See LSA-C.C. art. 389. Interdiction terminates upon death of the interdict. LSA-C.C. art. 397. Thus, the trial court's adjudication of Mr. Shubert as an interdict cannot now serve a useful purpose or give any practical effect and moots any challenge to the issue of whether he should have been interdicted. See Joseph v. Ratcliff, 10-1342 (La. App. 1 Cir. 3/25/11), 63 So.3d 220, 225 ; In Re: Meraux, 03-0633 (La. App. 4 Cir. 2/4/04), 867 So.2d 818, 819 ; Interdiction of Stephens, 488 So.2d 426, 427 (La. App. 3 Cir. 1986).

As to any other issues, we note that courts will not decide abstract or hypothetical controversies or render advisory opinions about controversies. Joseph, 63 So.3d at 225. Mr. Shubert's attorney ad hoc could have contested the judgment of interdiction before or after it was signed or could have brought a tort action against Kathleen for alleged violations of Mr. Shubert's statutory and constitutional rights. See LSA-C.C.P. art. 4554 ; LSA-C.C. art. 2315. Similarly, before their father's death, the Siblings could have challenged the effectiveness of the attorney ad hoc's legal assistance, could have filed a rule to show cause seeking visitation with their father, or could have sought Kathleen's removal as curator once appointed. See LSA-C.C.P. arts. 4554, 4568, 4570. However, the record shows that no such steps were taken. Thus, none of these issues were before the trial court when it rendered the interdiction judgment, and therefore, they are not before us or properly assigned as error on appeal. See In Re: Interdiction of Powell, 14-78 (La. App. 5 Cir. 6/24/14), 145 So.3d 503, 506.

CONCLUSION

For the above reasons, we dismiss this appeal as moot. Costs are assessed to Roy J. Shubert III, Linda A. Shubert, and Diane Shubert Cox.

APPEAL DISMISSED.


author: WHIPPLE, C.J.

text:
    STATE of Louisiana IN the INTEREST OF D.G.
    NUMBER 2018 KJ 0373
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Hillar C. Moore, III, Courtney E. Meyers, Dale R. Lee, Baton Rouge, LA, Counsel for Appellee, State of Louisiana
    Annette Roach, Lake Charles, LA, Counsel for Defendant/Appellant, D.G.
    BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

The juvenile, D.G., was charged by petition in juvenile court with one count of armed robbery, a violation of LSA-R.S. 14:64, and one count of simple battery, a violation of LSA-R.S. 14:35 He denied the allegations and, following an adjudication hearing, was adjudicated a delinquent for the charged offenses. As noted by the juvenile court, these offenses occurred while D.G. was on probation for another offense. For the armed robbery offense, the juvenile court imposed disposition of confinement in secure placement until the juvenile attains the age of twenty-one years without benefit of parole, probation, or suspension of sentence; for the simple robbery offense, the juvenile court imposed disposition of confinement for six months and ordered this disposition to run concurrently with any other sentence imposed. D.G. now appeals, designating two assignments of error. For the following reason, we affirm the adjudications and dispositions.

FACTS

On March 31, 2017, the victim, Cornelius Chopez, left his apartment on Titan Avenue in Baton Rouge to dump his garbage. As he was walking back to his apartment, D.G. and another juvenile approached Chopez and demanded money. He did not have money on his person. The juveniles patted him down. When Chopez tried to run, D.G. produced a gun from his waistband and pointed it at Chopez's head. D.G. grazed his head with the gun. When Chopez tried to run, he dropped his cell phone. D.G.'s companion took the phone, and the juveniles left. Chopez identified D.G. in a photographic lineup as the perpetrator. Chopez also identified D.G. in court.

D.G. did not testify.

ASSIGNMENT OF ERROR NO.1

In his first assignment of error, D.G. argues the juvenile court erred in failing to make a finding of competency prior to proceeding with the adjudication hearing.

The issue of D.G.'s competency was apparently raised prior to the contradictory hearing held on February 6, 2018. The first minute entry of the record states: "COURT SUSPENDS HEARING, PENDING RESTORATION ON COMPETENCY." The minutes further indicate that the competency review was set for September 5, 2017. The September 5, 2017 minute entry states that the matter was reassigned for a status conference on October 24, 2017. D.G. notes that on this date, October 24, 2017, the juvenile court relieved the Department of Health and Mental Health Advocacy Center of representation. D.G. contends that there was no further mention of competency or mental health issues until disposition was imposed.

D.G. points out in brief that once the mental health of a child is raised, there can be no further steps in the prosecution until the child is found to have the mental capacity to proceed. See LSA-Ch. C. arts. 832, 834 & 836. D.G. asserts that his case was suspended and that his competency was never determined. Thus, D.G. contends his adjudications and dispositions are null, and the case should be remanded to determine his competency in accordance with LSA-Ch. C. arts. 836 - 837.

We disagree. The entirety of D.G.'s argument is based on what was contained in a few minute entries. While it is clear that someone at some point raised the issue of D.G.'s competency, there is nothing in the record to indicate the juvenile court even ordered a competency commission, pursuant to LSA-Ch.C. art. 834. Further, while D.G. suggests that the Mental Health Advocacy Center representative was "relieved" by the court, with no further consideration or mention of D.G.'s competency, our reading of the record suggests something different. The October 24, 2017 minute entry indicates the following people were present in court: The prosecutor; defense counsel; Krystal Brown, with the Louisiana Department of Health; Brittany Yoes, with the Mental Health Advocacy Center; and Keelen Robinson, with the Office of Juvenile Justice. It appears that, following some type of hearing or conference, the juvenile court then relieved Krystal Brown and Brittany Yoes. All of this occurred prior to the probable cause hearing on November 1, 2017.

Most importantly, as the State points out in its brief, certain status conferences had not been transcribed and made part of the record. The State thus supplemented the instant record with transcripts of those proceedings (which supplementation was apparently subsequent to D.G. crafting his argument complaining of error based on several minute entries).

The supplementation reveals that at the October 24, 2017 status conference, when the State requested a new court date, defense counsel agreed and added, "It looks like according to the report, he is probably competent to move forward with restoration services[.]" At this point, counsel with the Mental Health Advocacy Center and the Department of Health asked to be relieved. At the November 1, 2017 hearing, with D.G. present, the State noted it was ready to move forward. The juvenile court stated, "Okay. Alright, I'll note the last time we were here I had to get a report from LDH. We agreed to accept that report." Defense counsel agreed, and the juvenile court stated: "And so we're able to go forward. That satisfied that [D.G.] understands what's going on and is able to assist at this point. " (Italics added).

Accordingly, the juvenile court, based on a determination by the Louisiana Department of Health, found that D.G. was competent to proceed. Specifically, the juvenile court had the opportunity to consider reports of mental health professionals who evaluated the minor. If the hearing was not contradictory in nature, it was not so because defense counsel acquiesced to the findings of competency regarding the minor. See State ex rel. C.P., 2006-0889 (La. App. 4th Cir. 2/7/07), 952 So.2d 758, 760-761.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, D.G. argues the juvenile court erred in failing to assure that the interpreter was qualified as an expert in Spanish and was administered the oath or affirmation that she would make a true translation.

Cornelius Chopez, the victim, spoke only Spanish, so an interpreter, Carmen Williams, was used at the adjudication hearing to elicit his testimony. D.G. complains there was no colloquy with the interpreter to determine her qualifications, knowledge, training, and education. He contends that as such, the juvenile court abused his discretion in permitting the interpreter to translate the victim's testimony.

In the entirety of the record before us, the only motion filed regarding an interpreter was a "Motion For Interpreter," filed by the State. An interpreter was thus appointed and used at the adjudication hearing. Defense counsel filed no motions, in limine or otherwise, regarding the use of an interpreter. Defense counsel did not object or raise a single issue regarding the use of an interpreter at the adjudication hearing. Further, there is nothing in the minutes about defense counsel raising any issue regarding the use of an interpreter.

Because D.G. offered no contemporaneous objection to the use of an interpreter or to any of the actual interpretation during the hearing and, in fact, acquiesced to it, he cannot now raise this issue on appeal. See LSA-C.Cr.P. art. 841 ; State ex rel. K.G., 34,535 (La. App. 2nd Cir. 1/24/01), 778 So.2d 716, 723. Accordingly, having raised any and all issues regarding the use of an interpreter for the first time on appeal, D.G. has failed to preserve the issue for this court's review.

This assignment of error also lacks merit.

ADJUDICATIONS AND DISPOSITIONS AFFIRMED.

      Supplementation of the record by the State also indicates the interpreter was sworn to truthfully repeat and translate answers to the best of her knowledge.


text:
    CITY OF BATON ROUGE, Parish of East Baton Rouge v. Daryl PUPERA, in his capacity as the Legislative Auditor of the State of Louisiana
    NUMBER 2017 CA 1645
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Lea Ann Batson, Courtney K. Humphrey, Tedrick K. Knightshead, Baton Rouge, LA, Counsel for Plaintiff/Appellant, City of Baton Rouge, Parish of East Baton Rouge
    Jenifer Schaye, Baton Rouge, LA, Counsel for Defendant/Appellee, Daryl G. Purpera, in his capacity as Louisiana Legislative Auditor
    BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

Plaintiff, the City of Baton Rouge, Parish of East Baton Rouge ("the City/Parish") appeals the trial court's judgment declaring it without authority to levy a special ad valorem tax to support the three-platoon system of its municipal police department. For the following reasons, we dismiss the appeal and recall a show cause order issued by this court as moot.

FACTS AND PROCEDURAL HISTORY

Since 1959, the City/Parish has levied a special tax for the purpose of operating and maintaining a three-platoon system for its police department, known as the Three Platoon Police Millage ("the Millage"). However, after launching an inquiry into the City/Parish's authority to levy the Millage, the Louisiana Legislative Auditor concluded that it would not certify the Millage for the 2017 year based on its finding that the City/Parish was without constitutional or statutory authority to levy it. Ultimately, after discussions between the parties, the Legislative Auditor proposed to certify the Millage for the 2017 year with the understanding that the Millage would not be certified for the year 2018 or any year thereafter without either ballot affirmation or a judgment from the court.

Thus, on September 11, 2017, the City/Parish filed a petition for declaratory judgment, seeking judgment "declaring the legal authority of the City-Parish to levy [the Millage] constitutional." Following a hearing and the filing of joint stipulations, the trial court signed a judgment dated October 22, 2017, declaring that "the [City/Parish] by virtue of Act 510 of 1975 is without authority to levy a special ad valorem tax, not to exceed 1 mill, to support the three-platoon system of its municipal police department without a vote of the electorate pursuant to Article VI, Sec. 27 of the 1974 Constitution and is therefore unconstitutional." From this judgment, the City/Parish appeals, contending that the trial court erred in declaring that it was without constitutional authority to levy the Millage.

On December 4, 2017, this court issued a Rule to Show Cause Order, ordering the parties to show cause by briefs why this appeal should or should not be dismissed or transferred from this court pursuant to LSA-Const. Art. V, sec. 5. By subsequent order dated March 6, 2018, the Rule to Show Cause was referred to the panel to which the appeal is assigned. Accordingly, this matter was assigned to a three-judge panel and set on the August 2018 docket to be heard with oral argument.

However, after docketing, the Legislative Auditor filed with this court a motion to dismiss the City/Parish's appeal as moot, averring that the Millage at issue had been placed on the April 28, 2018 ballot and that on that date, the voters of East Baton Rouge Parish had approved the Millage. The Legislative Auditor further averred that on June 13, 2018, the City/Parish then adopted Ordinance 16831, levying the Millage, and that on July 6, 2018, the Louisiana Secretary of State had certified that the proces verbal of the election was filed and recorded. Accordingly, the Legislative Auditor contended that a justiciable controversy no longer existed and, thus, that the appeal should be dismissed as moot.

Finally, on July 26, 2018, the City/Parish filed a motion to dismiss its appeal.

DECREE

Considering the above and foregoing, and the record herein, in light of the parties' motions, the instant appeal is hereby dismissed. Moreover, the December 4, 2017 Rule to Show Cause Order issued by this court is hereby recalled as moot.

APPEAL DISMISSED; DECEMBER 4, 2017 RULE TO SHOW CAUSE ORDER RECALLED AS MOOT.

McClendon, J. concurs in the result reached by the majority

      Louisiana Legislative Auditor Daryl Purpera's name was incorrectly spelled as "Pupera" in the City/Parish's petition herein.


author: HIGGINBOTHAM, J.

text:
    Mary Morris Ramsey POLK and Nakeya Downing v. Andrea BUCKHALTER and Natasha McNealty
    NO. 2018 CA 0053
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Latoia Williams-Simon, Vanessa R. Williams, Amite, LA, Attorneys for Plaintiffs-Appellees, Mary Morris Ramsey Polk and Nakeya Downing
    Charles V. Genco, D. Mark Valentine, Amite, LA, Attorneys for Defendant-Appellant, Natasha McNealty
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

Defendant appeals from the trial court's judgment granting plaintiffs' rule for eviction, awarding damages to plaintiffs, and denying defendant's peremptory exceptions of no cause and no right of action and dilatory exceptions of unauthorized use of summary proceedings and nonjoinder of a necessary party.

FACTS AND PROCEDURAL HISTORY

On February 22, 2017, plaintiffs, Ms. Nakeya Downing and Ms. Mary Morris Ramsey Polk, filed a "Petition for Eviction of Land and for Damages" seeking an order evicting defendants, Andrea Buckhalter and Natasha McNealty, from a tract of land in Tangipahoa Parish allegedly owned by plaintiffs. Plaintiffs also sought damages caused by defendants preventing Ms. Downing from moving her trailer onto the tract of land. According to the petition, Ms. Buckhalter and Ms. McNealty both lived in trailers that were located, in part, on land owned by plaintiffs. In their petition, plaintiffs alleged ownership of the tract of land via a 2009 judgment of possession rendered in the succession proceeding of Ms. Polk's father, Mr. Riley Morris, Sr., as well as a 2011 consent judgment. Thereafter, on March 27, 2017, plaintiffs filed a "Rule and Order to Show Cause," which ordered Ms. McNealty to show cause why the petition for eviction and damages should not be granted.

In response, Ms. McNealty filed several exceptions, including peremptory exceptions of no right of action and no cause of action, and dilatory exceptions of failure to join necessary parties and unauthorized use of summary proceedings. In the exceptions, she challenged the ownership of the tract of land where Ms. McNealty's trailer was located and contended that Ms. McNealty's aunt, Ms. Mary Jackson, rather than plaintiffs, had an ownership interest in the tract of land.

On June 26, 2017, Ms. McNealty's exceptions, as well as plaintiffs' rule to show cause, came before the trial court for a hearing. At the hearing, the trial court acknowledged that Ms. Buckhalter moved her trailer from the tract of land at issue thereby rendering the eviction claims against her moot and stated that the court was addressing only claims against Ms. McNealty.

In a judgment signed on August 1, 2017, the trial court overruled Ms. McNealty's exceptions, granted the plaintiffs' rule for eviction, ordered Ms. McNealty to vacate the premises and remove all belongings, and awarded plaintiffs monetary damages for Ms. Downing's trailer moving expenses and for her trailer rental expenses at another location. It is from this judgment that Ms. McNealty appeals asserting that eviction was not the proper remedy because ownership and possession are in dispute, that plaintiffs failed to establish that they had a right of action to pursue eviction, that plaintiffs' eviction action failed to join necessary parties, and that damages were improperly granted in a summary proceeding.

Timeliness of the appeal

Upon examination of the record, this court issued a rule ordering the parties to show cause why this appeal should not be dismissed as untimely under La. Code Civ. P. art. 4735. The show cause order was referred to this panel to consider in connection with our review of the merits of this appeal. Louisiana Code of Civil Procedure article 4735 states:

An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.

Louisiana Code of Civil Procedure article 2087 provides that an appeal which does not suspend the effect or execution of an appealable judgment may be taken within sixty days of the date of the mailing of notice of the court's refusal to grant a timely application for a new trial, as provided by La. Code Civ. P. art. 1914. See La. Code Civ. P. art. 2087(A)(2) ; Terrebonne Parish Port Com'n v. Eagle Dry Dock & Marine Repairs, L.L.C. , 2014-0010 (La. App. 1st Cir. 7/7/15), 2015 WL 4094331, *7 (unpublished), recognizing that a devolutive appeal may be taken from a judgment in a summary eviction proceeding. See also Freemin v. Coglaiti , 411 So.2d 471, 472 (La. App. 1st Cir. 1981) (even if an appeal for an eviction judgment cannot be maintained as suspensive, it may be maintained as a devolutive appeal if the requirements of the general law for a devolutive appeal are met.) While the record reveals that Ms. McNealty's appeal was not timely filed to suspend the execution of the judgment under Article 4735, we find that the appeal was timely filed within sixty days of the denial of the motion for new trial and thus the appeal is maintained as a devolutive appeal.

LAW AND ANALYSIS

Eviction is a proper remedy for an owner of immovable property, who wishes to evict a lessee or "occupant" therefrom, after the purpose of the occupancy has ceased. La. Code Civ. P. art. 4702 ; PTS Physical Therapy Service, Inc. v. Magnolia Rehabilitation Service, Inc. , 40,558, 40,599 (La. App. 2d Cir. 1/27/06), 920 So.2d 997, 999. Louisiana Code of Civil Procedure article 4702, which provides the basis for this remedy, was designed to give an owner of immovable property summary means to evict an occupant without fulfilling the burden and delay required in a petitory action. Id. The eviction procedure may not be construed to conflict with the Louisiana Code of Civil Procedure articles relating to actions to determine possession and ownership. La. Code Civ. P. art. 4705. It is well settled that an eviction proceeding is not the appropriate remedy to determine real rights to immovable property. See Champagne v. Broussard , 401 So.2d 1060, 1064 (La. App. 3d Cir.), writ denied, 409 So.2d 615 (La. 1981). Summary eviction procedure is not appropriate to try disputed title to property but is designed for situations where the possessor has no semblance of claim to title or possession. Northeast Realty v. Jackson , 36,276 (La. App. 2d Cir. 8/14/02), 824 So.2d 1264, 1267-68. In an eviction proceeding against an occupant, the petitioner is required to make a prima facie showing of title to the property, prove that the defendant is an occupant as defined in La. Code Civ. P. art. 4704, and show that the purpose of the occupancy has ceased. R & R Land Company v. Lawson , 427 So.2d 1356, 1358 (La. App. 2d Cir. 1983).

At the hearing, plaintiffs introduced the judgment of possession referred to in their petition as evidence of their ownership of the tract of land. The judgment of possession was rendered in the succession of Riley Morris, Sr. In the judgment, the property compromising the estate of Riley Morris Sr. consisted of an approximately 4.31 acre tract of land located in Tangipahoa Parish. In the judgment, Ms. Polk was put in possession of an undivided 1/5 interest in the property and Ms. Downing, Mr. Morris's granddaughter, and one of the four children of Richard Louis Morris was put into possession of an undivided 1/20 interest in the property.

Plaintiffs also introduced a consent judgment rendered after the judgment of possession wherein Ms. Polk entered into a stipulation with Ms. Jackson, which granted possession and ownership of 7/12 of the 4.31 acre tract to Ms. Jackson and all heirs of Riley Morris Sr., and Mary Bouie McNealty Morris, and granted possession and ownership of 5/12 of the 4.31 acre tract to Ms. Polk and all heirs of Riley Morris Sr., and Lilly Tate. The judgment of possession stated that Ms. Jackson's "7/12 portion of said property shall be one (1) contiguous tract of property, and shall join and abut the properties owned and/or previously owned by Geneva McNealty ... and/or occupied presently by Tasha McNealty, and said 7/12 of subject property shall abut said properties on the east boundary and on their southern boundary ... as reflected on Exhibit A." Finally, plaintiffs attached a survey done by Mr. William J. Bodin in 2012, which states that the "division of land is based on the consent judgment by the 21st Judicial District Court, Parish of TA." The survey depicts Ms. McNealty's trailer as partially on the land labeled as Ms. Polk's 5/12th portion of the land.

In response, Ms. McNealty introduced a second survey done by Mr. Bodin in 2016, which also stated it was "based on the consent judgment by the 21st Judicial District Court, Parish of Tangipahoa." The 2016 survey depicts Ms. McNealty's trailer as partially on the property labeled as the "Heirs of Riley Morris Sr." 7/12th portion. Additionally, Ms. Jackson, who was one of the heirs entitled to the 7/12th portion of the tract of land, testified that Ms. McNealty, who is her niece, was living on the property with her permission and had been living there since 2008.

The evidence reveals a dispute regarding who owns the property on which Ms. McNealty's trailer is located and whether plaintiffs can legally evict Ms. McNealty. Because there is a dispute regarding ownership of the land, the matter is effectively removed from a summary eviction proceeding. See Northeast Realty , 824 So.2d at 1267-68.

Louisiana Code of Civil Procedure article 2592 provides us with the exclusive list of matters that can be heard by summary process. The only enumerated ground applicable to this proceeding is the catch-all provision, "[a]ll other matters in which the law permits summary proceedings to be used." La. Code Civ. P. art. 2592(13). An eviction is one of the areas in which the law permits summary proceedings. See La. Code Civ. P. art. 4731, et seq.

However, nothing in these articles provide that damages can be recovered in a summary eviction proceeding. In Major v. Hall , 262 La. 243, 248-49, 263 So.2d 22, 24 (La. 1972), the Louisiana Supreme Court held: "Damages are not recoverable on a rule to show cause. [La. Code Civ. P.] art. 2592 does not provide for the recovery of damages in summary proceedings. Damages, in the absence of special provisions, may only be recovered Via ordinaria." (Footnote omitted.) Plaintiffs sought and were awarded damages for prohibiting Ms. Downing from accessing her property, for moving and towing expenses Ms. Downing incurred when she was denied entry onto the land, and rental fees Ms. Downing incurred as a result of not being allowed to put her trailer on the land. There are no "special provisions" allowing these types of damages to be recovered in a summary proceeding. Therefore, the grant of an eviction when ownership was at issue, as well as the award of damages were improperly rendered in a summary proceeding. Accordingly we find that the trial court erred in overruling Ms. McNealty's dilatory exception raising the objection of unauthorized use of summary proceedings.

CONCLUSION

For the foregoing reasons, the trial court's August 1, 2017 judgment granting eviction and awarding damages in favor of Ms. Nakeya Downing and Ms. Mary Morris Ramsey Polk, and overruling Ms. McNealty's exception of unauthorized use of summary proceeding is reversed, and this matter is remanded to the trial court for further proceedings. Ms. McNealty's exception of unauthorized use of summary proceedings is sustained. All costs of the appeal are assessed to plaintiffs/appellees, Ms. Nakeya Downing and Ms. Mary Morris Ramsey Polk.

REVERSED AND REMANDED.

McClendon, J., concurs in the result reached by the majority.

      It appears from the record that Ms. Buckhalter agreed to move her mobile home from the land at issue, and she was not named as a party in plaintiffs' rule to show cause nor did she participate in the underlying litigation.

      Ms. McNealty filed a motion for new trial, which according to a minute entry entered into the record on August 31, 2017, was denied. No written judgment denying the new trial is contained in the record. However, a written judgment is unnecessary. "The denial of a motion for new trial may be made by minute entry and does not require a signed judgment." Shultz v. Shultz , 2002-2534 (La. App. 1st Cir. 11/7/03), 867 So.2d 745, 746, n.1, citing La. Code Civ. P. art. 1914 and Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc. , 32,411 (La. App. 2d Cir. 12/8/99), 748 So.2d 594, 598.

      The judgment of possession was actually rendered in the "Succession of Riley Morris, Sr., Riley Morris, Jr. and Richard Louis Morris. Riley Morris, Jr. and Richard Louis Morris are two of the five heirs of Riley Morris, Sr.

      Exhibit A was attached to the consent judgment, but this court was unable to decipher it.

      Considering our ruling herein, we not that plaintiffs are not precluded from asserting their claims for damages on remand in an ordinary proceeding.