author: Judge Roland L. Belsome

text:
    Wade WHITE v. COX OPERATING, LLC
    NO. 2018-CA-0755
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 20, 2019
    Stephen S. Kreller, Katie M. Cusimano, THE KRELLER LAW FIRM, 757 St. Charles Avenue; Suite 301, New Orleans, LA 70130 and William L. Roberts, Jonathan W. Dettmann, Evelyn Levine, FAEBRE BAKER DANIELS LLP, 90 South Seventh Street, Suite 2200, Minneapolis, MN 55402, COUNSEL FOR PLAINTIFF/APPELLANT
    Robert C. Clotworthy, Daniel J. Dysart, Christopher M. Hannan, Roy C. Cheatwood, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, 201 St. Charles Avenue; Suite 3600, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
   Judge Roland L. Belsome

In this damages suit, the Plaintiff, Wade White, appeals the trial court's granting of summary judgment in favor of the Defendant, Cox Operating, LLC, on both the principal and reconventional demands. The trial court found that Cox's tortious infringement onto Mr. White's oyster lease was covered by a compromise agreement; therefore, it dismissed Mr. White's claims on the principal demand and awarded Cox indemnity and defense costs on its reconventional demand. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

The instant litigation was the subject of a previous appeal to this Court, wherein we summarized the factual and procedural background as follows:

Wade White, a lifetime oysterman, is the owner of multiple oyster leases. Cox Operating, LLC ("Cox") entered into a "Receipt and Release" for $ 100,000 with Mr. White in 2000, when Cox began drilling wells near some of his oyster leases. Subsequently, Cox sought to drill more wells near Mr. White's leases. In 2012, Cox negotiated another drilling release [Letter Agreement] with Mr. White for $ 175,000.
Around April 1, 2012, Mr. White discovered Cox's pilings driven into his oyster leases and water traffic that differed from the agreed upon routes on ingress/egress. Mr. White then contacted Cox, who allegedly admitted the error and promised payment for damages. Cox removed the pilings and then continued following the previous agreed upon ingress/egress routes. Cox later maintained that the executed drilling releases covered any damages caused by the pilings and extra water traffic.
Mr. White then filed a Petition for Damages against Cox due to the pilings. Cox filed a reconventional demand for breach of contract of settlement/compromise, declaratory judgment, and attorney's fees/costs. Cox also filed peremptory exceptions of res judicata and no right of action and sought expedited consideration from the trial court. The trial court heard oral argument, but did not accept live testimony or evidence. After taking the matter under advisement, the trial court granted Cox's exception of res judicata and denied the exception of no right of action.

White v. Cox Operating, LLC , 16-0901, pp. 1-2 (La. App. 4 Cir. 4/5/17), 229 So.3d 534, 536.

In the prior appeal, this Court reversed the trial court's judgment granting the exception of res judicata and remanded the matter for an evidentiary hearing. On remand, Cox filed two motions for summary judgment, one on Mr. White's principal claims, and another on its reconventional demand. After a hearing, the trial court granted summary judgment in favor of Cox, dismissing Mr. White's lawsuit with prejudice and awarding Cox indemnity and defense on its breach of contract claim. The trial court deferred judgment on quantum and attorney's fees. This appeal followed.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. It is reviewed on appeal de novo , with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. , whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. See , e.g. , Dunn v. City of Kenner , 15-1175, p.10 (La. 1/27/16), 187 So.3d 404, 412. In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett , 04-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765. 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 is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id. at 765-66.

DISCUSSION

On appeal, Mr. White avers that the trial court erred in granting summary judgment on the principal and reconventional demands. The only issue before this Court is whether there are genuine issues of material fact that preclude judgment as a matter of law.

In its motion for summary judgment, Cox argued that the Letter Agreement clearly and unambiguously released Cox from any prospective damages to Mr. White's oyster beds arising from or related to drilling the additional wells. Cox further concluded that since the terms of the release were clear and unambiguous, extrinsic evidence cannot be used to determine the intent of the parties.

Cox's argument, however, ignores the jurisprudential exception to the extrinsic evidence rule, particularly as it pertains to compromise agreements. "A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship." La. C.C. art. 3071. The compromise instrument is governed by the same general rules of construction applicable to contracts. Brown v. Drillers, Inc. , 93-1019 (La. 1/14/94), 630 So.2d 741, 748. Therefore, in interpreting a contract, the analysis must start with the premise that legal agreements have the effect of law upon the parties and that the courts are bound to give legal effect to all such contracts according to the true intent of the parties. Maggio v. Parker , 17-1112, p 4 (La. 6/27/18), 250 So.3d 874, 878-79 (citing Leenerts Farms, Inc. v. Rogers , 421 So.2d 216 (La. 1982) and Brown , 630 So.2d at 748 (a compromise "must be interpreted according to the parties' true intent.")). This principle is enshrined in the Civil Code, which states: "A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express." La. C.C. art. 3076.

Accordingly, when the words of the settlement agreement are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art 2046. However, Louisiana courts have crafted a jurisprudential exception to the extrinsic evidence rule for compromise agreements. When there is a dispute as to the scope of a compromise agreement, extrinsic evidence may be considered to decide what differences the parties intended to settle. Maggio , 17-1112, p. 4, 250 So.3d at 879 (citing Brown , 630 So.2d at 749 ). The Louisiana Supreme Court has long held that a general release will not necessarily bar claims that were not intended by the parties to be covered by the release. See id. Intent is determined by construing the compromise instrument "in light of the surrounding circumstances at the time of execution of the agreement." Id. , 17-1112, p. 5, 250 So.3d at 879 (quoting Brown 630 So.2d at 748-49 ). The parties to a release instrument are therefore "permitted to raise a factual issue as to whether unequivocal language in the instrument was intended to be unequivocal." Id.

In interpreting this jurisprudential rule, courts have cautioned that, absent some substantiating evidence of mistaken intent, no reason exists to look beyond the four corners of the instrument to ascertain intent. Id. Therefore, utilizing a case-by-case analysis, Louisiana courts have limited the application of the extrinsic evidence exception to cases in which substantiating evidence is presented establishing either (1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim. Id. When the factual circumstances surrounding the execution of the release instrument do not fall within either of the above categories, Louisiana courts have applied the general rule of construction in La. C.C. art. 2046 and have not hesitated to confine their analysis to the four corners of the instrument. Id.

When determining whether the jurisprudential exception to the extrinsic evidence rule applied, the Maggio Court considered three factors: 1) the terms of the release, 2) the nature of the substantiating evidence presented, and 3) circumstances surrounding the signing of the release. Maggio , 17-1112, p. 5, 250 So.3d at 879. First, we must consider whether the terms of the Letter Agreement clearly and unambiguously released Cox from liability as it relates to driving pilings and navigating support vessels through Mr. White's oyster lease.

In its reasons for judgment, the trial court ruled in favor of Cox agreeing that the terms of the Letter Agreement (release) clearly and explicitly covered the claims set forth in Mr. White's lawsuit.

Significantly, it held that the Letter Agreement did not modify or incorporate all of the terms of the Receipt and Release, and did not contain terms regarding routes of ingress and egress. We disagree.

Although the Letter Agreement contains a general release, there are additional terms that reflect the Receipt and Release was included as part of the Letter Agreement. The subject line of the Letter Agreement states:

Re: Oyster Lease Nos. 30566 and 31050 (collectively, the "Oyster Leases") State of Louisiana Mineral Lease No. 16158 (the "Mineral Lease") Receipt and Release executed by the parties hereto on November 8, 2000 (the "Receipt and Release")

In addition, the Letter Agreement contains the following language:

As you are aware Louisiana Bay Drilling, L.L.C. ("LBD"), through its operator Cox Operating, L.L.C. ("CO"), is engaged in drilling operations on lands covered by the Mineral Lease, including drilling and completion of S.L. 16158 No.1 Well ("Well No. 1") in 2001. LBD expects to commence drilling of a second oil, gas and mineral well ("Well No. 2) pursuant to the Mineral Lease in 2012, and LBD may drill a third and fourth oil, gas and mineral well on lands covered by the Mineral Lease in 2013 and/or 2014 (each, an "Additional Well") following completion of Well No. 2 (Well No. 1, "Well No. 2 and any Additional Wells are referred to collectively as the "Wells").
***
By your acceptance of the Offer and your execution and delivery of this letter agreement, you (i) accept the Offer contained in this letter agreement as full and complete compensation for any and all existing and future Claims (as defined in the Receipt and Release) arising out of or relating to any Well and/or Operations (as defined herein) pertaining to any Well; (ii) represent and warrant to LBD your sole ownership of the Oyster Leases; (iii) agree that execution and delivery of this letter agreement does not prejudice any rights, claims or defenses of any of the Released Parties under the Receipt and Release; and (iv) agree not to sue or make any claim against any LBD/CO Party (as defined herein) for any matter directly or indirectly arising out of, in connection with or in any way related to Operations relating to any Well or any other matter or conduct whatsoever (whether action or inaction) of any LBD/CO Party involving Operations relating to any Well.
***
... As used herein, "Operations" means any and all activities by or on behalf of any LBD/CO Party that relate in any way to any Well (or the minerals produced therefrom), including; without limitation: drilling, completing, recompleting, reworking, sidetracking, deepening, dredging, propwashing, equipping, installing, maintaining or removing of pipelines or other facilities, servicing, producing, plugging and abandonment activities, remediation of any kind, gathering, transportation, treating, processing, compression and marketing of oil, gas or other minerals.
... The parties hereto agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the terms and intent of this letter agreement. Together with the Receipt and Release, this letter agreement contains the entire understanding of the parties relating to the subject matter contained herein and supersedes all prior agreements and understandings, written or oral, relating to the subject matter hereof; provided, however, that the Receipt and Release shall remain in full force and effect (emphasis supplied). ...

When viewing the Letter Agreement as a whole, we find that that the Letter Agreement is, at the very least, susceptible to another interpretation: the Receipt and Release was incorporated into the terms of the Letter Agreement. In particular, there is language that states that the Letter Agreement, "together with the receipt and release," contains the entire understanding of the parties. Moreover, the Letter Agreement specifically provides that the Receipt and Release remains in full force and effect.

Given this interpretation, the limitations on the route of ingress and egress, which were material to the Receipt and Release agreement, would also govern the Letter Agreement. In relation to the routes of ingress and egress, the Receipt and Release contains exhibits, which provide for the agreed upon routes. The Receipt and Release states the following:

A material consideration of this agreement without which the Releasing Parties would not have entered into this agreement is that the Released Parties agree to follow the route of ingress/egress as depicted on Exhibit "A" and place the proposed flowline/pipeline as depicted on the attached Exhibit "B" both of which are annexed hereto and considered part hereof and are further considered part of this release agreement. No substantial change in the route depicted on Exhibit "A" or the flowline/pipeline placement as to the water bottoms depicted on Exhibit "B" may be made without the express written consent of the Releasing Parties, which consent shall not be unreasonably withheld.

Attached as Exhibits "A" and "B" to the Receipt and Release is a map designating a "proposed rig route" and a proposed "flowline/pipeline." The contract does not contain a definition of these terms. Since words of art and technical terms must be given their technical meaning when the contract involves a technical matter, testimony is necessary to determine the intent of the parties concerning whether the Letter Agreement limited Cox to the same rig routes of ingress and egress set forth in the Receipt and Release and as to the meaning of "rig route." See La. C.C. art. 2047 ; Red Willow Offshore, LLC v. Palm Energy Offshore LLC , 15-0512, pp. 6-7 (La. App. 4 Cir. 2/3/16), 185 So.3d 293, 297-98. Since both the Letter Agreement and the Receipt and Release require additional evidence for interpretation purposes, we cannot say that Mr. White clearly and unambiguously released Cox from liability as it relates to driving pilings and navigating support vessels through Mr. White's oyster lease.

Next, even assuming that the terms of the Letter Agreement were clear, Mr. White has provided sufficient evidence to establish that he did not intend to release Cox from the claims asserted in his lawsuit. Attached to his motion for summary judgment is his affidavit, which specifically states that he did not intend to release Cox from damages associated with pile driving and vessel traffic directly on his oyster lease. In support, he noted that the Letter Agreement included the drilling of three additional wells, Well Nos. 2, 3, and 4. Well No. 2 was drilled without incident, in keeping with the prior routes of ingress and egress used for Well No. 1.

Mr. White also stated that when he noticed the pilings and vessels on his lease, he immediately called Cox, who apologized for the mistake and assured that the issue would be resolved. Cox additionally offered him $ 25,000.00 for the damage. To substantiate this statement, Mr. White submitted a letter and deposition of Rodney Dykes, an employee of Cox. In the letter, Mr. Dykes offered a monetary settlement, agreeing that the pile driving activities and vessel traffic on Mr. White's oyster lease were outside of their agreement. In his deposition, Mr. Dykes testified that the activities were a mistake, which deviated from the drilling plan. Further, Mr. White submitted maps that show the vessels while moored to the pilings on his leasehold and a map showing the subsequent removal of the vessel traffic from his leasehold.

Finally, the circumstances surrounding the signing of the agreement also give rise to an issue of fact concerning the scope of the Letter Agreement. In particular, Mr. White's affidavit and supporting documentation suggest that the parties intended to use the same routes of ingress and egress that were used for Well Nos. 1 and 2. Mr. White's affidavit and attachments specify that at the time of signing the agreement, Mr. White was provided with permit applications Cox submitted to the Louisiana Wildlife and Fisheries, along with reports that indicated the same access routes that were previously used would be utilized again.

Given the foregoing circumstances, Mr. White has provided sufficient evidence to support the conclusion that he did not intend to release Cox from the activities set forth in his lawsuit, thus triggering the exception to the extrinsic evidence rule.

Accordingly, we find there are genuine issues of material fact regarding the interpretation of the release and the intent of the parties sufficient to defeat summary judgment on Mr. White's principal demand. In light of this finding, the trial court's summary judgment on the reconventional demand is premature.

CONCLUSION

For the reasons assigned, the trial court's summary judgment on both the principal and reconventional demand is reversed. The matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      Cox's predecessor-in-interest, Cliffwood Production Co., was party to the 2000, Receipt and Release agreement.

      Cox drilled a second well without incident. The issue in this case concerns the drilling of Well Nos. 3 and 4.

      The trial court stated that the Letter Agreement covered: "any and all existing and future Claims (as defined in the Receipt and Rel[e]ase) arising out of or relating to any Well and/or Operations (as defined [in the Letter Agreement] ) pertaining to any Well[.]"

      Tellingly, the letter distinguishes damages associated with propwashing operations as being covered by the Letter Agreement.

      As such, we pretermit discussion of the other issues briefed by the parties.


source: Caselaw Access Project

author: JAMES F. MCKAY III, CHIEF JUDGE

license: Public Domain

text:
    Kevin WILLIAMS v. P. Michael BREEDEN, III, Breeden Law Firm, LLC, and XYZ Insurance Company
    Breeden Law Firm, L.L.C., and P. Michael Breeden v. Kevin Williams
    NO. 2018-CA-1015 NO. 2018-CA-1016
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 27, 2019
    DWAYNE P. SMITH, EDWIN M. SHORTY, JR., NATHAN CHIANTELLA, EDWIN M. SHORTY, JR. & ASSOCIATES, 650 Poydras Street, Suite 2515, New Orleans, Louisiana 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    CHARLES R. JONES, ATTORNEY AT LAW, 4608 Rye Street, Metairie, Louisiana 70006, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Edwin A. Lombard )
   JAMES F. MCKAY III, CHIEF JUDGE

In this nullity action, which arises out of a breach of contract/legal malpractice case, the appellants, P. Michael Breeden, the Breeden Law Firm LLC, and XYZ Insurance Company, appeal the trial court's sustaining of a peremptory exception of prescription filed by the appellee, Kevin Williams, which dismissed with prejudice the appellants' petition to annul. We affirm.

FACTS AND PROCEDURAL HISTORY

By way of background, Kevin Williams alleges that on December 22, 2011, he entered into an employment contract with P. Michael Breeden and the Breeden Law Firm to represent him in a bankruptcy filing. He further alleges that Mr. Breeden and the Breeden Law Firm failed to timely institute a Chapter 13 bankruptcy on behalf of Mr. Williams, which resulted in two pieces of immovable property owned by Mr. Williams being sold at a sheriff's sale to Iberia Bank.

On May 3, 2013, Mr. Williams filed a petition for damages based on legal malpractice against P. Michael Breeden, the Breeden Law Firm, and XYZ Insurance Company (from this point forward, these parties will be referred to collectively as Mr. Breeden). Following service on Mr. Breeden, Mr. Williams filed a motion for preliminary default on July 21, 2014. On July 24, 2014, Mr. Breeden filed a motion for extension of time. On July 25, 2014, Mr. Williams sought to confirm the preliminary default, but his confirmation was denied. Mr. Williams filed a number of exhibits to support his motion for default on July 28, 2014. Then, on August 12, 2014, the trial court entered a default judgment against Mr. Breeden and in favor of Mr. Williams, awarding him damages in the amount of $ 536,000.00.

On August 8, 2015, Mr. Breeden filed a petition to annul stating that the judgment was an absolute nullity under La. C.C.P. art. 2002 based on the failure to notify Mr. Breeden. This petition to annul was dismissed without prejudice on February 2, 2016, for failure to issue citation and service to Mr. Williams.

On February 20, 2018, in a separate proceeding, Mr. Breeden filed a second petition to annul seeking to annul the August 12, 2014 default judgment. Mr. Breeden then filed a motion to transfer and consolidate the new petition with the earlier proceedings and the case was transferred and consolidated on February 22, 2018. Mr. Williams then filed a peremptory exception of prescription alleging that the new petition to annul was prescribed pursuant to the provisions of La. C.C.P. art. 2004 (B). A hearing on the exception took place on June 29, 2018, and a judgment was signed on July 5, 2018, maintaining the exception of prescription and dismissing the petition to annul the default judgment with prejudice at Mr. Breeden's costs. It is from this judgment that Mr. Breeden now appeals. Mr. Williams has also filed an answer to the appeal, seeking attorney's fees and costs for the filing of a frivolous appeal.

DISCUSSION

On appeal, Mr. Breeden raises the following assignments of error: 1) the trial court erred in granting the exception of prescription as Mr. Breeden was not served with notice prior to the hearing date; and 2) the trial court erred in granting the exception of prescription because the petition to annul clearly demonstrates on its face that the judgment is an absolute nullity, which can be brought at any time. Mr. Williams also seeks attorney's fees and costs for a frivolous appeal.

In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court's finding of fact was manifestly erroneous. Board of Com'rs v. Estate of Smith, 03-1949, 03-1950 (La.App. 4 Cir. 9/2/04), 881 So.2d 811. The standard of review of a district court's finding of facts supporting prescription is that an appellate court should not disturb a finding of the district court unless it is clearly wrong. Albe v. City of New Orleans, 14-0186 (La.App. 4 Cir. 9/17/14), 150 So.3d 361.

While Mr. Breeden argues that he was not properly noticed for the June 29, 2019 hearing, the record reflects that at an earlier setting on May 25, 2018, he was noticed in open court that due to the funeral for Judge Claire Jupiter, all matters were continued until June 29, 2018, without further notice to the parties. Accordingly, the record does not support the argument by Mr. Breeden that he had no notice of the June 29, 2018 hearing.

Mr. Breeden also argues that the underlying default judgment is an absolute nullity because Mr. Williams did not notify him of the preliminary default within seven days before the confirmation of the preliminary default. Although Mr. Breeden argues that La. C.C.P. art. 2002 applies to his petition for nullity, the jurisprudence supports the proposition that La. C.C.P. art. 2004 applies in this case.

In Russell v. Illinois Central Gulf Railroad, 96-2649, p. 2 (La. 1/10/97), 686 So.2d 817, 819, the Louisiana Supreme Court held that it is an "ill practice" to confirm a judgment of default without notice against a party that has already filed pleadings constituting an appearance of record in the litigation proceedings. "Ill practice" is any improper practice or procedure that operates, even innocently, to deprive a litigant of some legal right, as that term is used in statutes providing that a final judgment obtained by fraud or ill practices may be annulled. Mike v. Bob's Painting, 07-2190, p. 4 (La.App. 1 Cir. 9/26/08), 995 So.2d 43, 47.

In the instant case, a review of both petitions for nullity filed by Mr. Breeden clearly shows that he complained of the ill practice of Mr. Williams's former counsel. Mr. Williams filed a motion for preliminary default on July 21, 2014, which was granted. Mr. Breeden filed a motion for extension of time for seven days to file responsive pleadings on July 24, 2014. Mr. Breeden made no other appearance, filed no other responsive pleading, and the seven-day extension expired before the default judgment was confirmed on August 12, 2014. However, if this Court assumes that the counsel for Mr. Williams did not properly notify Mr. Breeden, then that would be considered an "ill practice" pursuant to La. C.C.P. art. 2004.

A default judgment, although founded on ill practices, must be presumed to have been regularly obtained unless the contrary is shown to be of record. Phillips v. Space Master Interim. Inc., 96-877, p. 2 (La.App. 5 Cir. 5/14/97), 696 So.2d 64, 66. According to La. C.C.P. art. 2004 (B), an action to annul a judgment on the grounds of ill practices must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices. The original petition for nullity was filed on August 8, 2015. Therefore, Mr. Breeden had knowledge on that date of the facts supporting his petition for nullity. When his petition was dismissed without prejudice on February 2, 2016, he could have refilled it at any time. However, he chose to wait until February 20, 2018 to file another petition (a delay of more than two years). Clearly, his claim has prescribed.

Damages for frivolous appeal are awarded pursuant to La. C.C.P. art. 2164. However, this statute is penal in nature and must be strictly construed. Moreover, appeals are favored, and damages for frivolous appeal are not granted unless they are clearly due. Even when an appeal lacks serious legal merit, damages for frivolous appeal will not be made unless it is clear that the appeal was taken solely for the purpose of delay or that appellant's counsel is not serious in the position that he advances. Elloie v. Anthony, 95-0238, p. 3 (La.App. 4 Cir. 8/23/95), 660 So.2d 897 ; Hunt v. Prolux, 99-1804 (La.App. 4 Cir. 1/26/00), 753 So.2d 318.

In the instant case, we cannot find that the appeal was taken solely for delay or that appellant's counsel is not serious in the position that he advances. Accordingly, we will not award damages for the filing of a frivolous appeal.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court's sustaining Mr. Williams's exception of prescription and its dismissal with prejudice of Mr. Breeden's petition to annul. We also decline to award damages for a frivolous appeal.

AFFIRMED


author: CHUTZ, J.

text:
    Jerry NEAL Sr. v. ST. TAMMANY PARISH HOSPITAL
    Jerry Neal Sr. v. St. Tammany Parish Hospital
    2018 CA 0105, 2018 CA 0106
    Court of Appeal of Louisiana, First Circuit.
    October 31, 2018
    Chase T. Villeret, D. Steven Wanko, Jr., Graham Brian, Covington, Louisiana, Counsel for Claimant-Appellant, Jerry Neal, Jr.
    Matthew D. Crumhorn, John J. Rabalais, Megan C. Gladner, Covington, Louisiana, Counsel for Defendant-Appellee, St. Tammany Parish Hospital
    BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
   CHUTZ, J.

Claimaint-appellant, Jerry Neal, Jr., appeals the judgment of the Office of Workers' Compensation (OWC), dismissing his claims for indemnity benefits against his former employer, St. Tammany Parish Hospital (STPH). We affirm.

BACKGROUND

The parties stipulated that Mr. Neal was an employee of STPH on or about October 24, 2014. He was involved in an accident arising out of his employment and in the course and scope of his employment. It is undisputed that, at the time of his injury, Mr. Neal was trying to lift a heavy patient as part of his job duties as a radiology technician. As a result of an accident on October 24, 2014, Mr. Neal sustained an injury to his lumbar spine at the L5-S1 level. Mr. Neal was provided modified-duty work by STPH after the October 24, 2014 accident for which he earned at least 90 percent of his pre-injury wage.

Mr. Neal subsequently returned to work at STPH in April 2015 in a modified-duty position in the radiology department, working within his medical restrictions. In June 2015, Mr. Neal returned to full duty as a radiology technician without any medical restrictions. On September 15, 2015, Mr. Neal was involved in another accident arising out of his employment, when he was picking up a patient and felt significant pain. As a result of the September 15, 2015 accident, Mr. Neal aggravated his lumbar spine condition at the L5-S1 level. He was again provided with modified-duty work after the September 15, 2015 accident at which he again earned at least 90 percent of his pre-injury wages.

On March 4, 2016, Mr. Neal filed disputed-claim-for-compensation forms with the OWC, seeking temporary total disability (TTD) benefits or, alternatively, supplemental earning benefits (SEB). He also requested back payments for indemnity benefits, costs, penalties, attorney fees, and interest for STPH's alleged failure to timely institute indemnity benefits.

A hearing on the merits of Mr. Neal's claims was held on July 20, 2017, at which testimonial and documentary evidence was adduced. On October 13, 2017, the OWC issued a judgment, which determined, among other things, that Mr. Neal had failed to carry his burden of proof on his entitlement to either TTD or SEB indemnity benefits. As such, the OWC concluded that STPH did not owe any penalties or attorney fees. Mr. Neal appealed.

DISCUSSION

To support his claims of entitlement to indemnity benefits, the deposition testimony of Dr. Mohammad Almubaslat, the neurosurgeon who treated Mr. Neal after both accidents, was admitted at the hearing. At his deposition on May 26, 2016, Dr. Almubaslat stated that Mr. Neal was restricted from engaging in any work after September 15, 2015, due to his functional limitations from the back injury. But the record is devoid of any evidence showing that either Mr. Neal or Dr. Almubaslat provided STPH, or its workers' compensation insurer, HSLI, with notice of the work restriction. The only evidence provided to STPH or HSLI after the September 15, 2015 work injury showing that Mr. Neal had any medical restrictions placed on his ability to work was a form, dated September 16, 2015, from the physician/nurse practitioner who treated Mr. Neal on the day that he sustained the second work-related accident. According to the restrictions set forth in the form, Mr. Neal was not permitted to lift, carry, push, or pull anything over 10 pounds until "MRI/sees neurosurgeon."

Despite Dr. Almubaslat's May 26, 2016 deposition testimony stating that Mr. Neal had been restricted from work after the September 15, 2015 accident, and the return-to-work slip provided to STPH, which commenced on the day after Mr. Neal's second work-related injury and expressly limited the work restrictions until Mr. Neal received additional medical treatment, Mr. Neal acknowledges that he requested work and was given a sedentary, modified-duty position answering phones for STPH in the radiology department. On October 14, 2015, Mr. Neal informed STPH Human Resources Specialist, Ellen Hobgood, he was going to have neck surgery for an unrelated, non-work injury. A return-to-work evaluation form, dated October 14, 2015 and signed by Dr. Almubaslat, was provided to STPH, indicating that Mr. Neal was unable to work due to a surgery scheduled for October 20, 2015. A "Certification of Health Care Provider" form, associated with the Family and Medical Leave Act of 1993 (FMLA), provided to the U.S. Department of Labor, and signed by both Dr. Almubaslat and Mr. Neal on November 5, 2015, indicated that Mr. Neal's anticipated incapacity for the neck surgery was from October 20, 2015 through January 20, 2016, and that he was on full work restrictions until January 20, 2016.

According to Ms. Hobgood, Mr. Neal was placed on Non-FMLA to allow him to have the neck surgery. She said that she explained to Mr. Neal that he had utilized all of his FMLA-leave and, therefore, his position would not be protected by the FMLA during his absence. But Non-FMLA leave was available to Mr. Neal, which allowed him to nevertheless remain an employee of STPH with all his benefits.

Ms. Hobgood sent a letter, dated November 5, 2015, to Mr. Neal advising him that his requested Non-FMLA leave had been approved, commencing on October 14, 2015, which was the first day that he missed work due to the neck injury. The letter expressly advised Mr. Neal, "Your Non-FMLA leave of absence is only approved for the length of time specified by your treating physician, not to be extended beyond a Non-FMLA expiration date of 01/05/2016." The letter further apprised Mr. Neal:

Please note: A Non-FMLA leave of absence does not provide job protection. The privilege of returning to work at STPH from a Non-FMLA leave is subject to conditions and the availability of positions prevailing at the time of your release to return to employment work.
Once released, it is your responsibility to take immediate steps to formally apply for any vacant , posted positions for which you qualify. If you are not successful in obtaining a position once released by your physician, your employment with [STPH] will end and you will be officially separated.
Also note, A Return to Work Evaluation form must be completed by your physician and returned to me in Human Resources before you may return to work and prior to the expiration date of your approved Non-FMLA.
Throughout your Non-FMLA leave, it remains your responsibility to notify Human Resources of your anticipated release date, including if you have no plans to return.

Ms. Hobgood stated that she did not hear back from Mr. Neal until January 4, 2016. She testified that Mr. Neal indicated he was not released to return to work and would most likely need another neck operation. Ms. Hobgood recalled that when Mr. Neal said that he was not released to return to work because of his neck, he did not mention anything about his back. She subsequently sent a termination letter to Mr. Neal explaining that as of January 5, 2016, his Non-FMLA leave had expired and that because he had "not been medically released per [their] phone conversation yesterday," his employment had officially been separated.

The deposition testimony of HSLI Senior Claims Consultant, Tami Bartlett, was admitted into evidence. Ms. Bartlett testified that she did not hear anything from or about Mr. Neal from the time he went out for neck surgery until January 2016. Mr. Neal contacted Ms. Bartlett saying he could not work and she requested documentation from Dr. Almubaslat. When she received Dr. Almubaslat's January 22, 2016 letter restricting Mr. Neal from any work due to his back injury, she requested a second medical opinion. She noted that Mr. Neal had not received any medical treatment for his back injury since October 2015 and had not been working so she did not understand why he was no longer able to work in the sedentary, modified-duty position he had successfully done prior to the neck surgery.

During his May 26, 2016 deposition, after Dr. Almubaslat had been apprised for the first time of the sedentary, modified-duty work that STPH had made available to Mr. Neal immediately after the September 15, 2015 accident, he stated, "My, my - and he could have [worked the sedentary, modified-duty position].... My restriction was always for physical activity and for prolonged ... sitting." Dr. Almubaslat also indicated that he "still would probably ... have restricted the hours" that Mr. Neal could have worked at the sedentary, modified-duty position.

TTD Indemnity Benefits:

Temporary total disability means the inability to engage in any gainful occupation, whether or not it is the same or one similar to that in which the employee was customarily engaged when injured. La. R.S. 23:1221(2)(a). A workers' compensation claimant seeking temporary total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. See Crow v. St. Tammany Par. Gov't , 2016-0200 (La. App. 1st Cir. 12/22/16), 210 So.3d 466, 468-69, writ denied. 2017-0122 (La. 3/13/17), 216 So.3d 807.

Temporary total disability can be proven by medical and lay testimony. The fact finder must weigh all the evidence, medical and lay, in order to determine if the claimant has met his burden of proof. The claimant must provide objective, expert testimony as to his medical condition, symptoms, pain, and treatment, in addition to personal testimony, in order to meet the clear and convincing evidence standard.

Whether a claimant is entitled to TTD indemnity benefits is a factual finding and, hence, subject to the manifest error or clearly wrong standard of appellate review. This factual finding by OWC should be given great weight and should not be overturned absent manifest error. See New Line Envtl. & Canal HR v. Davis , 2015-1885 (La. App. 1st Cir. 10/7/16), 205 So.3d 921, 925, writ denied, 2016-1996 (La. 12/16/16), 211 So.3d 395. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Seal v. Gaylord Container Corp. , 97-0688 (La. 12/02/97), 704 So.2d 1161, 1164.

We find that a reasonable factual basis exists for OWC's conclusion that Mr. Neal was not entitled to TTD indemnity benefits from January 4, 2016 through May 27, 2016. Even Dr. Almubaslat, his treating physician, indicated that Mr. Neal was capable of working the sedentary, modified-duty position that he had actually worked from September 16, 2015 through October 14, 2015. Mr. Neal provided no expert medical evidence to the contrary. Mr. Neal's reliance on Dr. Almubaslat's deposition testimony, indicating that the physician had restricted Mr. Neal from working after the September 15, 2015 accident, was subsequently qualified by Dr. Almubaslat and, more importantly, by Mr. Neal himself since he acknowledged that he successfully worked from September 16, 2015 until he voluntarily left to have surgery on October 14, 2015, for an injury that was not work-related and for which he, therefore, was not entitled to workers' compensation TTD indemnity benefits.

We find no merit in Mr. Neal's assertion that the OWC legally erred because it imposed an obligation on him to inform Dr. Almubaslat of a job that he no longer had by the time he saw the neurosurgeon on January 22, 2016. To obtain TTD indemnity benefits, Mr. Neal was required to demonstrate his inability to engage in any gainful occupation or work including positions other than as a radiology technologist. This he failed to do since Dr. Almubaslat testified that his letter restricting Mr. Neal from work was "in the light that he was going back as a radiology [technician]." Given Mr. Neal's acknowledgment that he worked in the sedentary, modified-duty position immediately after the September 15, 2015 accident; the lack of medical evidence supporting any change in his medical condition as of January 4, 2016, the last day of his non-FMLA leave; and Dr. Almubaslat's testimony qualifying his work restrictions for Mr. Neal's return to employment on January 22, 2016, the OWC was not manifestly erroneous in concluding that Mr. Neal failed to sustain his burden of proof by clear and convincing evidence. Accordingly, there was no error in the OWC's dismissal of Mr. Neal's claims for TTD indemnity benefits from January 4, 2016 through May 27, 2016.

SEB Indemnity Benefits:

The purpose of SEB indemnity benefits is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Pinkins v. Cardinal Wholesale Supply, Inc. , 619 So.2d 52, 55 (La. 1993). An employee is entitled to receive SEB indemnity benefits if he sustains a work-related injury that results in his inability to earn 90 percent or more of his average pre-injury wage. See La. R.S. 23:1221 (3)(a)(i). Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount. Ziegler v. Slidell Mem'l Hosp. , 2017-0671 (La. App. 1st Cir. 11/2/17), 236 So.3d 565, 568. It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic location. La. R.S. 23:1221(3) (c)(i) ; Poissenot v. St. Bernard Par. Sheriff's Office , 2009-2793 (La. 1/9/11), 56 So.3d 170, 174. Whether a claimant has met his initial burden of showing entitlement to SEB is a factual finding and, therefore, subject to the manifest error or clearly wrong standard of appellate review. See Poissenot , 56 So.3d at 174 (citing Seal , 704 So.2d at 1166 ).

A reasonable factual basis also exists for the OWC's conclusion that Mr. Neal failed his burden of proving entitlement to SEB indemnity benefits from May 27, 2016 through December 12, 2016. As the OWC judge noted, after the September 15, 2015 accident:

claimant was provided a modified job within the restrictions that arose from his work-related accident. Then, claimant voluntarily stopped working at that modified job to have [neck] surgery not related to any job injury with [STPH]. When claimant ceased to work at the modified job with his employer, it was not for any reason due to that work-related accident.

Thus, Mr. Neal failed to sustain his burden of proving that it was the work-related injury that resulted in his inability to earn 90 percent of his pre-injury wages. See Poissenot , 56 So.3d at 176 (noting that, implicit in claimant's burden of proof under La. R.S. 23:1221(3), is a showing that the injury, and not some other cause, resulted in his inability to retain his pre-injury job).

The OWC's finding that Mr. Neal's voluntary cessation from working the sedentary, modified-duty position, answering phones in STPH's radiology department was the cause of his inability to retain his pre-injury job is amply supported by the evidence and, therefore, not manifestly erroneous or clearly wrong. As such, we find no error in the dismissal of Mr. Neal's claim for SEB indemnity benefits from May 27, 2016 through December 12, 2016, because he failed to meet his burden of proof.

DECREE

Because reasonable factual bases exist for the dismissal of Mr. Neal's alternative claims for TTD and SEB indemnity benefits against defendant-appellee, St. Tammany Parish Hospital, the OWC's judgment is affirmed. Appeal costs are assessed against claimant-appellant, Jerry Neal.

AFFIRMED.

      Although the original pleading refers to claimant as "Jerry Neal[,] Sr., he subsequently amended his pleading to correctly identify himself as "Jerry Neal, Jr."

      It is undisputed that Mr. Neal was provided his full wages in the sedentary, modified-duty position.

      It is undisputed that on December 13, 2016, Mr. Neal underwent a L5-S1 TLIF surgery on his back and that, as a result, he began receiving TTD indemnity benefits, which he continued to receive as of the date of the hearing.


author: PETTIGREW, J.

text:
    MID-CITY AUTOMOTIVE, L.L.C. v. State of Louisiana, the DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; Office of State Police
    NO. 2018 CA 0056
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered November 07, 2018
    LARRY S. BANKSTON, JENNA H. LINN, BATON ROUGE, LA, ATTORNEYS FOR PLAINTIFF-APPELLANT, MID-CITY AUTOMOTIVE, LLC
    PAUL E. SCHEXNAYDER, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLEE, STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, OFFICE OF LOUISIANA STATE POLICE
    BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
   PETTIGREW, J.

In this suit for declaratory and injunctive relief against the State of Louisiana, Department of Public Safety and Corrections, Office of State Police ("Office of State Police"), the plaintiff challenges the validity of the Schedule of Fines and license suspension and revocation provisions contained in LAC 55:I.1907. For the reasons set forth herein, we reverse in part and render judgment, and vacate in part and remand to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Mid-City Automotive, LLC ("Mid-City"), operates a towing company in New Orleans, which conducts nonconsensual tows of vehicles from private property under storage inspection license # 15-36-MI087885. In 2015, Mid-City received three citations from the Office of State Police for violations of LAC 55:I.1930, which regulates towing of vehicles from private property, and administrative penalties were assessed under the Louisiana Administrative Code for each violation. For the first two citations issued to Mid-City on March 19 and September 1, 2015, administrative fines of $250.00 and $300.00, respectively, were assessed under LAC 55:I.1907(A)(4). Following the third citation on September 22, 2015, Mid-City's storage inspection license was suspended for thirty days under LAC 55:I.1907(A)(5). Mid-City unsuccessfully appealed the suspension of its license in a separate proceeding.

Thereafter, on April 11, 2016, Mid-City filed this suit for declaratory and injunctive relief under La. R.S. 49:963, alleging that certain provisions of LAC 55:I.1907(A) were invalid and requesting an injunction against further enforcement of fines, suspensions, and revocations under § 1907. After a bench trial, the district court ruled in favor of the Office of State Police and dismissed Mid-City's petition with prejudice. Mid-City appealed.

DISCUSSION

The Louisiana Towing and Storage Act ("the Act"), La. R.S. 32:1711 et seq., was enacted to regulate and license those who conduct towing and storage businesses in Louisiana. La. R.S. 32:1711. The legislature vested the Office of State Police with regulatory authority to administer the Act and to promulgate rules and regulations to carry out the provisions of the Act. La. R.S. 32:1714 ; Capitol City Towing & Recovery Inc. v. State ex rel. Dep't of Pub. Safety & Corr., 03-0647, pp. 2-3 (La.App. 1 Cir. 2/23/04), 873 So.2d 706, 708, writ denied sub nom; Capital City Towing & Recovery Inc. v. State ex rel. Dep't of Pub. Safety & Corr., 04-0770 (La. 6/4/04), 876 So.2d 94. Subject to the provisions of the Administrative Procedure Act, La. R.S. 32:1714 states that the Office of State Police shall:

(1) Adopt rules and regulations to govern the towing and storage industry in Louisiana.
(2) Adopt rules and regulations to ensure that no person shall operate a towing business when they arrive at the scene of a vehicle accident without being called by the police or by the owner of the vehicle or his representative.
(3) Adopt and levy fines for violation of this Chapter or any rule or regulation adopted pursuant to this Chapter.
(4) Make recommendations to the office of motor vehicles in reference to the examination, issuance, suspension, or revocation of licenses for tow trucks and operators.
(5) Adopt a schedule of maximum fees which may be charged for the notifications required by this Chapter.
(6) Repealed by Acts 2012, No. 806, § 2.
(7) Insure compliance of every tow truck, towing facility, storage facility, and every employee subject to or licensed in accordance with this Chapter with the laws of this state, regulations of the Federal Motor Carrier Administration, and regulations promulgated pursuant to this Chapter.

Pursuant to this delegation of authority, the Office of State Police promulgated LAC 55:I.1901 et seq., which contains rules and regulations applicable to any person or entity engaged in the business of towing, recovery, or storage of vehicles for compensation in Louisiana. LAC 55:I.1901. Louisiana Administrative Code 55:I.1907 provides for the assessment of administrative penalties for violations of the Act or the adopted and promulgated regulations, and states, in part:

A. Administrative Penalty Assessment
1. A tow truck owner or operator, an employee or the agent of a tow truck owner or operator, a storage facility owner or operator, an employee or the agent of a storage facility owner or operator, determined by the [Office of State Police ] to have committed a violation of R.S. 32:1711 et seq., or adopted and promulgated regulations as provided in this Chapter, is subject to legal sanctions being imposed against them. Legal sanctions shall include, but are not limited to, administrative civil penalties, warnings, and suspension and/or revocation of the operator's license, storage inspection license, tow truck license plate.
2. The [Office of State Police] shall issue a citation or inspection report for violations of law, rule or regulation which shall specify the offense committed. The citation or inspection report shall provide for the payment of an administrative penalty to the [Office of State Police] in an amount prescribed by the [Office of State Police] or if a suspension or revocation is being imposed, specify the duration of said suspension or revocation. The penalty shall be paid or imposed within 45 days of issuance and mailing, by first class mail, of the initial notice of violation, unless within that period the person to whom the citation is issued files a written request for an administrative hearing within the 45 days.
3. All assessed and adjudicated administrative penalties and fees shall be paid to the [Office of State Police] and deposited in the towing and storage fund.
4. Schedule of Fines
Schedule of Fines
The following range of fines will be set for violations cited under the corresponding sections. When citing specific violations, the [Office of State Police] will set the fine within the corresponding range.
Exemptions and Other Laws (§1903, 1905, and §1909) $50-$500 Code of Conduct (§1911) $100-$500 Tow Truck License Plate (§1913) $50-$500 Insurance Requirements (§1915) $50-$500 Driver's License Required Skills (§1917) $50-$500 Tow Truck Lighting; Equipment (§1919) $25-$100 Required Equipment (§1921) $25-$100 Capacities of Tow Equipment (§1923) $100-$500 Tow Truck Load Limitations (§1925) $100-$500 Inspections by the [Office of State Police] (§1927) $100-$500 Towing Service to Use Due Care (§1929) $100-$500 Vehicles Towed from Private Prop. (§1930) $200-$500 Storage Facility; Licensing Requirements (§1931) $100-$500 Requirements for ORSV (§1933) $100-$500 Owner Notification of Stored Vehicle (§1935) $100-$500 Administrative Fees (§1937) $100-$500 Permits to Sell and Dismantle (§1939) $100-$500 Towing/Storage Facilities Requirement (§1941) $50-$500 Storage Rates (§1943) $100-$500 Gate Fees (§1945) $100-$500 Law Enforcement Rotation Lists (§1947) $50-$500
5. Effective January 1, 2014 suspensions may be imposed on a third or subsequent violation when a towing or storage facility has been found in violation on at least two prior and separate inspections within a 12-month period. Suspensions shall be a minimum of 30 days. Violations of these rules or the Towing and Storage Act during the suspension or a violation of the terms of the suspension shall result in an automatic revocation of the storage license.
6. Effective January 1, 2014 revocations may be imposed when a storage facility has met the requirements for a second suspension within a 3-year period. The immediate revocation of a storage license may be imposed when a towing or storage facility is determined by the inspecting officer to not have the proper insurance as required by this Chapter or is in violation of "dutiful conduct" as found in § 1911.B.2.e of this Chapter. Revocations for no or improper insurance shall be recalled and the license reinstated once the facility provides proof of required insurance.

The three citations that led to the suspension of Mid-City's storage inspection license were all for improper nonconsensual tows in violation of LAC 55:I.1930, which states that tow truck company owners, operators, and employees shall comply with the provisions of La. R.S. 32:1736 when towing vehicles from private property. The Act provides that a tow truck operator who tows a vehicle in violation of La. R.S. 32:1736 shall be subject to administrative and criminal penalties. Suspension or revocation of a storage inspection license is not provided for in the Act. Nevertheless, under the regulations promulgated by the Office of State Police, Mid-City's storage inspection license was suspended for its third violation.

Mid-City argues that the Schedule of Fines in LAC 55:I.1907(A)(4) is invalid because the legislature's delegation of authority to the Office of State Police in La. R.S. 32:1714(3) to adopt and levy fines for violations of the Act or any rules or regulations adopted pursuant thereto was an unconstitutional delegation of legislative authority to an administrative agency. Mid-City also argues that the license suspension and revocation provisions of LAC 55:I.1907(A)(5) and (6) are invalid because they exceed the scope of the authority granted to the Office of State Police by La. R.S. 32:1714 and because they are unconstitutionally vague and ambiguous.

The Administrative Procedure Act provides that the validity or applicability of an agency rule may be determined in an action for declaratory judgment in the district court of the parish in which the agency is located. La. R.S. 49:963(A)(1). In such an action, the district court shall declare the rule invalid or inapplicable if it finds that the rule: (1) violates constitutional provisions, (2) exceeds the statutory authority of the agency, or (3) was adopted without substantial compliance with required rulemaking procedures. La. R.S. 49:963(C). If a plaintiff's challenge to the validity of a particular rule is based on one of these specific grounds, then an action for declaratory judgment under La. R.S. 49:963 is the appropriate and only procedural vehicle by which to challenge the rule. Liberty Mutual Insurance Company v. Louisiana Insurance Rat ing Commission, 96-0793, p. 9 (La.App. 1 Cir. 2/14/97), 696 So.2d 1021, 1027 ; Louisiana Chemical Association v. Department of Environmental Quality , 577 So.2d 230, 233 (La.App. 1 Cir. 1991). However, prior to seeking declaratory judgment in district court under La. R.S. 49:963, the plaintiff must satisfy the following prerequisites set forth in Subsection D of that statute: (1) the plaintiff has requested agency review of the validity or applicability of the rule; (2) review in a contested adjudicated case would not provide an adequate remedy; and (3) application of the rule would inflict irreparable injury. Thus, if a regulated party can attack a rule in connection with an enforcement, license revocation, restriction, denial, or other contested adjudicative action, and receive a remedy of reversal based on the invalid rule, he has no standing under La. R.S. 49:963(D). In other words, if relief is available to a plaintiff under La. R.S. 49:964, he cannot use the declaratory judgment provisions under La. R.S. 49:963(D). Liberty Mutual , 96-0793 at pp. 9-10 & FN 6, 696 So.2d at 1027-28.

Although La. R.S. 49:963(D) requires a plaintiff to request agency review of the validity or applicability of a rule prior to seeking declaratory judgment, where the allegations of invalidity or inapplicability of the rule are based on constitutional grounds, agency review is not a prerequisite to filing a declaratory judgment action in district court, since an administrative agency lacks jurisdiction to rule on the constitutionality of its own rules. Louisiana Chemical Association , 577 So.2d at 234. Thus, Mid-City was not required to seek administrative review of its allegations regarding the invalidity of the Schedule of Fines in 1907(A)(4) prior to filing this suit, since the basis for the assertion of invalidity is that the rule is unconstitutional due to an improper delegation of legislative authority. Likewise, Mid-City was not required to seek prior administrative review of its allegation that the license suspension and revocation provisions in 1907(A)(5) and (6) are invalid because they are unconstitutionally vague and ambiguous. However, Mid-City's assertion that LAC 55:I.1907(A)(5) and (6) are invalid because they exceed the statutory authority of the agency is not excepted from the administrative review provisions of La. R.S. 49:963(D), and Mid-City was required to provide proof that it satisfied the requirements of La. R.S. 49:963(D) before petitioning the district court for declaratory relief.

Mid-City alleges that it filed an administrative appeal of the fines and suspension of its storage inspection license and raised, briefed, and argued its challenges to the rule and its enabling statute before the administrative law judge, but no ruling was made in that proceeding concerning the constitutional challenge because the administrative law judge lacked jurisdiction to decide the constitutional issues. The Office of State Police denies that the provisions of the rule relating to administrative fines were even at issue in the proceeding before the administrative law judge, as that proceeding was strictly an administrative appeal of the suspension following the third violation, and no fines had been assessed for Mid-City's third violation. Despite Mid-City's assertion that it sought the review required under La. R.S. 49:963(D) prior to seeking declaratory judgment in district court, that administrative record was not made a part of the record herein, and we are unable to verify whether the requirements of La. R.S. 49:963(D) were satisfied. Accordingly, we must remand in order for the district court to determine whether Mid-City satisfied the requirements of La. R.S. 49:963(D). See Louisiana Chemical Association , 577 So.2d at 233. Thus, the portion of the judgment in this matter upholding the validity of the license suspension and revocation provisions, LAC 55:I.1907(A)(5) and (6), is vacated, and this matter is remanded to the district court for a determination of whether Mid-City satisfied the requirements of La. R.S. 49:963(D). Because the constitutional grounds for invalidity under La. R.S. 49:963 did not have to be submitted to agency review as a prerequisite to a petition for declaratory judgment, it was properly considered by the district court and we will consider those issues on appeal.

Although the district court in a declaratory judgment proceeding under La. R.S. 49:963 is limited to review of the administrative record when the issue is whether the rule is invalid or inapplicable because it exceeds statutory authority or was adopted without substantial compliance with rule making procedures, when the issue is the constitutionality of the rule, the scope of review is somewhat more complicated, since agency review is not a prerequisite to seeking declaratory judgment in district court. Louisiana Chemical Association, 577 So.2d at 233-34. This court has previously addressed the scope of review where the ground for invalidity raised under La. R.S. 49:963 is the unconstitutionality of the rule:

The question remains as to the method or standard of review by the district court in a suit for declaratory judgment. In most instances the record of the promulgation of the rule should be sufficient for the district court to make a determination of constitutionality since the constitutionality of the rule on its face will normally be the issue. If the constitutionality of the rule as applied is the issue this will, in most instances, arise from an adjudication and the record of that adjudicatory hearing will furnish the reviewing court with a sufficient record to make a determination of constitutionality. In those limited instances where the district court needs additional evidence there is no reason why the matter could not be remanded to the agency to specifically supplement the record by receiving the needed evidence without making any findings with reference to that evidence.
Consequently, we hold that the district court is limited to a review of the record in determining issues presented under La. R.S. 49:963.
Limiting the district court to a review of the record is not contrary to La. Const. Art. V, § 16 vesting the district courts with original jurisdiction. District courts may exercise original jurisdiction by reviewing an administrative record.

Louisiana Chemical Association , 577 So.2d at 234. (Citations omitted). Although review is limited to the administrative record, La. R.S. 49:963(B) provides that the district court may allow additional evidence to be presented under certain circumstances:

(1) If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court.
(2) The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.

In the instant matter, the district court conducted a bench trial at which testimony and evidence were presented. Although counsel for Mid-City stated at the start of the trial that it would like to "offer and introduce the entire record that we have," the record of the administrative proceedings, which is presumably what counsel was referring to, is not included in the record on appeal. On remand, if the district court determines that Mid-City satisfied the prerequisites of La. R.S. 49:963 in order to have the court consider its allegations that LAC 55:I.1907(A)(5) and (6) exceed the statutory authority of the agency, the district court is instructed to limit its review to the agency record, unless it determines that the taking of additional evidence is appropriate under La. R.S. 49:963(B). Nevertheless, because the administrative law judge did not have authority to consider the constitutionality of the rule, and because Mid-City's assertion is that the Schedule of Fines is unconstitutional on its face, the administrative record is unnecessary to our review of that issue.

Determining whether a statute is constitutional is a legal question and thus reviewed de novo. Krielow v. Louisiana Dep't of Agric. & Forestry , 13-1106, p. 4 (La. 10/15/13), 125 So.3d 384, 387. In determining the constitutionality of a statute, we begin with the premise that statutes are generally presumed to be constitutional, and therefore, the party challenging the statute bears the burden of proving its unconstitutionality. Importantly, the provisions of the Louisiana Constitution are not grants of power, but instead are limitations on the otherwise plenary power of the people exercised through the legislature. Krielow , 13-1106 at pp. 4-5, 125 So.3d at 388. The legislature may enact any legislation that the state constitution does not prohibit; thus, a party seeking the declaration of unconstitutionality of a statute must point to or rely on a particular constitutional provision which would prohibit the legislature from enacting such a statute. Bd. of Comm'rs of N. Lafourche Conservation, Levee & Drainage Dist. v. Bd. of Comm'rs of Atchafalaya Basin Levee Dist. , 95-1353, p. 4 (La. 1/16/96), 666 So.2d 636, 639.

The Louisiana Constitution divides the powers of government into three separate branches: legislative, executive and judicial, and further provides that no branch may exercise power belonging to another. La. Const. Art. II, §§ 1, 2. The legislative power of the State rests exclusively in the Legislature. La. Const. Art. III, § 1. Thus, it is axiomatic that the Legislature is vested with the sole law-making power of the State. Krielow, 13-1106 at p. 5, 125 So.3d at 388.

Because of the constitutional separation of powers, delegation of legislative power, either to the people or to any other body of authority, is generally prohibited. Krielow, 13-1106 at p. 5, 125 So.3d at 388 ; State v. Miller, 03-0206, p. 4 (La. 10/21/03), 857 So.2d 423, 427. However, as an exception to this rule, the Louisiana Supreme Court has recognized that the legislative branch has the authority to delegate to administrative boards and agencies of the State the power to ascertain and determine the facts upon which the laws are to be applied and enforced. Such a delegation of administrative functions is necessary because of the vast amount of governmental functions that are vested in the legislative branch, which cannot possibly enact and re-enact detailed laws to cover every situation during rapidly changing times. Krielow, 13-1106 at pp. 5-6, 125 So.3d at 388-89. By establishing primary standards and then delegating to an agency the task of adjusting these standards to current conditions, the legislative body has necessary flexibility in the face of changing circumstances. Moreover, the legislature may wish to utilize the particular skills and experience of the various administrative agencies. State v. Alfonso , 99-1546, pp. 6-7 (La. 11/23/99), 753 So.2d 156, 160-61, as amended on reh'g in part (Dec. 7, 1999).

To determine whether a particular delegation of authority by the legislature is unconstitutional, we rely on the rule established by our supreme court in Schwegmann Bros. Giant Super Markets v. McCrory , 237 La. 768, 787-88, 112 So.2d 606, 613 (La. 1959) :

It is now well settled that the Legislature may make the operation or application of a statute contingent upon the existence of certain conditions, and may delegate to some executive or administrative board the power to determine the existence of such facts and to carry out the terms of the statute. So long as the regulation or action of the official or board authorized by statute does not in effect determine what the law shall be, or involve the exercise of primary and independent discretion, but only determines within prescribed limits some fact upon which the law by its own terms operates, such regulation is administrative and not legislative in its nature. (Footnotes omitted).

Guided by these principles set forth in Schwegmann and inherent in the constitutional separation of powers, the supreme court fashioned a three-prong test for determining, on a case-by-case basis, whether a statute unconstitutionally delegates legislative authority, as opposed to administrative or ministerial authority, to an administrative agency. Under this test, a delegation of authority to an administrative agency is constitutionally valid if the enabling statute (1) contains a clear expression of legislative policy; (2) prescribes sufficient standards to guide the agency in the execution of that policy; and (3) is accompanied by adequate procedural safeguards to protect against abuse of discretion by the agency. Alfonso , 99-1546 at pp. 7-8, 753 So.2d at 161.

Application of the Schwegmann three-prong test ensures the elected members of the Legislature retain all legislative power by insisting that they, and not their delegates in the executive branch, make the difficult policy choices for which they are accountable to the public through the democratic process. State v. All Pro Paint and Body Shop, Inc. , 93-1316, p. 7 (La. 7/5/94), 639 So.2d 707, 712. Furthermore, by insisting that the enabling legislation prescribe not only the legislative policy to be enforced by the agency, but also sufficient standards to guide the agency's execution of the legislative will, the Schwegmann test ensures that the statute delegates only administrative or ministerial authority and guards against delegations of unbridled legislative discretion. Additionally, because even delegations of administrative or ministerial authority require agencies to exercise some discretion in executing the legislative will, the requirement of adequate procedural safeguards ensures the agency exercises that discretion in accordance with the policy and standards prescribed in the enabling statute and consistent with democratic values served by public participation and judicial review. All Pro Paint , 93-1316 at p. 8, 639 So.2d at 712-13.

In the present case, Mid-City alleges that the legislature's delegation of authority to the Office of State Police to adopt and levy fines is an unconstitutional delegation of legislative, rather than merely administrative or ministerial, authority. Applying the Schwegmann test, we must first determine whether the Act contains a clear expression of legislative policy. Once the legislature has defined its policy, the State, acting under its police power to protect the health, welfare, and safety of the people, may confer upon administrative officers or bodies the power to adopt the rules and regulations to effectuate the legislative will. Thus, the requirement of a clear expression of legislative policy ensures the regulatory scheme constitutes a valid exercise of the State's police power to protect the health, welfare, and safety of the people, thereby permitting an administrative agency to make rules and regulations necessary for the administration and enforcement of that policy. All Pro Paint , 93-1316 at p. 12, 639 So.2d at 715.

The Act declares its policy as follows in La. R.S. 32:1711 :

The legislature finds and declares that the towing and storage of motor vehicles in the state of Louisiana vitally affects the general economy of the state, the public interest, and the public welfare, and that in order to promote the public interest and the public welfare, and in the exercise of its police power, it is necessary to regulate and to license those who conduct towing and storage businesses in Louisiana, in order to prevent frauds, impositions, and other abuses upon its citizens, and to provide maximum safety for all persons who travel or otherwise use the public highways of this state.

We find this expression of legislative policy to be clear and adequate to support a delegation of authority to the Office of State Police to promulgate rules and regulations necessary for the administration and enforcement of that policy.

Our next inquiry under the Schwegmann test is whether the Act prescribes sufficient standards to guide the Office of State Police in the execution of the Act's declared policy. The standards which must accompany delegations of authority must not be unlimited, unreasonable, or permit arbitrary action by the administrative body. When delegated authority is unfettered, its exercise becomes legislative, not administrative, in nature, and contravenes the mandates of Article II, § 2 of the Louisiana Constitution that no branch of government shall exercise power belonging to another branch. All Pro Paint , 93-1316 at pp. 6, 13-14, 639 So.2d at 711, 716-17. However, to be sufficient, the standards need not be express if they may be reasonably inferred from the statutory scheme. Opiate Replacement Therapy Centers of America, Inc. v. State ex rel. Department of Health and Hospitals , 03-0643, p. 5 (La.App. 1 Cir. 2/23/04), 868 So.2d 216, 220.

The Act contains no standards to guide the Office of State Police in setting the amount of administrative fines. The Office of State Police argues that it relied on La. R.S. 32:1725, which set the maximum criminal fine for a violation of the Act at $500.00, as guidance from the legislature as to the maximum administrative fine which should be imposed. However, the Act provided for the imposition of both criminal and administrative fines for violations, and La. R.S. 32:1724, which provides for the assessment of an administrative fine for a violation, does not impose any limits on the amount of the administrative fine that may be assessed. Thus, we do not agree that sufficient standards to guide the Office of State Police may be reasonably inferred from § 1725. Because the legislature provided no guidance or limits on the amount of fines which could be set, the delegation of legislative authority fails to satisfy the second prong of the Schwegmann test. This unfettered discretion makes the exercise of the delegated authority by the Office of State Police legislative, rather than administrative, in nature; therefore, the Schedule of Fines contained in LAC 55:I.1907(A)(4) is not constitutionally valid.

Because we find that the Schedule of Fines in LAC 55:I.1907(A)(4) is invalid because it violates constitutional provisions, Mid-City is entitled to an injunction against further enforcement of the fines. See Star Enterprise v. State Through Department of Revenue and Taxation, 95-1980, p. 13 (La.App. 1 Cir. 6/28/96), 676 So.2d 827, 834.

Mid-City also alleges that the license suspension and revocation provisions in LAC 55:I.1907(A)(5) and (6) are invalid because they are unconstitutionally vague and ambiguous. However, since we have vacated the portion of the district court judgment upholding the validity of LAC 55:I.1907(A)(5) and (6) and remanded this matter to the district court so that it can make a determination of whether Mid-City satisfied the prerequisites of La. R.S. 49:963(D) with regard to its assertion that LAC 55:I.1907(A)(5) and (6) exceed the statutory authority of the agency, we will not consider the constitutionality of those provisions of the rule at this time. Constitutional issues should not be used to resolve disputes when they are resolvable by resolution of other issues. Liberty Mutual, 96-0793 at p. 1, 696 So.2d 1021, 1031 (on rehearing). Bueto v. Video Gaming Division, Office of State Police, Department of Public Safety, 94-0334 (La.App. 1 Cir. 3/4/94), 637 So.2d 544, 547.

CONCLUSION

For the reasons set forth herein, the district court judgment is reversed insofar as it upheld the validity of the Schedule of Fines set forth in LAC 55:I.1907(A)(4). Declaratory judgment is hereby rendered in favor of plaintiff, Mid-City Automotive, LLC, declaring that this provision is invalid due to an unconstitutional delegation of legislative authority to the Office of State Police, and an injunction is granted against further enforcement of fines under LAC 55:I.1907(A)(4). The district court judgment is vacated insofar as it held that the storage license suspension and revocation provisions of LAC 55:I.1907(A)(5) and (6) do not exceed the scope of the statutory authority of the agency, and this matter is remanded to the district court for further proceedings as set forth herein. Costs of this appeal in the amount of $841.00 are assessed to the State of Louisiana, Department of Public Safety and Corrections, Office of State Police.

REVERSED IN PART AND RENDERED; VACATED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.

Chutz, J. concurs for reasons assigned by J. Welch.

Welch J. concurs and assigns reasons.

WELCH, J., concurs.

I agree with majority opinion insofar as it determines that the Schedule of Fines in LAC 55:I.1907(A)(4) is invalid because it violates constitutional provisions, and accordingly, reverses that portion of the judgment of the district court and renders judgment granting Mid-City an injunction against further enforcement of the fines. With respect to the validity of the license suspension and revocation provisions set forth in LAC 55:I.1907(A)(5) and (6), in my opinion, since the Office of State Police is authorized to issue licenses for nonconsensual tows of vehicles from private property, then they are authorized to suspend or revoke those licenses for violations of established rules and regulations. Thus, the revocation or suspension of any license is within the legislative mandate and constitutional. However, since the record in the administrative appeal is not in the record before us, we are unable to determine whether the suspension by the Office of State Police was appropriate, i.e. , whether it was for the failure to pay the administrative fine or whether it was for Mid-City's third violation. Therefore, I agree that this matter must be remanded for the district court for such determination.

Thus, I respectfully concur.

      Possession of a valid storage inspection license is required for a towing company that conducts nonconsensual tows. See LAC 55:I.1930(B) and La. R.S. 32:1717.1.

      Section 1907(A)(4) provides that the Office of State Police shall set a fine for a violation of § 1930 within the range of $200-$500.

      Section 1907(A)(5) provides for suspensions of at least thirty days on a third or subsequent violation within a twelve-month period.

      The administrative proceeding by which Mid-City's suspension was upheld is not part of the record on appeal in this matter.

      La. R.S. 49:950 et seq.

      See LAC 55:I.1901(A).

      Under La. R.S. 32:1736(C), tow truck company owners and drivers must ensure, prior to conducting a nonconsensual tow, that the property, parking areas, and spaces are clearly marked as required by the statute to warn motorists that unauthorized vehicles may be towed. Mid-City was cited for towing vehicles from parking areas which were not properly marked.

      Under the Act, administrative penalties for violations include forfeiture of all claims for towing services and storage of such vehicles, as well as assessment of an administrative fine by the deputy secretary of the Department of Public Safety and Corrections. La. R.S. 32:1724.

      A violation of the Act is punishable by a fine of not more than $500.00 or imprisonment for not more than six months, or both. La. R.S. 32:1725. Additionally, a tow truck operator who tows a vehicle in violation La. R.S. 32:1736 shall also be in violation of La. R.S. 14:68.4, the criminal prohibition against unauthorized use of a motor vehicle, and subject to any applicable penalty provided by law, including but not limited to revocation of the towing license. La. R.S. 32:1736(E). See also La. R.S. 32:1717 (A tow truck owner who has been convicted of a felony relating to vehicle theft does not qualify for a towing license.).

      Louisiana Revised Statutes 49:964 provides for judicial review of an adjudication proceeding.

      Since we have determined that the Schedule of Fines set forth in § 1907(A)(4) is not constitutionally valid, we need not address the third prong of the Schwegmann test.


author: CHEHARDY, C.J.

text:
    Avery PARDEE v. Paul CONNICK, in His Official Capacity as District Attorney for the Parish of Jefferson
    NO. 18-CA-718
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, AVERY PARDEE, Avery B. Pardee, P.J. Kee, Graham H. Ryan, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, PAUL CONNICK, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY, FOR THE PARISH OF JEFFERSON, Richard C. Stanley, Benjamin P. Kahn, Matthew J. Paul, New Orleans
    Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.
   CHEHARDY, C.J.

This case arises in the context of a public records request. At issue is whether the Jefferson Parish District Attorney's internal memoranda are presently subject to disclosure under the Louisiana Public Records Act. Concluding that the memoranda are records pertaining to a matter reasonably anticipated to lead to further criminal litigation, we affirm the trial court's finding that the memoranda are exempt from disclosure pursuant to La. R.S. 44:3 (A)(1).

FACTUAL AND PROCEDURAL HISTORY

On November 16, 2000, Frank Kang was found guilty by a twelve-person jury of second degree murder. This Court affirmed Kang's conviction and the Louisiana Supreme Court denied certiorari. See State v. Kang , 01-1262 (La. App. 5 Cir. 2/23/04), 866 So.2d 408, writ denied , 04-944 (La. 11/24/04), 888 So.2d 226. Almost sixteen years later, Kang petitioned the Jefferson Parish District Attorney ("JPDA") to support his request to vacate his second degree murder conviction and life sentence in exchange for his plea of guilty to manslaughter. At the time, Kang's federal habeas proceeding was stayed and, on May 3, 2016, Kang filed his second application for post-conviction relief asserting his claim of "actual innocence." Kang specifically contends that, although he confessed before and during trial to being the shooter, he did not, in fact, shoot the victim in this incident.

In order to prepare its response to Kang's request, JPDA opened an investigation into Kang's request. Specifically, the Chief Investigator for the JPDA, Vince Lamia, interviewed a number of witnesses while investigating Kang's claim of actual innocence. After obtaining statements from several witnesses, Lamia wrote internal memoranda to his superiors, including the First Assistant District Attorney Steve Wimberley, to facilitate the JPDA's response to Kang's request.

On March 12, 2018, Ms. Pardee, counsel for Frank Kang, sent a letter to the Jefferson Parish District Attorney's office seeking "production of the following public records related to State v. Kang , No. 00-1409:"

(1) Any and all transcripts, notes, recordings, or other documentation or tangible things reflecting the statements of Lucy Kim to the Jefferson Parish District Attorney's Office and its investigator(s) and attorney(s) made on or after January 1, 2016;
(2) Any and all transcripts, notes, recordings, or other documentation or tangible things reflecting the statements of Chui-Min "Charlie" Kang to the Jefferson Parish District Attorney's Office and its investigator(s) and attorney(s) made on or after January 1, 2016;
(3) Any and all transcripts, notes, recordings, or other documentation or tangible things reflecting the statements of Davidson Ehle to the Jefferson Parish District Attorney's Office and its investigator(s) and attorney(s) concerning Frank Kang made on or after January 1, 2016;
(4) Any and all transcripts, notes, recordings, or other documentation or tangible things reflecting the statements of Richard Pickins to the Jefferson Parish District Attorney's Office and its investigator(s) and attorney(s) concerning Frank Kang made on or after January 1, 2016;
(5) Any and all investigative memoranda authored by Investigator Vince Lamia regarding Frank Kang and/or the investigation of Frank Kang's case.

On April 26, 2018, the JPDA produced the requested statements but, on the basis of privilege, declined to produce the Chief Investigator's internal memoranda as they were created "for the purposes of and in context of the outstanding post-conviction proceedings."

On August 1, 2018, Ms. Pardee, pursuant to La. R.S. 44:35, filed a petition for writ of mandamus in the Twenty-Fourth Judicial District Court requesting the trial court to compel the JPDA to disclose its Chief Investigator's memoranda. On October 25, 2018, the court heard the matter and refused to issue a writ of mandamus. In its ruling, the trial court noted that the Chief Investigator's memoranda were privileged because the memoranda in question were written in response to "an open criminal investigation [in] ongoing litigation." Ms. Pardee now appeals that ruling.

DISCUSSION

The public's right of access to public records is a fundamental right guaranteed by the Louisiana Constitution. La. Const. Ann. art. XII, § 3. That right of access must be liberally construed in favor of free and unrestricted access, which can only be denied when a law specifically and unequivocally provides otherwise. Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La. 1984).

The Louisiana Legislature has provided for the examination of public documents in the Louisiana Public Records Law, La. R.S. 44:1 et seq. Further, there is a specific statutory exemption for records pertaining to pending criminal litigation. See La. R.S. 44:3(A)(1). This exemption is temporary, denying access only until pending or reasonably anticipated criminal litigation has been finally adjudicated or otherwise settled. Landis v. Moreau, 00-1157 (La. 2/21/01), 779 So.2d 691, 695. Nevertheless, the exemption applies to prevent the required public disclosure of investigative records as long as criminal litigation is pending or reasonably anticipated until that litigation has been finally adjudicated or otherwise settled. In re Matter Under Investigation , 07-1853 (La. 7/1/09), 15 So.3d 972, 990.

The burden of proving that the file is not subject to inspection, copying, or reproduction by a member of the public rests with the custodian. La. R.S. 44:31(3). Whenever there is any doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right to access. Landis v. Moreau, 779 So.2d at 694. Whether such a record is subject to disclosure must be determined at an adversary hearing on a case-by-case basis. Cormier v. Public Records Request of Di Giulio, 553 So.2d 806 (La. 1989).

After the adversarial hearing on Ms. Pardee's petition, the trial court found that there is potentially further criminal litigation, which protects the JPDA's investigative file from disclosure at this juncture. Although Ms. Pardee vociferously argues that Mr. Kang's conviction is final and, thus, all records must be disclosed, we find that Mr. Kang's request to vacate his conviction and sentence and allow him to plead guilty to a lesser offense may result in further criminal litigation, i.e., his criminal case could potentially be re-opened. Further, as noted by the trial court, the requested records were created solely to investigate Kang's actual innocence, which may result in the re-opening of the case against him.

Our reading of the plain language of the statute confirms the trial court's holding that nothing in the Public Records Act shall require disclosure of records held by the "offices of ... district attorneys" when the records pertain to pending or reasonably anticipated criminal litigation until the criminal litigation has been finally adjudicated or otherwise settled. See La. R.S. 44:3(A)(1) ; Investigation, 15 So.3d at 991. We do not consider the JPDA's production of witness statements taken by the investigator to constitute a waiver of the JPDA's right to invoke the exception with respect to the investigator's memoranda. Because the records at issue pertain to a matter reasonably anticipated to lead to further criminal litigation, the investigator's memoranda are covered by the La. R.S. 44:3(A)(1) exemption, and the trial court did not err in finding that, at this time, disclosure is not required under the Public Records Act. Investigation, 15 So.3d at 991. Accordingly, the trial court's refusal to issue a writ of mandamus is affirmed.

AFFIRMED.

      On March 7, 2016, the federal magistrate stayed Kang's habeas proceeding, finding:
      Under the compelling circumstances of this case, and because of the substantial likelihood that this court will at some point be considering the merits of Kang's claims and arguments once further proceedings in the state courts are exhausted, this matter will be stayed to allow Kang to complete exhaustion in the state courts.
      Kang v. Cain , 15-2318 (E.D. La. 3/7/16), 2016 WL 866728 at *2.

      An attorney, representing an incarcerated felon, is not subject to the provisions of La. R.S. 44:31.1, when making a public records request to obtain information relative to a potential post-conviction relief application. Boren v. Taylor , 16-2078 (La. 6/29/17), 223 So.3d 1130.

      Kang's second application for post-conviction relief is pending. On January 9, 2019, this Court remanded Kang's second application for post-conviction relief to the district court "to address whether relator has presented newly discovered exculpatory evidence that meets the exception of the time bar under La. C.Cr.P. art. 930.8... and if so, to consider the merits of relator's discovery motions and his second APCR, and if necessary to conduct an evidentiary hearing." State v. Kang , 18-155 (La. App. 1/9/19), 2019 WL 150635, --- So.3d ----.

      Pursuant to La. R.S. 44:35(C), this matter was placed on this Court's preferential docket and heard without delay. Further, this decision was rendered as soon as practicable.