text:
    STATE EX REL. Dwight BELL v. STATE of Louisiana
    No. 2017-KH-1819
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Shuneal O. MATHIS v. STATE of Louisiana
    No. 2017-KH-1815
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE FIFTH JUDICIAL DISTRICT COURT, PARISH OF FRANKLIN
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. John DIGIROLAMO
    No. 2018-KP-1255
    Supreme Court of Louisiana.
    December 17, 2018
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Randy E. PRESENTINE
    No. 18-KP-0844
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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


text:
    STATE EX REL. Jermaine RUMLEY v. STATE of Louisiana
    No. 2017-KH-1959
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


text:
    STATE EX REL. Tolbert MORRIS v. STATE of Louisiana
    No. 2017-KH-1852
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Shannon ALEXANDER
    No. 2018-KH-0267
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

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

Hughes, J., would grant the writ.


author: GUIDRY, J. recused.

text:
    STATE of Louisiana v. Dale BROWN
    NO. 2018-KH-1508
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).
   GUIDRY, J. recused.


text:
    STATE of Louisiana v. Kyron HUNTER
    NO. 2018-KH-1633
    Supreme Court of Louisiana.
    December 17, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Philmer JOHNSON, Jr., et al. v. CITY OF WESTLAKE
    NO. 2018-CC-1682
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Philmer JOHNSON, Jr., et al. v. CITY OF WESTLAKE
    NO. 2018-CC-1683
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Clifford DERUISE
    NO. 2018-KH-1717
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Kenny GUICE, Anthony Fernandez, Chad Morgan, Kevin Morgan, Larry James Hebert, Wayne Tureai, and Stacy Tureau Creasy Wife of/and Terry Creasy v. VULCAN CHEMICALS, a Business Group of Vulcan Materials Company, Vulcan Chemicals Investments, L.L.C., and Vulcan Chlorakali, L.L.C., Industrial Coatings Contractors, Inc., and International Maintenance Corporation
    NO. 2018-C-0821
    Supreme Court of Louisiana.
    December 17, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


author: GUIDRY, J., recused.

text:
    Kashanni JOHNSON, et al. v. FOREMOST INSURANCE COMPANY, et al.
    NO. 2018-CC-1642
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.
   GUIDRY, J., recused.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Demarcus KIMBLE
    NO. 2018-KH-1678
    Supreme Court of Louisiana.
    December 17, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Jorge LOPEZ BENAVIDES
    NO. 2018-KK-1665
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Lester ANTOINE, et al. v. NORFOLK-SOUTHERN RAILWAY, CO., et al.
    NO. 2018-CC-1691
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


author: WEIMER, J., would grant.

text:
    STATE IN the INTEREST OF D.J.S.
    NO. 2018-CK-1753
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.
   WEIMER, J., would grant.


text:
    Dax O. STRATTMAN v. STATE of Louisiana; John Bel Edwards, Governor; Jeffery M. Landry, Attorney General; Paul D. Connick, District Attorney; et al.
    NO. 2017-OK-2039
    Supreme Court of Louisiana.
    December 17, 2018
    Rehearing denied.


text:
    STATE of Louisiana v. Derrick A. DOTSON
    NO. 2018-KO-0177
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Carlos CESPEDES
    NO. 2018-KO-0263
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. John H. LUTTRULL
    NO. 2018-KH-1715
    Supreme Court of Louisiana.
    December 17, 2018
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Wesley RICKS
    NO. 2018-KH-1027
    Supreme Court of Louisiana.
    December 17, 2018
    Reconsideration denied.


text:
    STATE of Louisiana v. Javone MARTIN
    NO. 2018-KH-1362
    Supreme Court of Louisiana.
    December 17, 2018
    Reconsideration denied.


text:
    STATE of Louisiana v. Jesus E. CONTRERAS
    NO. 2018-KO-1172
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    COMMAND CONSTRUCTION INDUSTRIES, L.L.C. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Sherri Lebas, in Her Official Capacity as Secretary of Louisiana Department of Transportation and Development
    Design Precast and Pipe, Inc. v. Command Construction Industries, the Ohio Casualty Insurance Company, and the State of Louisiana Through the Department of Transportation and Development
    Command Construction Industries, L.L.C v. John E. Bonneau & Associates, Inc.
    NO. 2018-CC-1636
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


author: WEIMER, J., recused.

text:
    Richard PERNICIARO & Robert Cleveland, Individually and on Behalf of ParaTech, LLC v. Guy MCINNIS, Ray Lauga, Jr., Casey W. Hunnicutt, Richard Lewis & St. Bernard Parish Government, et al.
    NO. 2018-C-1659
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.
   WEIMER, J., recused.

HUGHES, J., would grant in part.


text:
    STATE EX REL. Spencer GILMORE v. STATE of Louisiana
    NO. 2018-KH-0031
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Kenneth BERTHELOT v. Russell INDOVINA, Progressive Security Insurance Company, and Pro-Mag Inspections, L.L.C.
    NO. 2018-CC-1608
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Ricky J. GROS
    NO. 2018-KO-0473
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Tyrone WASHINGTON
    NO. 2018-KO-0783
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company
    NO. 2018-CC-1430
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Leotis JOHNSON v. SEWERAGE & WATER BOARD
    NO. 2018-C-1612
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    UPSCALE FASHIONS, INC. D/B/A Upscale Men's Clothing v. UNDERWRITERS AT LLOYD'S LONDON, et al.
    NO. 2018-C-1621
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Vincent J. BRUNO v. Kenneth KNIGHT and 3rd Rock Solar Systems, LLC
    NO. 2018-CC-1833
    Supreme Court of Louisiana.
    December 17, 2018
    Stay denied. Writ denied.


text:
    STATE EX REL. Shannon ALEXANDER v. STATE of Louisiana
    NO. 2017-KH-1642
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Bryan Arnold RICHMAN, Jr. v. The TRAVELERS INDEMNITY COMPANY, et al.
    NO. 2018-CC-1599
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Preston G. DEMOUCHETTE, Jr.
    NO. 2018-KH-1640
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Patrick SIMMONS, Sr., et al. v. The STATE of Louisiana, et al.
    NO. 2018-C-1613
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Gregory CORMIER v. CITY OF LAFAYETTE, et al.
    NO. 2018-C-1616
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Angela ROGERS and Edgar Rogers v. CADDO PARISH SCHOOL BOARD
    NO. 2018-CC-1607
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Richard Nathaniel MILLER
    NO. 2018-KH-1638
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Billy R. LEWIS
    NO. 2017-K-0340
    Supreme Court of Louisiana.
    December 17, 2018
    Not considered. See La.S.Ct.R IX § 6.
   HUGHES, J., would grant.


text:
    STATE EX REL. Charles SPEARS v. STATE of Louisiana
    2017-KH-0854
    Supreme Court of Louisiana.
    December 17, 2018
    Reconsideration denied.


author: HIGGINBOTHAM, J.

text:
    Michael LEDET v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2017 CA 1457
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Robert N. Aguiluz, Baton Rouge, LA, Jude C. Bursavich, Baton Rouge, LA, Attorneys for Plaintiff-Appellant, Michael Ledet
    Adrienne E. Aucoin, Baton Rouge, LA, Attorney for Defendant-Appellee, State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

Michael Ledet appeals his classification as a Tier II sex offender based on his 2005 federal conviction and incarceration for possession of materials involving the sexual exploitation of minors, in violation of 18 USCA 2252. The district court upheld an administrative law judge's (ALJ) determination that the State of Louisiana, through the Department of Public Safety and Corrections, Public Services, Office of State Police, Bureau of Criminal Identification and Information ("the Bureau"), properly classified Mr. Ledet in 2014 pursuant to the most comparable state statute, La. R.S. 14:81.1, concerning possession of pornography involving juveniles. Consequently, Mr. Ledet is currently required to register in Louisiana as a sex offender for a period of 25 years from the date of his initial registration, as well as perform in-person renewals every six months, all in accordance with La. R.S. 15:540, et seq.

BACKGROUND

On March 23, 2005, Mr. Ledet was charged by a federal bill of information with one count of possession of child pornography. He pled guilty to the charge and was sentenced on July 28, 2005, to serve two years in federal prison. Upon his supervised release from prison, Mr. Ledet resided in Mandeville, Louisiana. As a required condition of his supervised release, Mr. Ledet initially registered as a sex offender on June 12, 2007, with the Sheriff's Office for St. Tammany Parish. He was informed at that time that he must renew his registration annually for ten years from the date of his initial registration. The Sheriff's Office forwarded Mr. Ledet's registration to the Bureau. For the next seven years, Mr. Ledet annually updated his registration as required.

On August 7, 2014, the Bureau sent written notification to Mr. Ledet that his period of registration and frequency of his in-person periodic renewals had been reviewed and it was determined, by comparing the elements of the most comparable Louisiana statute (pornography involving juveniles) with the criminal elements of the federal statute (sexual exploitation of minors), that Mr. Ledet should be classified as a Tier II offender. A Tier II classification involves offenses defined in La. R.S. 15:541(25) as "Sexual offense[s] against a victim who is a minor" and require a 25-year registration period, as well as an in-person registration renewal every six months from the date of the initial registration. See La. R.S. 15:544 and La. R.S. 15:542.1.1 (A)(2). Additionally, Mr. Ledet was informed of his right to appeal the Tier II classification by submitting a written request for an administrative hearing as provided in the Louisiana Administrative Procedure Act ("the APA"), La. R.S. 49:950, et seq. , within one year from the date that the Bureau posted its determination on the Sex Offender and Child Predator Registry ("the Registry"). The Bureau's determination was posted on the Registry on August 7, 2014.

Almost a full year later, Mr. Ledet submitted a formal appeal of the Bureau's Tier II determination and requested an administrative hearing by letter dated August 4, 2015. On October 14, 2015, a hearing was held on the merits of Mr. Ledet's Tier II classification and, after argument, witness testimony, admission of evidence, and the submission of post-hearing briefs, a Decision and Order was rendered and signed by an ALJ on December 3, 2015. In detailed written reasons, the ALJ affirmed the Bureau's determination. After the ALJ denied Mr. Ledet's request for reconsideration, Mr. Ledet filed a petition for judicial review of the ALJ's decision in the Nineteenth Judicial District Court on February 11, 2016. The district court reviewed the administrative record and the parties' memoranda, as well as heard oral arguments on May 23, 2017. On March 28, 2018, the district court signed an amended judgment denying Mr. Ledet's petition and rendering judgment in favor of the Bureau, thereby affirming the ALJ decision and finding that the ALJ's decision was not arbitrary and capricious. Mr. Ledet now appeals to this court for review of the district court and the ALJ's decisions.

STANDARD OF REVIEW

A district court's judicial review of a final administrative decision is governed by the APA and its standard of review as set forth in La. R.S. 49:964(G) :

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.

When reviewing a final administrative decision, the district court functions as an appellate court, confining its review to the administrative record. Any one of the six bases listed in the statute is sufficient to modify or reverse the administrative determination. See La. R.S. 49:964(F). See also Nolan v. State , 2013-2140 (La. App. 1st Cir. 6/6/14), 148 So.3d 198, 202, writ denied, 2014-1795 (La. 11/14/14), 152 So.3d 881.

The manifest error test is used in reviewing the facts as found by the ALJ, but the arbitrary and capricious test is used in reviewing the ALJ's conclusions and its exercise of discretion. Nolan, 148 So.3d at 202. On legal issues, the reviewing court gives no special weight to the findings of the ALJ, but conducts a de novo review of questions of law and renders judgment on the record. Id. Once a final judgment is rendered by the district court, an aggrieved party may seek review of that judgment by appeal to the appropriate appellate court. Id.See also La. R.S. 49:965. The appellate court owes no deference to either the factual findings or legal conclusions of the district court when conducting its judicial review over the administrative action. Consequently, this court will conduct its own independent review of the record and apply the standards provided by the APA, La. R.S. 49:964(G). Id.

LAW AND ANALYSIS

Louisiana maintains a comprehensive statutory scheme governing sex offender registry within the state. See La. R.S. 15:540, et seq. Louisiana Revised Statute 15:544(B)(1) is the general provision addressing the duration of an offender's registration requirement when the offender has been convicted of a sexual offense against a victim who is a minor as defined in La. R.S. 15:541, and requires the offender to maintain registration for a period of 25 years from the date of initial registration in Louisiana. Pursuant to La. R.S. 15:541 (25)(d) a "[s]exual offense against a victim who is a minor" includes pornography involving juveniles, a violation of La. R.S. 14:81.1(B)(8), which is defined as "any photograph, videotape, file, or other reproduction, whether electronic or otherwise, of any sexual performance involving a child under the age of seventeen." Further, once a sex offender establishes a residence in Louisiana, La. R.S. 15:542.1.3(A) requires that the offender provide the Bureau certain information pertaining to the offense of conviction. The Bureau then determines the offender's period of registration and the frequency of in-person periodic renewals by analogizing the offender's out-of-state offense of conviction to the "most comparable Louisiana offense." La. R.S. 15:542.1.3(B)(2)(a).

Initially, we reject Mr. Ledet's argument that the ALJ erroneously conducted the administrative hearing as a judicial review. The transcript of the administrative hearing clearly reflects that the ALJ conducted the hearing as a trial on the merits concerning Mr. Ledet's assertions that his Tier II sex-offender classification was improperly determined by the Bureau several years after he had already been classified. Counsel for both Mr. Ledet and the Bureau made opening and closing statements, evidence was presented by both parties and admitted into the record, and witnesses testified on behalf of both parties. The ALJ also allowed both parties to submit post-hearing memoranda before issuing a decision. The record does not reveal any prejudice or error in the administrative hearing proceeding.

Mr. Ledet's main argument on appeal is that the ALJ erroneously concluded that Mr. Ledet was properly classified as a Tier II sex offender. Mr. Ledet maintains that the comparable Louisiana law (pornography involving juveniles) is not equivalent to his conviction for the federal crime of sexual exploitation of minors (by possessing child pornography), because the victim's ages are different in each statute. Under the federal law, a minor is any person under the age of 18 years ( 18 USCA 2256(1) ), whereas under the Louisiana pornography involving juveniles statute, the victim is any person under the age of 17 years ( La. R.S. 14:81.1 (B)(8) ). Mr. Ledet suggests that because the federal bill of information charging him with one count of possession of child pornography does not establish the age of the victim, his guilty plea does not equate to the Louisiana law concerning pornography involving juveniles. However, considering that both the federal law and Louisiana law have a common legislative purpose of protecting against the exploitation of children and the protection of minors from criminal sexual conduct that has been visually depicted, we find no merit to Mr. Ledet's argument that the statutes are not comparable. See La. R.S. 15:540 (general purpose behind registration requirements for sex offenders and child predators). See also State v. Watts, 2009-0912 (La. App. 4th Cir. 6/16/10), 41 So.3d 625, 636, writ denied, 2010-1685 (La. 1/28/11), 56 So.3d 966. Additionally, a clear reading of La. R.S. 15:540(A), La. R.S. 15:541(24)(a), and La. R.S. 15:541 (25)(d) considered together, reflects that the terms "sex offense" and "sex offender" apply to all defendants convicted of one of the enumerated offenses against a victim who is a minor that require registration regardless of the age of the victim. This interpretation is further supported by the jurisprudence. See State v. Mueller, 2010-0710 (La. App. 4th Cir. 12/8/10), 53 So.3d 677, 683. We also note that the Louisiana statute regarding pornography involving juveniles specifically states that "[l]ack of knowledge of the juvenile's age shall not be a defense." La. R.S. 14:81.1 (D)(1).

Mr. Ledet's final argument is that the ALJ erroneously found that no tier classification had ever been made until Mr. Ledet was re-classified by the Bureau in August of 2014. The Louisiana Legislature amended the statutory sex offender Registry scheme to increase the baseline registration periods through 2007 La. Acts, No. 460 § 2, effective January 1, 2008. The Louisiana Supreme Court has held that retroactive application of the new registration periods do not impose punishment and, therefore, do not violate state and federal ex post facto laws. See State v. Billiot, 2012-0174 (La. App. 1st Cir. 9/21/12), 104 So.3d 113, 117 (citing State ex rel. Olivieri v. State, 2000-0172 (La. 2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730, and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001) ). Instead, the registration of sex offenders is merely a civil regulatory framework. Billiot, 104 So.3d at 117. Thus, the period of time a sex offender is obligated to register may be extended during the time of the original registration period. Id. Mr. Ledet's classification that was made by the Bureau in August of 2014 occurred during his original registration period. Accordingly, the ALJ was not arbitrary and capricious in affirming the Bureau's imposition of a Tier II classification for Mr. Ledet in 2014 when the Bureau became aware that Mr. Ledet was improperly classified under current law.

CONCLUSION

After reviewing this matter pursuant to the APA standards, we conclude that the Bureau's determination that Mr. Ledet was a Tier II sex offender residing in Louisiana was not manifestly erroneous nor arbitrary and capricious. Because the comparable sexual offense in Louisiana equated to possession of pornography involving minors, Mr. Ledet is required to register for 25 years pursuant to La. R.S. 15:544(B)(1). Thus, the district court did not err in affirming the ALJ's affirmation of the Bureau's determination. The March 28, 2018 amended judgment of the district court is affirmed. Costs of this appeal are assessed to Michael Ledet.

AFFIRMED.

McClendon, J. concurs.

      Louisiana Revised Statute 15:542.1.3 is entitled, in part: "Procedures for offenders convicted or adjudicated under ... federal law;" and La. R.S. 15:544 is entitled "Duration of registration and notification period." Read together, any Louisiana resident convicted under federal law of a comparable sexual offense in Louisiana against a victim who is a minor shall register for a period of 25 years, as a Tier II sex offender.

      Pursuant to a Rule to Show Cause Order issued by this court on October 19, 2017, the parties filed a joint motion to remand the matter to the district court for the limited purpose of allowing the district court to sign an amended judgment containing appropriate decretal language. After the appellate court record was supplemented with the amended judgment, a different panel of this court voted to maintain Mr. Ledet's appeal while reserving a final determination to this merits panel. We have examined the amended judgment and agree to maintain Mr. Ledet's appeal.


author: MCCLENDON, J.

text:
    TRACER SECURITY SERVICES, INC. and Silver Eagle Security, Inc. v. Linda M. LEDET and John J. Ledet, Jr.
    2018 CA 0269
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Patrick K. Reso, Frank J. Divittorio, Hammond, Louisiana, Counsel for Plaintiffs/Appellants Tracer Security Services, Inc. and Silver Eagle Security, Inc.
    Christopher H. Riviere, Todd M. Magee, Thibodaux, Louisiana, Counsel for Defendants/Appellees John J. Ledet, Jr. and Linda M. Ledet
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   MCCLENDON, J.

Plaintiffs seek review of a judgment that granted defendants' exception raising the objection of no cause of action and dismissed plaintiffs' action against the defendants. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

Tracer Security Services, Inc. and Silver Eagle Security, Inc. filed a suit on open account pursuant to LSA-R.S. 9:2781 seeking to recover alleged payments for security detail provided at Cajun Country Casino in Raceland, Louisiana. In their petition, plaintiffs named Linda M. Ledet and John J. Ledet, Jr. as defendants. Plaintiffs alleged that the Ledets operated the casino under the assumed name of Cajun Country Casino and that the Ledets held a video bingo license issued by the State. Plaintiffs further alleged that Cajun Country Casino was not a corporation, a limited liability company, or any other type of registered entity, but rather was a trade name or assumed name of the Ledets. Plaintiffs attached multiple items to the petition, including a "Service Agreement" between Tracer and Cajun Country Casino, which was signed on behalf of the casino by Pamela McGee as "Casino Manager."

In response to the petition, the Ledets filed an exception raising the objection of no cause of action. The Ledets asserted that they were not parties to the Service Agreement such that the plaintiffs cannot assert contractual causes of action against them.

Following a hearing, the trial court granted the Ledets' exception, reasoning that that there was no privity of contract because the items evidencing the obligations, including the contracts and gaming license, did not specifically reference the individuals John and Linda Ledet. The trial court subsequently signed a judgment on January 12, 2018, granting the exception and dismissing the plaintiffs' action against the Ledets.

The plaintiffs have appealed, assigning seven errors for review. In sum, the plaintiffs maintain that the trial court erred in granting the exception of no cause of action. The plaintiffs also assert that the trial court erred in allowing the Ledets to introduce evidence and by failing to allow the plaintiffs the opportunity to amend their petition.

DISCUSSION

The peremptory exception raising the exception of no cause of action tests the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged. Naquin v. Bollinger Shipyards, Inc., 13-1638 (La.App. 1 Cir. 5/2/14), 147 So.3d 207, 209, writ denied, 14-1091 (La. 9/12/14), 148 So.3d 933. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. Rather, the exception is triable solely on the face of the petition and any attached documents. Paulsell v. State, Dept. of Transp. and Dev., 12-0396 (La.App. 1 Cir. 12/28/12), 112 So.3d 856, 864, writ denied, 13-0274 (La. 3/15/13), 109 So.3d 386. For purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Reynolds v. Bordelon, 14-2362 (La. 6/30/15), 172 So.3d 589, 594-95. Therefore, the court reviews the petition and accepts well-pleaded allegations of fact as true, and the issue is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. CLB61, Inc. v. Home Oil Company, LLC, 17-0557, 17-0558 (La.App. 1 Cir. 11/1/17), 233 So.3d 656, 660. The exception should be granted "only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief." State of Louisiana, by & through Caldwell v. Astra Zeneca AB, 16-1073 (La.App. 1 Cir. 4/11/18), 249 So.3d 38, 42 (en banc), citing Badeaux v. Southwest Computer Bureau, Inc., 05-0612 (La. 3/17/06), 929 So.2d 1211, 1217.

Because the objection of no cause of action raises a question of law and the trial court's decision is based solely on the sufficiency of the petition, review of the trial court's ruling on the exception is de novo. Scheffler v. Adams and Reese, LLP, 06-1774 (La. 2/22/07), 950 So.2d 641, 647.

The Ledets contend that the plaintiffs' Suit on Open Account is entirely contradicted by the Service Agreement attached to it. The Ledets aver that even a cursory review of the Service Agreement reveals that Tracer did not enter into an agreement with the Ledets. Rather, the Ledets note that the agreement was executed by Pamela McGee and neither John Ledet nor Linda Ledet is mentioned therein. The Ledets aver that despite the plaintiffs' pleading, there exists no privity of contract between the Ledets and the plaintiffs.

In support, the Ledets cite Niland's Funeral Service, Inc. v. Stanley, 96-0378 (La.App. 1 Cir. 11/8/96), 684 So.2d 982, wherein this court concluded that a funeral home failed to state a cause of action against a succession's administrator (Mr. Stanley) to enforce a contract entered between the funeral home (Niland's) and a third party (Dr. Monceret). In that case, however, on its face, the petition did not reflect any privity of contract between the parties. As noted therein, "[a] review of the petition indicates that Niland's is suing to enforce the terms and conditions under the contract between Niland's and Dr. Monceret, which permits Niland's to collect interest along with attorney's fees and court costs. Clearly, there is no privity of contract between Niland's and Mr. Stanley, in his capacity as administrator." Id. at 984-85 (footnote omitted).

By contrast, the petition at issue here alleges that the plaintiffs entered into a contract with the Ledets, that Cajun Country Casino was a trade name or assumed name of the Ledets, and that the Ledets were the recipients of the security services provided. For purposes of the exception of no cause of action, those allegations must be accepted as true. The fact that the Ledets, the alleged principals, are not named in the Service Agreement signed by the casino manager does not automatically exclude them from being held liable if the plaintiffs establish the facts plead in their petition. Moreover, the documents attached to plaintiffs' petition do not contradict the allegations in plaintiffs' petition. Accordingly, the trial court erred in granting the Ledets' exception raising the objection of no cause of action.

We recognize that the Ledets, in support of their exception, attempted to introduce evidence to show that LML Enterprises, LLC, and not the Ledets, operated Cajun Country Casino. However, the plaintiffs objected to admission of the evidence, and it cannot be considered on the exception of no cause of action. LSA-C.C.P. art. 931.

CONCLUSION

For the foregoing reasons, we reverse the trial court's January 12, 2018 judgment granting the exception raising the objection of no cause of action and dismissing the plaintiffs' action against the Ledets. Costs of this appeal are assessed against defendants, John J. Ledet, Jr. and Linda Ledet.

REVERSED.

      Plaintiffs allege that Silver Eagle later acquired certain assets of Tracer, including the Service Agreement at issue. However, plaintiffs aver that Silver Eagle did not acquire the Ledets' outstanding account with Tracer.

      The plaintiffs later amended their petition to name "LML Enterprises, LLC" as a defendant, alleging that it was possible that "LML Enterprises, LLC was a participant in the endeavor operating under the assumed name Cajun Country Casino."


author: WHIPPLE, C.J.

text:
    John W. TEMPLETON v. Lloyd Joseph JARREAU Jr.
    NUMBER 2018 CA 0240
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    James C. Dewey, New Roads, LA, Counsel for Plaintiff/Appellant, John W. Templeton
    Michael E. Parks, New Roads, LA, Counsel for Defendant/Appellee, Lloyd Joseph Jarreau, Jr.
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

This matter is before us on appeal by plaintiff, John W. Templeton, from a judgment of the trial court decreeing that no predial servitude of passage exists over the property of defendant, Lloyd Joseph Jarreau, Jr., and dismissing Templeton's claims for injunctive relief and damages. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On January 24, 2002, Brian and Lorie Threeton purchased a parcel of land in Pointe Coupee Parish designated as Lot 6 on a plat by William H. Pringle, C.E. and Land Surveyor, dated November 27, 1970 (the "Pringle map"), via an act of cash sale from Travis P. Smith, Jr. The Pringle map indicated that Lot 6 is bordered by a "road" along its eastern boundary.

Shortly after purchasing Lot 6, Brian and Lorie Threeton commissioned a survey by Russel L. Mistric, a Licensed Professional Land Surveyor with C. Mistric Surveyors, Inc., to subdivide Lot 6 into four sections. On February 20, 2002, the "Mistric map" was prepared, which shows the "resubdivision of Lot 6 ... into Lots 6A, 6B, 6C, & 6D." The Mistric map provided a fifteen-foot "private servitude of passage for Lots 6C & 6D," along the southern boundary of Lots 6C and 6B, providing access to Reno Street (shown as the "road" on the Pringle map), which runs along the eastern boundary of Lots 6B and 6A. The Mistric map further contained a "dedication," which provided:

The rights of way shown hereon, if not previously dedicated, are hereby dedicated to the perpetual use of the public. All areas shown as servitudes are granted to the public for the use of utilities, drainage, sewage removal or other proper purposes for the general use of the public. No building, structure, or fence shall be constructed, nor shrubbery planted within the limits of any servitudes so as to prevent or unreasonably interfere with any purpose for which the servitude is granted.

Although the Mistric map was not recorded, Lots 6A through 6D, as subdivided therein, were subsequently sold and acquired by various owners.

Plaintiff, John W. Templeton, is the current owner of Lots 6A, 6C, and 6D. Templeton purchased Lots 6C and Lot 6D by a quitclaim deed from Bobby and Lorie Sullivan on May 20, 2007, which was recorded in the conveyance records on May 22, 2007. The legal description of the property contained a reference to "Exhibit A," which Templeton contends is a portion of the Mistric map showing Lot 6C and its adjacent lots as well as a fifteen-foot servitude of passage across Lots 6C and 6B. Templeton subsequently purchased Lot 6A from CMH Homes, Inc. by act of cash sale on November 18, 2008, which was recorded in the conveyance records on January 26, 2009. The legal description of the property therein specifically referenced the Mistric map.

Defendant, Lloyd Joseph Jarreau, Jr., is the owner of Lot 6B, which is adjacent to Lots 6C and 6A. Jarreau purchased Lot 6B from Priscilla Lynn Leon by an act of cash sale on February 27, 2008, which was subsequently recorded in the conveyance records on March 14, 2008. The act of sale, however, described Lot 6B as designated by the Pringle map, despite the fact that the Pringle map showed Lot 6 prior to its subdivision into Lots 6A through 6D, and made no reference to the Mistric map.

On October 10, 2016, Templeton filed a petition for injunctive relief and damages against Jarreau, contending that Lot 6B was burdened by a fifteen-foot servitude of passage along its southern boundary for the benefit of Lots 6C and 6D, as shown on the Mistric map, and that since Jarreau's taking possession of Lot 6B in 2008, Jarreau has interfered with and actively blocked Templeton's use of the servitude. Templeton further contended that he has been unable to lease or market Lot 6C without granting access to Lot 6A, which was adjacent to Lot 6B. Templeton thus sought a mandatory and permanent injunction ordering Jarreau to remove any obstacles, which restrict or interfere with Templeton's use of said servitude, and to cease all actions tending to make use of the servitude more inconvenient or burdensome to Templeton. Templeton also sought damages and costs.

On November 2, 2016, Jarreau filed a peremptory exception of prescription contending that a predial servitude of passage never existed over his property, and that if it had, it had not been used for a period in excess of ten years and was thereby prescribed due to nonuse pursuant to LSA-C.C. art. 753. Jarreau later filed an answer to the petition, on May 23, 2017, denying that a predial servitude of passage was ever created or ever existed across his property as alleged by Templeton, and further averring that the Mistric map relied on by Templeton had never been recorded. He thus argued that no injunction should be issued.

Although the matter was set for trial on July 11, 2017, according to the transcript, the trial court met with counsel in chambers on that date, after which counsel for Templeton offered, filed, and introduced certain exhibits on the record. The trial court thereafter ruled that the instrument conveying title to Jarreau, i.e., the Pringle Map, did not reference a predial servitude on the eastern side of the property, while it did reference a servitude on the south side of the property. The trial court further stated that the only reference to the servitude of passage is on the Mistric Map and that the Mistric Map did not "do enough for the Court to actually convey title because there is no reference whatsoever to an eastern predial servitude of Lot C-6."

At Templeton's request, the trial court subsequently issued written reasons for judgment, finding as follows:

The instrument which conveys Lot C-6, which is the subject of this proceeding, makes no reference to an eastern servitude. Although the instrument references and attaches the "[Mistric] Map," which does indicate an eastern servitude, this is not enough to convey the servitude. Of note, the same instrument recites a predial servitude on the south side of the property conveying same; it is also included on the "[Mistric] Map."
In order for the eastern predial servitude to have been conveyed, it needed to be referenced and more clearly conveyed in the conveyance instrument, as was the case for the servitude on the southern portion of the property.[ ]

On August 21, 2017, the trial court signed a judgment, decreeing that "no predial servitude of passage existed over and across the property of [Jarreau]," and dismissing Templeton's claims at Templeton's costs.

Templeton subsequently filed a motion for new trial and supporting memorandum, contending that there was an implied dedication of the servitude and that the trial court's ruling, based solely on a review of the documents, had precluded any testimony concerning use of the servitude or of Jarreau's position as a holder of a quitclaim deed from a non-owner. Templeton urged therein that where the dedication of a servitude is implied, there is no requirement that the deed or notarial act refer to the servitude, and that a new trial should be granted to consider the testimony of the subdividers of the property and prior true owners and ancestors in title. The motion for new trial was denied by the trial court on September 7, 2017.

Templeton now appeals, contending that the trial court erred as a matter of law in determining that no servitude of passage existed over Lot 6B, where the documents herein are sufficient to create an implied servitude of passage across Jarreau's property, i.e., Lot 6B.

DISCUSSION

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners. LSA-C.C. art. 646. There must be a benefit to the dominant estate. There is no predial servitude if the charge imposed cannot be reasonably expected to benefit the dominant estate. LSA-C.C. art. 647. The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something on his estate or to permit something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. LSA-C.C. art. 651.

Predial servitudes may be established by an owner on his estate or acquired for its benefit. Predial servitudes are established on, or for the benefit of, distinct corporeal immovables and the use and extent of such servitudes are regulated by the title by which they are created.

LSA-C.C. arts. 697 and 698. However, if the title is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in light of its purpose. LSA-C.C. art. 749. Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate. LSA-C.C. art. 730.

A right of passage is an example of a predial servitude. See LSA-C.C. art. 699. The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate. LSA-C.C. art. 705.

Templeton argues on appeal: (1) that there was a subdivision of the property (Lot 6); (2) that the Mistric Map, which subdivided Lot 6 into Lots 6A through 6D, shows a servitude of access across Lot 6B in favor of Lots 6C and 6D; (3) that portions of the subdivision plat were filed with various deeds in Jarreau's chain of title; and (4) that lots were sold on the basis of the subdivided plat, which resulted in an implied dedication of a servitude. Templeton concedes that the complete Mistric Map was never recorded and that no deed or quitclaim transfer expressly mentions the servitude, but contends that a copy of a portion of the Mistric map attached to the Leon quitclaim deed (Jarreau's predecessor-in-title) and a reference to the Mistric map as "EXHIBIT A" in Templeton's deed are sufficient to establish an implied servitude of passage.

Louisiana courts have recognized four modes of dedication to public use: (1) formal, (2) statutory, (3) implied, and (4) tacit. Cenac v. Public Access Water Rights Association, 2002-2660 (La. 6/27/03), 851 So.2d 1006, 1011. Implied dedication is a common law doctrine, but it has been recognized by Louisiana courts since the nineteenth century. See St. Charles Parish School Board v. P & L Investment Corporation, 95-2571 (La. 5/21/96), 674 So.2d 218, 222.

The essential feature of implied dedication is an absence of requisite formalities. 4 A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property § 11:20 at 676 (4th ed. 2013). Because implied dedication lacks the formalities and safeguards of the other modes of dedication, the two indispensable elements of implied dedication required by the courts are "a plain and positive intention to give and one equally plain to accept." St. Charles Parish School Board v. P & L Investment Corporation, 674 So.2d at 222. The plain and positive intent to dedicate must be shown by language or acts so clear as to exclude every other hypothesis but that of dedication. Cenac v. Public Access Water Rights Association, 851 So.2d at 1014.

A servitude by implication can only be found where the servitude is shown on a recorded survey map pursuant to which the property is sold and described, and the language in the deed or on the survey map clearly expresses the intention to establish a servitude for the benefit of owners of neighboring property, by use of words such as "common," "public," or such other designation. Robert Investment Company, Inc. v. Eastbank, Inc., 496 So.2d 465, 469 (La. App. 1st Cir. 1986), (citing James v. Delery, 211 La. 306, 29 So.2d 858 (1947), and Iseringhausen v. Larcade, 147 La. 515, 85 So. 224 (1920) ). However, where an act of sale is silent as to an easement, but the survey plat referred to in the property description, which was attached to a previous act of sale that was recorded in the conveyance records, indicated that there was an easement, a servitude is created. Tate v. South Central Bell Telephone Company, 386 So.2d 139, 140 (La. App. 3rd Cir. 1980).

The weight of authority establishes that an implied dedication gives rise to a servitude of public use and does not transfer ownership. Cenac v. Public Access Water Rights Association, 851 So.2d at 1012 ; St. Charles Parish School Board v. P & L Investment Corporation, 674 So.2d at 222. Moreover, the burden of proving the implied dedication falls upon the party asserting the dedication and the question of intent to dedicate to public use is one of fact. Cenac v. Public Access Water Rights Association, 851 So.2d at 1012. As such, factual findings of a trial court should not be set aside by a court unless they are manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978).

Templeton contends that a portion of the Mistric map is attached to the quitclaim deed by which Jarreau's predecessor-in-title, Priscilla Lynn Leon, acquired Lot 6B from Bobby and Lorie Sullivan on October 2, 2005, which was filed in the conveyance records on October 3, 2005. Thereafter, Jarreau purchased Lot 6B from Priscilla Lynn Leon by act of cash sale on February 27, 2008. The act of sale was recorded in the conveyance records on March 14, 2008. The only plat referenced therein, however, is the Pringle map, which was prepared prior to the subdivision of Lot 6 into parts A through D by the Mistric map and is silent as to a servitude of passage along the southern boundary. The act of sale to Jarreau is likewise silent as to the servitude claimed by Templeton herein.

Relying on Becnel v. Citrus Lands of Louisiana, Inc., 429 So.2d 459 (La. App. 4th Cir.), writ denied, 437 So.2d 1147 (La. 1983). Templeton contends that showing a servitude on a plat, then making transfers based on the plat and servitude is a form of implied dedication. We nevertheless find Becnel distinguishable herein, where, unlike the instant case, in Becnel, the subdivision plat at issue was recorded in the conveyance records. See Becnel v. Citrus Lands of Louisiana, Inc., 429 So.2d at 460.

In the case before us, the sale of the property to Jarreau did not reference the Mistric map, which contained the purported servitude of passage. Thus, to the extent that Templeton relies on Becnel, and James for that matter, we find that those cases are not controlling herein. Moreover, unlike the instant case, the plat in James was recorded prior to the sale of lots in the subdivision. See James v. Delery, 211 La. at 308, 29 So.2d at 859.

Templeton also relies on Garrett v. Pioneer Production Corporation, 390 So.2d 851 (La. 1980), where the court found that where sales were made prior to the recordation of the plats referenced therein, and the plats were subsequently recorded, "it is enough that the plats were filed ... and that the plaintiffs' ancestors in title, rather than objecting to or disavowing the plats, expressly relied upon them in their transactions involving the property" to conclude that plaintiffs ancestors in title intended to statutorily dedicate the streets. Garrett v. Pioneer Production Corporation, 390 So.2d at 857-858. However, again, in Garrett, the plat relied upon therein was filed or recorded.

Finally, relying on Southern Amusement Company, Inc. v. Pat's of Henderson Seafood & Steak, Inc., 2003-767 (La. App. 3rd Cir. 3/31/04), 871 So.2d 630, Templeton contends that when a subdivider sells any part of the property with reference to the map, the servitude created by that act becomes a public right of way. On review, however, we note that in Southern Amusement Company, Inc., the cash deed and a subsequent act of correction of deed that purportedly established the predial servitude at issue therein were filed in the conveyance records. See Southern Amusement Company, Inc. v. Pat's of Henderson Seafood & Steak, Inc., 871 So.2d at 631. Accordingly, we are not persuaded by this line of jurisprudence.

On the record before us, it appears that the parties submitted the matter on briefs before the trial court, and no evidence of the parties' intent, in the form of testimony, affidavits, or otherwise, was introduced. Templeton contends in his brief on appeal, however, that "the intent of the parties" can be determined "by an examination of the documents that they executed."

Accordingly, on review of the documents introduced herein, we agree that Templeton failed to meet his burden of establishing an implied dedication of a servitude of passage over Lot 6B. A servitude by implication can only be found where the servitude is shown on a recorded survey map pursuant to which the property is sold and described,see Robert Investment Company, Inc. v. Eastbank, Inc., 496 So.2d at 469, and the sale of Lot 6B to Jarreau herein is based on a recorded survey plat, the Pringle map, which bears no mention of a servitude of passage over Lot 6B. Moreover, the Mistric map, which Templeton contends is referred to in other conveyances and of which portions of same are attached, has undisputedly never been recorded in the conveyance records of Pointe Coupee Parish.

Thus, on review we are constrained to find no error in the judgment of the trial court decreeing that no predial servitude of passage exists over and across the property of Jarreau and dismissing Templeton's claims at Templeton's costs.

CONCLUSION

For the above and foregoing reasons, the August 21, 2017 judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiff/appellant, John W. Templeton.

AFFIRMED.

      The Pringle map was a plat showing a subdivision of land of the Estate of Joseph Reno acquired from Dr. John A. Haas by deed dated March 30, 1920.

      The survey will be referred to herein as the "Mistric map" although it is erroneously referred to in the trial court's written reasons and the transcript as the "Mystric map."

      Louisiana Civil Code article 753 provides that a predial servitude is extinguished by nonuse for ten years.

      In its oral and written reasons, the trial court referred to the servitude sought by Templeton herein as an "eastern" predial servitude over Lot 6B. In fact, the trial court noted in both its oral and written reasons that the instrument conveying title to Jarreau, which references the Pringle map, does not reference a servitude on the eastern side, while it does reference a servitude on the southern side. However, according to the pleadings and exhibits contained in the record, as well as the parties' argument in brief, Templeton is seeking a servitude of passage over the "southern "-most fifteen feet of Lot 6B in favor of Lot 6C for the benefit of Lots 6C and 6D, and the Pringle map shows an established "road" on the "eastern " boundary of Lot 6. The judgment of the trial court before us on appeal nonetheless simply decrees that "no predial servitude of passage exists over and across the property of [Jarreau]." Because this court reviews judgments and not reasons for judgment, see LAD Services of Louisiana, L.L.C. v. Superior Derrick Services, L.L.C., 2013-0163 (La. App. 1st Cir. 11/7/14), 167 So.3d 746, 753, writ not considered, 2015-0086 (La. 4/2/15), 162 So.3d 392, on review of the trial court's judgment herein, we will consider whether the trial court correctly determined that no predial servitude of passage exists across the southern boundary of Lot 6B as sought by Templeton in these proceedings.

      The trial court's determination that no predial servitude of passage exists seemingly rendered moot Jarreau's peremptory exception of prescription averring extinguishment of the servitude by ten-years nonuse.

      The establishment of a predial servitude by title is an alienation of a part of the property to which the law's governing alienation of immovables apply. LSA-C.C. art. 708. Predial servitudes are established by all acts by which immovables may be transferred. LSA-C.C. art. 722. Moreover, a predial servitude may be established on a certain part of an estate, if that part is sufficiently described. LSA-C.C. art. 727.

      Counsel for Templeton contends that much of this dispute is a result of a series of very poorly drafted legal documents, which appear to have been prepared by the parties to the various transactions. Templeton concedes that the series of title documents leading to Jarreau's acquisition of Lot 6B are "so poorly prepared and drafted" that Jarreau's deed to Lot 6B would require more than one act of correction and that the deeds, as filed, may not have conveyed any title to Jarreau. He further concedes that none of the poorly drawn donation and quitclaim deeds ever expressly mentioned the Mistric map so as to sufficiently convey the servitude of passage by title .

      It is undisputed that Jarreau's title to Lot 6B is silent as to the existence of a servitude and that the Pringle map referenced in Jarreau's title, which is recorded in the conveyance records, does not contain a servitude of passage across Lot 6B.

      The transcript indicates that at the hearing, counsel for Templeton did not attempt to call witnesses, did not place any objections on the record, and did not request to proffer any testimony given the trial court's alleged refusal to allow testimony. In fact, at the commencement of the hearing, counsel for Templeton stated, "We had a short meeting in Chambers and the parties agree that the documents that's been submitted and attached to our pre-trial memos ... [w]e essentially decided the issue of whether or not there is a servitude on this property ... [a]nd we agree that there's no need for any individual testimony because the documents are what the documents are." In his brief on appeal, Templeton confirmed that "[t]he parties agreed that since the claim would be almost entirely based on documents, they would submit the matter on briefs. Both sides filed memos with deeds and copies of documents attached." Again, in his statement of facts, Templeton confirmed that "[t]he matter was submitted on briefs."
      In his motion for new trial, however, Templeton raised the theory of implied dedication, arguing that the trial court's dismissal of his claims was error. Templeton further argued that the ruling of the trial court "precluded any testimony of the use of the servitude or of Mr. Jarreau's position as a holder of a [quitclaim] deed from a non-owner" and the "fact that his deed was defective and should be corrected opens the door to statements from prior owners as to the existence of the servitude" such that a new trial should be granted.


author: McCLENDON, J.

text:
    Walter LEWIS and Beverly Lewis v. Mollie FOWLER and Progressive Security Insurance Company
    2018 CA 0365
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Willie G. Johnson, Jr., Jennifer O. Robinson, Derek E. Elsey, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants Walter Lewis and Beverly Lewis
    Adrianne L. Baumgartner, Covington, Louisiana, Counsel for Defendant/Appellee State Farm Mutual Automobile Insurance Company
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

In this suit for personal injuries arising from a motor vehicle accident, the plaintiffs appeal a judgment of the trial court that dismissed their claims against their uninsured motorist carrier. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 11, 2014, the vehicle of the plaintiffs, Walter Lewis and Beverly Lewis, was stopped at a red light in Ponchatoula, Louisiana, when another vehicle, driven by Mollie Fowler, stopped behind them. As stipulated, Ms. Fowler glanced down at her cellphone and inadvertently drifted forward, resulting in a low-speed impact at approximately three to five miles per hour. Ms. Fowler's vehicle was not damaged, and the plaintiffs' vehicle incurred slight damage.

On May 6, 2015, the plaintiffs filed a Petition for Damages against Ms. Fowler and her liability insurer, Progressive Northwestern Insurance Company (Progressive). In September of 2015, Mr. Lewis agreed to accept $14,900.00 and Ms. Lewis agreed to accept $25,000.00 for their injury claims from the defendants, in exchange for a full release of the defendants. The policy limits for Ms. Fowler's liability coverage with Progressive were in the amounts of $25,000.00 per person and $50,000.00 per accident.

Thereafter, on November 20, 2015, the plaintiffs filed a First Supplemental and Amending Petition for Damages, adding State Farm Mutual Automobile Insurance Company (State Farm) as a defendant and as their uninsured/underinsured (UM) motorist carrier and alleging that their damages exceeded the underlying policy limits. On April 21, 2016, Ms. Fowler and Progressive were dismissed from the lawsuit.

On August 7, 2017, the trial court held a bench trial on the plaintiffs' remaining claims under their UM policy, after which it took the matter under advisement. On August 25, 2017, the trial court issued its Reasons for Judgment, finding that the plaintiffs failed to prove by a preponderance of the evidence that their chronic pain was aggravated by the motor vehicle accident beyond a brief period of time, and, accordingly, the plaintiffs failed to sufficiently prove that any injuries or aggravations caused by the accident were not adequately compensated for by the underlying insurance coverage. The trial court granted judgment in favor of State Farm and dismissed the plaintiffs' claims with prejudice. A judgment to that effect was signed on September 21, 2017, and the plaintiffs have appealed.

DISCUSSION

An appellate court's review of factual findings is governed by the manifest error or clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous.

Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the trial court's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court's factual finding only if, after reviewing the record in its entirety, it determines the trial court's finding was clearly wrong. See Stobart v. State, through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). The manifest error standard of review obligates an appellate court to give great deference to the trial court's findings of fact. We will not reverse factual determinations, absent a finding of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

Moreover, where factual findings are based on determinations regarding the credibility of witnesses, the trier of fact's findings demand great deference and are virtually never manifestly erroneous or clearly wrong. Secret Cove, L.L.C. v. Thomas, 02-2498 (La.App. 1 Cir. 11/7/03), 862 So.2d 1010, 1016, writ denied, 04-0447 (La. 4/2/04), 869 So.2d 889. Even though an appellate court may feel that its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, 549 So.2d at 844. The rule that questions of credibility are for the trier of fact applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Foley v. Entergy Louisiana, Inc., 06-0983 (La. 11/29/06), 946 So.2d 144, 153.

It is also well-settled that a factfinder is given great discretion in assessing quantum for both general and special damages. LSA-C.C. art. 2324.1 ; Guillory v. Lee, 09-0075 (La. 6/26/09), 16 So.3d 1104, 1116. An appellate court reviews the amount awarded by the factfinder under the abuse of discretion standard. Gaspard v. Southern Farm Bureau Cas. Ins. Co., 13-0800 (La.App. 1 Cir. 9/24/14), 155 So.3d 24, 30. Accordingly, we reject the plaintiffs' argument that the standard of review on appeal is de novo.

The record establishes the following. Mr. Lewis sustained a serious on-the-job injury in 2003, resulting in herniated discs in his neck and back. He was deemed totally and permanently disabled, has never been able to return to work, and receives benefits for his total and permanent disability. Mr. Lewis has not had surgery, but since 2003, he has had a significant medical history for degenerative disc disease and back and neck pain.

After the May 11, 2014 accident, Mr. Lewis sought medical treatment with Dr. Barrett Johnston on May 27, 2014. Mr. Lewis gave a history of the accident to Dr. Johnston and reported back pain. He also reported that he had suffered back pain fifteen years earlier that had resolved. Dr. Johnston's office notes do not indicate that Mr. Lewis told Dr. Johnston about his long-standing complaints of back and neck pain, his herniated discs, or disabilities. Following the visit, cervical and lumbar MRIs were performed, and physical therapy was subsequently ordered. Mr. Lewis attended physical therapy and, after twelve sessions, was discharged on August 18, 2014, about three months post-accident, reporting that he was approximately eighty percent pain free.

At trial, Mr. Lewis testified that he had not returned to his pre-accident condition when he was discharged from physical therapy. However, when reminded of his deposition, he did not dispute his testimony therein that he was back to his pre-accident status upon discharge from physical therapy.

More than a year later, on October 27, 2015, Mr. Lewis went to the Healing Health Center for chiropractic care and medical pain management. Mr. Lewis inaccurately reported that he went to the emergency room after the May 11, 2014 accident and that all injuries suffered from the 2003 work-related accident were resolved. In his deposition, Dr. Samuel Greenberg of the Healing Health Center acknowledged that Mr. Lewis never mentioned that he had degenerative disc disease, herniated discs, or a long medical history of back and neck pain.

Ms. Lewis had a previous medical history of back and hip complaints as well. In 2004, she was treated by Dr. John Walker for back and right hip and leg pain. Ms. Lewis was also treated by Dr. Walker in January of 2005 for right shoulder pain radiating into her lower back and in July of 2007 for right hip pain. Additionally, Ms. Lewis was involved in an automobile accident in August of 2009. In October of 2009, she was treated for complaints of left hip, shoulder, and low back pain. Physical therapy was ordered, and Ms. Lewis continued to complain of low back and hip pain in January of 2010. Further, in September of 2012, Ms. Lewis complained to Dr. Walker of low back pain, due to lifting at work.

After the May 11, 2014 accident, Ms. Lewis, like her husband, first sought treatment two weeks thereafter, on May 27, 2014. She complained of progressive low back pain. Ms. Lewis gave a history of the May 11, 2014 accident to Dr. Johnston and reported no back pain prior to the accident. She made no complaints of neck pain at that time. Medications were prescribed, a lumbar MRI was performed, which showed degenerative changes, and physical therapy was ordered. On August 18, 2014, after twelve sessions of therapy and about three months post-accident, Ms. Lewis was discharged from physical therapy, reporting that she was eighty percent pain free with intermittent discomfort in her low back.

Subsequently, on November 9, 2014, Ms. Lewis sought treatment at the emergency room after a truck backed into the side of her vehicle in a Wal-Mart parking lot. This accident had occurred two days previously. Ms. Lewis complained of low back pain. She then sought treatment with Dr. Walker on December 8, 2014, and again on December 16, 2014, complaining of back and neck pain after the November 7, 2014 accident.

On December 18, 2014, Ms. Lewis returned to Dr. Johnston with complaints of low back and neck pain, and she was referred to physical therapy. Dr. Johnston saw Ms. Lewis again on February 24, 2015, for severe low back and neck pain. Ms. Lewis continued physical therapy, and because of her continuing back pain, another round of physical therapy was ordered. Ms. Lewis returned to Dr. Johnston for low back pain on March 24, 2015, at which time it was noted that Ms. Lewis had been off all medications and therapy prior to the November 2014 accident.

Also like her husband, Ms. Lewis began treatment with the Healing Health Center on October 27, 2015. In his deposition, Dr. Greenberg of the Healing Health Center acknowledged that he was not provided with Ms. Lewis's medical records prior to the May 11, 2014 accident. Ms. Lewis reported that all of her injuries suffered in the May 11, 2014 accident were resolved before the November 7, 2014 accident.

The trial court found that the May 11, 2014 accident aggravated the chronic pain of the plaintiffs for only a brief period of time. Upon our own thorough review of the record, we cannot say that this factual finding was clearly wrong. Based on the entire record, the trial court could have reasonably concluded that the plaintiffs were injured in the May 11, 2014 accident, but not to the extent alleged and that in a few months they had returned to their pre-accident status. The trial court considered the inconsistencies between the plaintiffs' statements about their medical conditions and their medical records. It also considered, but rejected, Dr. Greenberg's testimony that the plaintiffs' current complaints were related to the May 11, 2014 accident. As noted by the trial court, Dr. Greenberg was not made aware of the plaintiffs' prior back and neck complaints, and, when made aware, Dr. Greenberg was vague as to the extent of any aggravation of the prior conditions and duration of any aggravation. Questions of credibility are for the trier of fact, including the evaluation of expert testimony. Foley, 946 So.2d at 153. Thus, the factfinder is not bound by the testimony of an expert. Rather, expert testimony is to be weighed the same as any other evidence, meaning that an expert's opinion may be rejected in whole or in part, and the factfinder may even substitute its own common sense and judgment for that of an expert when such substitution appears warranted on the record as a whole. Richardson v. Bridgefield Cas. Ins. Co., 14-1587 (La.App. 1 Cir. 8/10/15), 181 So.3d 61, 67-68.

The trial court determined that the plaintiffs were adequately compensated by the underlying insurance policy and that their damages were $25,000.00 or less. We find no manifest error or abuse of discretion on the part of the trial court.

CONCLUSION

For the above reasons, we affirm the September 21, 2017 judgment of the trial court. Costs of this appeal are assessed to the plaintiffs, Walter Lewis and Beverly Lewis.

AFFIRMED.

      As part of the joint stipulation, the amount of damage to the plaintiffs' vehicle was $1,507.95.

      The State Farm UM limits at issue in this matter are $25,000.00 per person and $50,000.00 per accident.

      On appeal, the plaintiffs argue that the standard of review is de novo because the trial court committed legal error that interdicted the factfinding process when it determined that the plaintiffs' damages were adequately compensated for by the underlying insurance policy.

      Mr. Lewis stated, "I was back to where I was before."


text:
    Michael DORSEY v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018 CA 0416
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Michael Dorsey, Cottonport, LA, Plaintiff-Appellant, In Proper Person
    Debra A. Rutledge, Baton Rouge, LA, Attorney for Defendant-Appellee, Louisiana Department of Public Safety and Corrections
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

In this appeal, an inmate in the custody of the Louisiana Department of Public Safety and Corrections ("DPSC") appeals the district court's judgment dismissing his petition for judicial review of the final agency decision rendered in a disciplinary matter on the grounds that he failed to raise a "substantial right" violation and, thus, failed to state a cause of action.

FACTS AND PROCEDURAL HISTORY

On March 27, 2016, Michael Dorsey, an inmate in the custody of the DPSC, was issued a disciplinary report for violating Disciplinary Rules and Procedures for Adult Offenders. Dorsey was charged with violating Rule 30D (General Prohibited Behaviors) for giving a letter to an officer while in the infirmary in an "attempt to gain a non-professional relationship" with the officer. Following a hearing, the Disciplinary Board found him guilty and sentenced him to a custody change to maximum working cell block and six weeks loss of yard privileges. He appealed the decision to the warden and the Secretary of the DPSC, and his appeal was denied by both.

On October 28, 2016, Dorsey filed a petition for judicial review in the Nineteenth Judicial District Court contending that his due process rights were violated. In a recommendation issued by the commissioner, the commissioner concluded that Dorsey failed to state a cause of action because he did not raise a violation of his substantial rights. Therefore, the commissioner recommended that Dorsey's petition for judicial review be dismissed. After a de novo review of the record, the district court adopted the reasons of the commissioner and dismissed Dorsey's petition without prejudice. Dorsey then filed the instant appeal.

DISCUSSION

Pursuant to La. R.S. 15:1177(A)(9), a district court may modify or reverse a decision of the DPSC in a prison disciplinary action "only if substantial rights of the appellant have been prejudiced" because the DPSC's findings or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or characterized by abuse of discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial evidence in the whole record. (Emphasis added).

The notion that the procedural protections of the Due Process Clause are triggered by any substantial deprivation imposed by prison authorities has been soundly rejected. See Meachum v. Fano, 427 U.S. 215, 224-225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law. Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 2301, 132 L.Ed.2d 418 (1995). Thus, in order for Dorsey's petition to state a cognizable claim for judicial review of a disciplinary matter, it must allege facts demonstrating that his "substantial rights" were prejudiced by the agency's decision. See Giles v. Cain, 99-1201 (La. App. 1st Cir. 6/23/00), 762 So.2d 734, 738.

Here, the disciplinary proceedings resulted in a change in Dorsey's custody status and a temporary loss of yard privileges. It is well settled that a change of custody status and loss of yard privileges do not constitute atypical or significant hardships in relation to the ordinary incidents of prison life and do not prejudice an inmate's substantial rights. See Robinson v. Rader, 2014-0333 (La. App. 1st Cir. 11/20/14), 167 So.3d 780, 781 ; Harris v. Cain, 2010-1474 (La. App. 1st Cir. 2/11/11), 2011 WL 846078, *2 (unpublished); Simmons v. Louisiana Department of Public Safety and Corrections, 2017-0961 (La. App. 1st Cir. 2/20/18), 2018 WL 946946, *1 (unpublished). Because Dorsey's change in custody status and loss of yard privileges do not affect his substantial rights, the district court did not err in dismissing Dorsey's claim. See La. R.S. 15:1177(A)(9), and 1178.

CONCLUSION

For the foregoing reasons, the October 24, 2017 judgment of the district court dismissing Dorsey's petition for judicial review without prejudice is affirmed. All costs of the appeal are assessed against plaintiff-appellant, Michael Dorsey.

AFFIRMED.

      These rules are compiled in the Louisiana Administrative Code, Title 22, Part I, Chapter 3, Subchapter B. See LAC 22:I.341.