author: PENZATO, J.

text:
    Cherlyn Denise CROCKERHAM v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, Ryan David Dickerson, M.D., Jacob Estes, M.D., and Woman's Hospital Foundation
    2017 CA 1590
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 21, 2018
    Robert W. Hallack, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellant, Cherlyn Denise Crockerham
    Randall L. Champagne, William A. Fell, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Woman's Hospital Foundation
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

Appellant, Cherlyn Denise Crockerham, appeals the trial court's judgment granting summary judgment in favor of Appellee, Woman's Hospital Foundation (Woman's Hospital), and dismissing her claims against Woman's Hospital. For the reasons that follow, we amend the summary judgment and reverse, in part, and affirm, in part, the judgment as amended.

FACTS AND PROCEDURAL HISTORY

On May 8, 2009, Ms. Crockerham underwent a robotic-assisted laparoscopic hysterectomy (robotic procedure) performed by Dr. Ryan Dickerson and Dr. Jacob Estes at Woman's Hospital. Ms. Crockerham claims that as a result of this procedure, she lost bladder function, and in accordance with the Louisiana Medical Malpractice Act, she submitted her claim to the Medical Review Panel. With regard to Woman's Hospital, the Medical Review Panel determined that the evidence did not support the conclusion that Woman's Hospital failed to comply with the appropriate standard of care. The Medical Review Panel also found that there was a material issue of fact with regard to Woman's Hospital as to whether Dr. Dickerson had the proper credentials to perform the surgery.

Ms. Crockerham filed a lawsuit on October 20, 2011, and named as defendants, Louisiana Medical Mutual Insurance Company, Dr. Dickerson, Dr. Estes, and Woman's Hospital. Ms. Crockerham alleged that Woman's Hospital was negligent in permitting Dr. Dickerson to perform the robotic procedure without the proper credentials and failing to obtain informed consent because Dr. Dickerson did not disclose that he had never operated using the robotic device nor seen it used on a live human being.

After discovery took place, Woman's Hospital filed a motion for summary judgment asserting that Ms. Crockerham had no evidence that Dr. Dickerson was negligently credentialed and that there was no expert testimony that Woman's Hospital had breached the standard of care. Attached to the motion was a memorandum in support with several exhibits: a position paper of Woman's Hospital submitted to the Medical Review panel; a copy of Ms. Crockerham's complaint; the Medical Review Panel opinion and other documents filed with the Medical Review Panel; the petition in this matter; the deposition of Dr. Dickerson; the deposition of Dr. James M. Wheeler, expert for Ms. Crockerham; the deposition of Ms. Crockerham; and the affidavit of Creighton Abadie, the attorney representative on the Medical Review Panel, summarizing the findings of the Medical Review Panel.

Both parties maintain that by clerk of court notice dated November 30, 2016, the hearing on the motion for summary judgment was originally set for May 8, 2017. Both parties further agree that they then received a second notice from the clerk of court resetting the hearing for March 20, 2017. Counsel for Ms. Crockerham admits he received the second notice, but asserts that he misunderstood it. As a result, Ms. Crockerham filed no opposition to the motion for summary judgment prior to the March 20, 2017 hearing date. On that date, only counsel for Woman's Hospital appeared, and the trial court granted the summary judgment. The trial court signed the judgment in accordance with his oral ruling on the same date, dismissing Ms. Crockerham's lawsuit against Woman's Hospital.

Unaware that the hearing had taken place on March 20, 2017, Ms. Crockerham filed an opposition to the motion for summary judgment on April 27, 2017. The March 20, 2017 judgment was not served on Ms. Crockerham's counsel until August 1, 2017. On August 11, 2017, Ms. Crockerham filed a motion for new trial, which the trial court summarily denied without a hearing on August 16, 2017. In its denial, the trial court stated:

Mover acknowledges that the Dec. 2, 2016 notice moved the hearing from 5/8/17 to 3/20/17. For whatever reason mover did not file an opposition until April 27, 2017 after scheduled hearing. Therefore, by admission the [motion for summary judgment] was not opposed.

Ms. Crockerham filed this appeal from the March 20, 2017 judgment granting the motion for summary judgment and dismissing her claims. She assigns as error that the trial court committed error in failing to find a genuine issue of material fact based on the Medical Review Panel opinion and the deposition of Dr. Wheeler. Ms. Crockerham asserts that even though the motion for summary judgment was unopposed, the exhibits submitted by mover created a genuine issue of material fact.

SUMMARY JUDGMENT

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

The initial burden of proof is on the mover. If the mover will not bear the burden of proof at trial, the mover's burden does not require him to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. Thereafter, the burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

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

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

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

As pointed out by Ms. Crockerham, the failure to file an opposition does not automatically require that the motion for summary judgment be granted, as the initial burden of proof is on the mover. La. C.C.P. art. 966(D)(1). In deciding a summary judgment motion, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material fact issues. If not, summary judgment must be denied in favor of a trial on the merits. Dimattia v. Jackson Nat. Life Ins. Co., 2004-1936 (La. App. 1 Cir. 9/23/05), 923 So.2d 126, 129. It is important to note, however, that when a motion for summary judgment is made and properly supported, an adverse party may not rest on the mere allegations or denials of her pleading. La. C.C.P. art. 967(B). Therefore, we must first conduct a de novo review of the evidence submitted with the motion for summary judgment and determine if there were no genuine issues of material fact.

LAW AND DISCUSSION

Ms. Crockerham asserts that the trial court erred in failing to find that the Medical Review Panel opinion and the deposition of her expert, Dr. Wheeler, which was submitted by Woman's Hospital created a genuine issue of material fact.

Negligent Credentialing

Ms. Crockerham has made a claim against Woman's Hospital for negligent credentialing. A plaintiff's claim for negligent credentialing is not entitled to the limitations on liability contained in Louisiana's Medical Malpractice Act, but should proceed in accordance with general tort law. Billeaudeau v. Opelousas Gen. Hosp. Auth., 2016-0846 (La. 10/19/16), 218 So.3d 513, 527. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Daniels v. USAgencies Cas. Ins. Co., 2011-1357 (La. App. 1 Cir. 5/3/12), 92 So.3d 1049, 1055. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of protection element); and (5) the actual damages (the damage element). Daniels , 92 So.3d at 1055. A negative answer to any of the elements prompts a no-liability determination. Id.

After the motion for summary judgment hearing, Ms. Crockerham filed her opposition to the motion for summary judgment and attached a document which she obtained from Woman's Hospital in response to requests for production of documents entitled "Privileges for Woman's Hospital da Vinci Surgical System." We agree with Woman's Hospital that this court cannot rely on the aforementioned document as it was untimely and appropriately not considered by the trial court. The trial court can consider only those documents filed in support of or in opposition to the motion for summary judgment. La. C.C.P. art. 966(D)(2). Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with La. C.C.P. art. 1313 not less than fifteen days prior to the hearing on the motion. La. C.C.P. art. 966(B)(2). The court of appeal is not a court of original jurisdiction, and cannot receive new evidence or exhibits.

Guilbeau v. Custom Homes by Jim Russell, Inc., 2006-0050 (La. App. 1 Cir. 11/3/06), 950 So.2d 732, 735. We are permitted to review only the evidence that was before the trial court.

Attached to the motion for summary judgment were the depositions of Dr. Dickerson and Dr. Wheeler. With regard to credentialing, Dr. Dickerson testified that he underwent a day-long course in New Orleans where the robotic procedure was performed on pigs. He turned in his course certificate which was approved by Woman's Hospital, and he was granted privileges to conduct the robotic procedure as long as a proctor, who already had privileges, was present in his first three surgeries. Dr. Dickerson admitted that the surgery on Ms. Crockerham was his first robotic hysterectomy. He also stated that he did not observe any robotic-assisted laparoscopic hysterectomies before Ms. Crockerham's surgery, and he was unaware if such observation was a requirement for privileges.

While the Privileges for Woman's Hospital da Vinci Surgical System document was not before the trial court, Dr. Wheeler's testimony regarding the document was clearly before the court. Dr. Wheeler testified that he had read the credentialing requirements of Woman's Hospital, and he could not believe that Dr. Dickerson was allowed to perform the robotic procedure on Ms. Crockerham. Dr. Wheeler explained that Dr. Dickerson was unqualified to perform the robotic procedure because the only evidence available was that Dr. Dickerson completed the course in New Orleans and the certificate stated that it did not substitute for any other training. Dr. Wheeler further testified that there was no evidence that Dr. Dickerson observed a robotic procedure on a human prior to Ms. Crockerham's surgery. When specifically asked what criticisms he had of Woman's Hospital, he stated:

Credentials, that would include Dr. Dickerson. And I don't know, in addition to the labs he's done, he was supposed to have observed at least one case, right? So I don't know if your stipulation included that observation period. But the hospital is required to make sure that [the] surgeon is qualified.

Dr. Wheeler is referring to a hypothetical given him previously, which Woman's Hospital relies upon in this court. Counsel for Woman's Hospital asked the following:

Q. So if I were to tell you or ask you to assume that he met the requirements of the privileges for Woman's Hospital, that are also included here, which I'll show you, ... do you believe that those requirements, as described there, are adequate for credentialing for the robotic privileges?
* * *
A. And your question is would I consider this adequate?
Q. Assuming that he met all the requirements of that document that apply to him, yes.
A. Then I would have to testify he satisfied the requirements of Woman's Hospital.
Q. Okay. Do you believe that the requirements of Woman's Hospital are adequate?
A. I can't attest to that, unless I was more knowledgeable of the details. For example, if each-if the animal lab was fifteen minutes. You know, I would have to know more details about each of these. I could certainly say potentially, if these were well-conducted courses, this would be satisfactory. But I need to know more details.

Dr. Wheeler also offered the following exchange:

Q. If Dr. Dickerson had not officially witnessed an entire [robotic] procedure on a human being, would he have had the credentials to enable him to participate in a proctored-as a proctored surgeon?
A. No. Because it says right here, it says, "must observe at least one case."
Q. And if the hospital had let him operate, and he had not indeed seen a complete procedure on a human, a complete [robotic] procedure on a human being, in your opinion would they have deviated from the standard of care?
* * *
A. Yes. I do feel that they would have deviated from the standard of care in general and from the hospital's privileges specifically.
Q. ... So would it be fair to say that they did not enforce their own credentialing?
A. That would be a conclusion that would be reasonable.

(Emphasis added).

Woman's Hospital claims that the deposition of Dr. Dickerson establishes a prima facie case that he was properly credentialed to perform the surgery, thereby shifting the burden to Ms. Crockerham to show the credentialing standard required by the hospital that Dr. Dickerson failed to meet. Woman's Hospital also claims that Ms. Crockerham's only expert did not have enough knowledge to know Dr. Dickerson's credentials or if Woman's Hospital's credentialing requirements were adequate.

We disagree with Woman's Hospital's characterization of the above testimony. Dr. Wheeler testified that Dr. Dickerson was required by Woman's Hospital to observe a human case using the robotic procedure, Dr. Dickerson clearly testified that he did not do so. The hypothetical question posed by Woman's Hospital asked Dr. Wheeler to assume that Dr. Dickerson met the qualifications. Dr. Wheeler pointed out that the hypothetical did not include the observation period. Ms. Crockerham has alleged that Woman's Hospital was negligent in "[a]llowing Dr. Dickerson to operate without proper credentials or by extending credentials [to] operate in violation of the hospital[']s own procedures and bylaws, etc." The issue is not just whether Woman's Hospital's credentialing requirements were adequate, but also whether Dr. Dickerson operated in violation of those requirements. The testimony of Dr. Wheeler is sufficient to raise a genuine issue of material fact as to whether Woman's Hospital violated its own credentialing requirements in not requiring Dr. Dickerson to observe at least one human surgery using the robotic procedure before he was permitted to perform the surgery.

Woman's Hospital also claims that Dr. Wheeler was not qualified to testify regarding the procedure because he had never performed the procedure and had never been credentialed in a robotic procedure. The appellate court is not the proper place to challenge the qualifications of an expert.

In the present case, Woman's Hospital submitted the depositions of both Dr. Dickerson and Dr. Wheeler. The deposition of Dr. Wheeler includes a discussion of his qualifications. At no time did Woman's Hospital properly challenge Dr. Wheeler's qualifications or submit an affidavit from a countervailing expert indicating that Dr. Wheeler was unqualified to give an opinion in this matter. In fact, as stated earlier, it was Woman's Hospital that submitted Dr. Wheeler's testimony in this matter. Any challenge to the qualifications or methodology of the plaintiff's expert should be filed in a pre-trial motion in accordance with La. C.C.P. art. 1425(F).

Louisiana Code of Civil Procedure article 1425(F) sets out in detail the procedure which should be followed in order to challenge the qualifications of an expert or the methodology used by the expert in reaching his opinion. Adolph v. Lighthouse Prop. Ins. Corp., 2016-1275 (La. App. 1 Cir. 9/8/17), 227 So.3d 316, 320, citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; Cheairs v. State ex rel. Department of Transportation & Development, 2003-0680 (La. 12/3/03), 861 So.2d 536, 541.

There is nothing in the record indicating that Woman's Hospital challenged the qualifications of Dr. Wheeler at the trial court level or that the trial court held a Daubert hearing. The law is well settled that the trial court cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence in making its decision whether to grant or deny a motion for summary judgment. Pumphrey v. Harris, 2012-0405 (La. App. 1 Cir. 11/2/12), 111 So.3d 86, 91. Simply claiming that an expert is not qualified without any facts or competing expert opinion is insufficient to withstand summary judgment. Adolph , 227 So.3d at 321, citing Hayne v. Woodridge Condominiums, Inc., 2006-923 (La. App. 5 Cir. 4/11/07), 957 So.2d 804, 809.

Because the trial court was presented with the testimony of Dr. Dickerson that he met the credentials of Woman's Hospital and the testimony of Dr. Wheeler that Dr. Dickerson did not meet those credentials, the trial court must have weighed the credibility of one witness or favored certain evidence over another, which is disallowed in a motion for summary judgment. See Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533 (La. 2/20/04), 866 So.2d 228, 234. In our review of the trial court's action, we simply cannot say as a matter of law, that there are no genuine issues of material fact as to whether Dr. Dickerson met the necessary credential requirement to perform the procedure in question.

Informed Consent

Ms. Crockerham also alleged in her petition that Woman's Hospital failed to obtain informed consent from her, since Dr. Dickerson did not disclose that he had never operated, nor seen a laparoscopic hysterectomy using the robotic procedure, on a live human being. Woman's Hospital asserts that the duty of obtaining informed consent from a patient is owed by the physician or health care provider who will actually be performing the contemplated medical or surgical procedure. Phillips v. State ex rel. LSU Medical Center , 2008-1411 (La. App. 3 Cir. 4/15/09), 9 So.3d 1080, 1083. (Appellant Brief at p. 12). At the time of Ms. Crockerham's surgery in 2009, La. R.S. 40:1299.40(E)(7)(c) (currently La. R.S. 40:1157.2(P) ) provided that in order to be covered by the statutory provisions relative to informed consent, "the physician or other health care provider who will actually perform the contemplated medical or surgical procedure" must make the required disclosures. Therefore, the statute expressly places the duty of obtaining the informed consent of a patient on the physician or health care provider who will actually be performing the procedure. Phillips , 9 So.3d at 1083. The hospital has no duty to inform the patient of the risks associated with the surgery. Mohsan v. Roule-Graham, 2005-122 (La. App. 5 Cir. 6/28/05), 907 So.2d 804, 806, writ denied, 2005-1976 (La. 2/3/06), 922 So.2d 1184, citing Kelley v. Kitahama, 95-45 (La. App. 5 Cir. 5/15/96), 675 So.2d 1181, 1183, writ denied , 1996-1555 (La. 9/27/96), 679 So.2d 1352.

At the trial court level, Woman's Hospital relied upon Hondroulis v. Schuhmacher , 553 So.2d 398, 411-12 (La. 1988) (on rehearing), asserting that the case held that physicians, not hospitals, are required to obtain informed consent. The trial court appeared to rely upon this case stating in its reasons:

And with the exception of Dr. Wheeler's opinion, which is contrary to the supreme court as to who is responsible for informed consent, that doesn't seem to be any real issue of material fact and I'll grant summary judgment on behalf of Woman's [Hospital].

Ms. Crockerham has pointed to no cases which require a hospital, rather than the physician performing the procedure, to obtain informed consent from a patient. She argues on appeal that the deposition of Dr. Wheeler, who testified that Woman's Hospital failed to follow the standard of care with regard to the issue of consent is sufficient to create a genuine issue of material fact. We agree with Woman's Hospital that Dr. Wheeler's testimony that there was a joint duty to inform the patient on the part of the treating physician and the hospital does not alter Louisiana's substantive law placing that duty on the physician who performs the procedure. While the court must consider the deposition of Dr. Wheeler, it is not bound to follow the conclusions of law which are contained therein. La. C.C.P. art. 966 (D)(2) ; see Thompson v. Center for Pediatric and Adolescent Medicine, LLC, 2017-1088 (La. App. 1 Cir. 3/15/18), --- So.3d ----, 2018 WL 1324414 ; see also Thompson v. S. Cent. Bell Tel. Co., 411 So.2d 26, 28 (La. 1982).

The testimony of an expert, with the attendant right to express opinions and conclusions, is proper for the purpose of assisting the court only in those fields in which the court lacks sufficient knowledge to enable it to come to a proper conclusion without such assistance. Wilson v. Wilson, 542 So.2d 568, 573 (La. App. 1 Cir. 1989). It is well established that expert witnesses may not provide opinions regarding domestic law, as distinguished from foreign law, on the theory that the court itself is the expert on domestic law. The district court itself is an expert on domestic law, including matters of statutory interpretation. Crowe v. Bio-Medical Application of Louisiana, LLC, 2014-0917 (La. App. 1 Cir. 6/3/16), 208 So.3d 473, 482-83, writ denied , 2017-0502 (La. 5/12/17), 219 So.3d 1106. Accordingly, the opinion of Dr. Wheeler as to the legal duty to obtain informed consent from the patient would not assist the trial court, and thus, we find that the trial court did not err in disregarding this portion of his testimony.

A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties. La. C.C.P. art. 966(E). Therefore, a partial summary judgment should have been granted with respect to the issue of informed consent, dismissing those claims.

There are genuine issues of material fact as to whether Woman's Hospital negligently credentialed Dr. Dickerson to perform the robotic procedure. There are no genuine issues of material fact as to whether Woman's Hospital breached the standard of care in obtaining informed consent. We must reverse the trial court's granting of the summary judgment, in part, and affirm the trial court's granting of summary judgment, in part. Therefore, we amend the judgment of the trial court to be a partial summary judgment.

CONCLUSION

For the above and foregoing reasons, the March 20, 2017 judgment granting summary judgment on behalf of Woman's Hospital Foundation and dismissing the claims of Cherlyn Denise Crockerham is amended to affirm the summary judgment granted as to the claim of informed consent and reversed as to the claim of negligent credentialing. All costs of this appeal are assessed equally against Cherlyn Denise Crockerham and Woman's Hospital Foundation.

SUMMARY JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED, IN PART, AND REVERSED, IN PART.

      The record shows that since the filing of this lawsuit, Ms. Crockerham married and her last name is currently Rainey. We will refer to her in this opinion as Ms. Crockerham, as that is how she is referenced throughout the record.

      See La. R.S. 40:1299.39 et seq. re-designated as La. R.S. 40:1237.1 et seq. and La. R.S. 40:1299.41 et seq. re-designated as La. R.S. 40:1231.1 et seq. by La. H.C.R. No. 84 of the 2015 Regular Session.

      Paragraph 5 of Mr. Abadie's affidavit appears to be incomplete. However, the complete Medical Review Panel opinion and oaths of the panelists were attached to the motion for summary judgment and no objection was made thereto.

      This second notice resetting the motion for summary judgment hearing is not contained in the record.

      Louisiana Code of Civil Procedure Article 966 was amended by Acts 2015, No. 422, and was effective January 1, 2016, so the amendment applies in this case since the motion for summary judgment was filed on November 28, 2016.

      As we find the deposition of Dr. Wheeler raised a genuine issue of material fact in connection with the negligent credentialing claim, precluding summary judgment in connection therewith, we need not address Ms. Crockerham's argument that the Medical Review Panel opinion in and of itself created a genuine issue of material fact.

      The first two allegations against Woman's Hospital contained in the petition pertain to negligent credentialing. The third allegation states that Woman's Hospital "[failed] to advise or warn, or make sure that [Ms.] Crockerham knew that Dr. Dickerson had never used the Robotic Device on a patient before." We believe that this third allegation is encompassed in, and a part of, the fourth allegation, which alleges Woman's Hospital "[failed] to obtain informed consent because he did not disclose that he had never operated, nor seen a laparoscopic hysterectomy using the DaVinci Device, on a live human being prior to the attempted hysterectomy on Ms. Crockerham. Had she been fully informed, she would never have consented to surgery and would not have suffered complicated ureteral injury." Although, Ms. Crockerham makes this allegation against Woman's Hospital, she refers to Dr. Dickerson's failure to obtain informed consent.


source: Caselaw Access Project

license: Public Domain

text:
    Charles Ray WALLACE v. James M. LEBLANC, Secretary, Louisiana Department of Public Safety and Corrections
    2017 CA 1551
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 21, 2018
    Charles Ray Wallace, Winn Correctional Center, Winnfield, Louisiana, In Proper Person
    Jonathan R. Vining, Baton Rouge, Louisiana, Attorney for Appellees, James M. LeBlanc, Secretary, and Louisiana Department of Public Safety and Corrections
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

Appellant, Charles Ray Wallace, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), housed at Winn Correctional Center in Winnfield, Louisiana, appeals a judgment of the district court that affirmed the decision of DPSC and dismissed his petition for judicial review with prejudice. Based on our review of the record, we affirm the district court's judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Wallace filed a petition for judicial review in the Nineteenth Judicial District Court (19th JDC) seeking review of ARP No. WNC-2013-1134 in accordance with the Louisiana Corrections Administrative Remedy Procedure ("CARP"), La. R.S. 15:1171 et seq. Mr. Wallace was arrested on October 21, 1986, the same date he committed the offenses of armed robbery and attempted second-degree murder. He was initially sentenced on February 20, 1987, to hard labor for forty years for armed robbery and thirty years for attempted second-degree murder, to run concurrently. He was released from prison on January 17, 2009, after receiving a dimunition of sentence, commonly known as good time. Mr. Wallace was rearrested on April 25, 2012, for aggravated battery, pled guilty, and was sentenced to seven years. That sentence was to run concurrently with the remaining fourteen years of his previous sentence. Mr. Wallace claims that when he originally was released from prison in 2009, he should not have been required to be under parole supervision. He also claims that he was entitled to earn good time at a rate of sixty days for every thirty days, and therefore, he should have originally been released from custody a decade before he was released on January 17, 2009. Mr. Wallace asserts that his good time was miscalculated and that he is entitled to immediate release.

Mr. Wallace filed his request for administrative relief pursuant to CARP. The request was denied on November 25, 2013. At the first step of the CARP process, Mr. Wallace was told that on January 17, 2009, he was properly released under good time parole supervision in accordance with 1981 La. Acts, No. 762, § 1, effective July 1, 1982, enacting La. R.S. 15:571.5. He was further told that he was not entitled to sixty days of good time for every thirty days just because he had concurrent sentences. Therefore, DPSC determined that Mr. Wallace was correctly placed on good time parole supervision and his good time computation were correctly calculated. At the second step, his request was again denied.

Mr. Wallace filed a petition for judicial review in the district court. The 19th JDC Commissioner (Commissioner) issued a recommendation that the final administrative decision be affirmed to deny relief and that the suit be dismissed with prejudice. In a judgment signed on July 18, 2017, the district court adopted the recommendation of the Commissioner after considering the administrative record, the Commissioner's Report, and the traversal filed by Mr. Wallace. It is from this judgment that Mr. Wallace appeals.

LAW AND DISCUSSION

Louisiana Revised Statute 15:1177(A)(9) sets forth the appropriate standard of review by the district court, which functions as an appellate court when reviewing DPSC's administrative decisions. Judicial review is mandated to be conducted by the trial court without a jury and must be confined to the record. La. R.S. 15:1177(A)(5). Specifically, the court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative findings 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 (6) manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. La. R.S. 15:1177(A)(9) ; Lightfoot v. Stalder, 2000-1120 (La. App. 1st Cir. 6/22/01), 808 So.2d 710, 715-716, writ denied, 2001-2295 (La. 8/30/02), 823 So.2d 957.

On review of the district court's judgment under La. R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. McCoy v. Stalder, 99-1747 (La. App. 1st Cir. 9/22/00), 770 So.2d 447, 450-51.

Mr. Wallace claims on appeal that he should not have been released on January 17, 2009, under parole supervision, and that he should have been credited with sixty days for every thirty days served. As noted by the Commissioner, Mr. Wallace is questioning DPSC's authority to require parole supervision pursuant to La. R.S. 15:571.5. Mr. Wallace asserts that the good time statute applicable to his sentence is 1987 La. Acts, No. 848, § 1, effective January 1, 1988, which added La. R.S. 15:571.14(8) (currently incorporated into La. R.S. 15:571.3 ), and that because it said nothing about release on parole supervision, DPSC was required to release him without supervision in 2009, his good time release date. Act 848 added paragraph (8), which stated:

Only inmates sentenced to the custody of the [DPSC] on or after July 1, 1982, and otherwise eligible for dimunition of sentence, shall be eligible to receive increased dimunition of sentence as provided for herein.

In this matter, the Commissioner noted that Louisiana has been statutorily authorizing good time for decades. See La. R.S. 15:571.3. Prior to 1977, La. R.S. 15:571.4 authorized the DPSC to award up to twenty-five days per month to qualified inmates. Louisiana Revised Statute 15:571.4 was amended by 1977 La. Acts, No. 665, § 1, allowing inmates whose crimes were committed after September 9, 1977, to earn twenty-five days per month, while allowing inmates whose crimes were committed after that date to earn only fifteen days per month. Because there is no constitutional right to earn good time, the legislative changes are presumed valid unless there was no conceivable reasonable basis for the disparity. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979) ; McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).

Louisiana Revised Statute 15:571.5 was originally enacted by 1981 La. Acts, No. 762, § 1, effective July 1, 1982. From its inception, La. R.S. 15:571.5 required that any inmate that was released early because of good time was to be released under supervision, in the "same manner and to the same extent as if released on parole" for the remainder of the full term of his original sentence. (Emphasis added). This form of parole is commonly referred to as "good time parole supervision."

Louisiana Revised Statute 15:571.5, as it read in 1986, stated, in pertinent part:

A. When a prisoner committed to the Department of Public Safety and Corrections is released because of dimunition of sentence pursuant to this Part, he shall be released as if released on parole.
* * *
B. The person released because of diminution of sentence ... shall be supervised in the same manner and to the same extent as if he were released on parole. The supervision shall be for the remainder of the original full term of sentence .... (Emphasis added).

Although the above statute has been amended since 1986, neither the language quoted nor the requirement for parole supervision has been altered. Mr. Wallace committed the armed robbery and attempted second degree murder on October 21, 1986. Good time credits are to be determined by the law in effect at the time of the commission of the offense. Massey v. Louisiana Dep't of Pub. Safety & Corr., 2013-2789 (La. 10/15/14), 149 So.3d 780, 783-86. In 1986, when Mr. Wallace committed the crimes (and currently), La. R.S. 15:571.5 required inmates released on good time credits to be supervised, and if parole was revoked, the inmate was required to serve the balance of his term.

The statute relied upon by Mr. Wallace, La. R.S. 15:571.14 was originally enacted by 1986 La. Acts, No. 299, § 1, effective August 30, 1986, which authorized what is commonly referred to as "double good time." It allowed DPSC to award good time credit for most inmates of thirty days credit for every thirty days served, while other inmates earned fifty days for every thirty days served. This disparate treatment of inmates was the result of different good time laws applicable to different inmates, based on sentencing dates. When Act 848 added subsection (8) to La. R.S. 15:571.14, it applied the double good time law retroactively to all inmates sentenced after July 1, 1982, which included Mr. Wallace. See Cox v. Whitley, 612 So.2d 158, 159-60 (La. App. 1st Cir. 1992), writ denied, 613 So.2d 1001 (La. 1993).

We find nothing contradictory or ambiguous in Act 848 (double good time retroactivity) and Act 762 (requiring parole supervision for inmates released on good time parole). The jurisprudence is clear that an inmate does not have a constitutional or inherent right to a conditional release from incarceration prior to the expiration of a valid sentence. Bancroft v. Louisiana Dep't of Corrections, 93-1135 (La. App. 1st Cir. 4/8/94), 635 So.2d 738, 739-40. In discussing double good time provided for in La. R.S. 15:571.14, this court stated:

It is clear ... that the legislature intended for all inmates who were eligible for and who chose to enter the good-time-credit program to be released as if on parole. The phrase "in accordance with R.S. 15:571.5" refers to the parole conditions set forth in that statute. The legislature clearly intended for those parole conditions to apply to all inmates who qualified for diminution of sentence ....

Tauzier v. Cain, 96-1934 (La. App. 1st Cir. 6/20/97), 696 So.2d 650, 651 (emphasis in original).

We previously stated in Menne v. Kennedy, 2011-2255 (La. App. 1st Cir. 6/11/12), 2012 WL 2089515 at *2,

This court has previously upheld the constitutionality of La. R.S. 15:571.5 and has rejected many of the arguments made by [defendant] herein. See Frederick v. Ieyoub, 99-0616 (La. App. 1st Cir. 5/12/00), 762 So.2d 144, writ denied, 2000-1811 (La. 4/12/01), 789 So.2d 581 (rejecting substantive due process and equal protection challenges to La. R.S. 15:571.5 ); State v. Duncan, 98-1730 (La. App. 1st Cir. 6/25/99), 738 So.2d 706, 709-710 (holding that loss of previously earned good time credit does not constitute multiple punishment for the same offense and therefore does not constitute double jeopardy); Tauzier v. Cain, 96-1934 (La. App. 1st Cir. 6/20/97), 696 So.2d 650 (rejecting ex post facto challenge to La. R.S. 15:571.5 ); and Bancroft v. Louisiana Department of Corrections, 93-1135 (La. App. 1st Cir. 4/8/94), 635 So.2d 738, 740 (rejecting arguments of duress, ex post facto violation and breach of contract). Bancroft, held that the granting of conditional release under diminution of sentence was the exercise of a lawful act as provided for in La. R.S. 15:571.5, and therefore cannot constitute duress. Id.

When Mr. Wallace committed his crimes in 1986, 1977 La. Acts, No. 665, § 1, La. R.S. 571.4(C) was in effect and provided for the earning of fifteen days of good time for every thirty days in custody if the act was committed on or after September 9, 1977. On January 1, 1988, Mr. Wallace signed a Good Time Option and Approval Form to receive good time at the rate of thirty days for every thirty days in custody, which made him eligible to receive good time under Act 848.

Act 848 provided double good time to inmates sentenced or resentenced on or after July 1, 1982, with no supervision if the crime was committed before July 1, 1982. Act 848 became effective January 1, 1988, but was to be retroactively applied to all inmates sentenced after July 1, 1982. Mr. Wallace committed his offense on October 21, 1986 and was sentenced on February 20, 1987. Therefore, when he was released under good time parole supervision on January 17, 2009, it was pursuant to Act 848.

When Mr. Wallace's parole was revoked and he returned to the custody of DPSC on May 13, 2013, he returned under 1991 La. Acts, No. 138, § 1, effective January 1, 1992; La. R.S. 15:571.3, which provided the earning of thirty days good time for every thirty days in custody if sentenced or resentenced on or after January 1, 1992. Based on the record, we find no miscalculation on the part of DPSC as to the good time of Mr. Wallace.

Mr. Wallace further claims that his good time was calculated incorrectly and that double good time equals sixty days for every thirty days of incarceration. Neither Act 848 nor Act 138 provides for such a calculation.

CONCLUSION

For the above and foregoing reasons, the July 18, 2017 judgment affirming the decision of the Department of Public Safety and Corrections and dismissing the suit with prejudice is affirmed. All costs of this appeal are assessed against plaintiff, Charles Ray Wallace.

AFFIRMED.

      Although DPSC is not the only named defendant, in accordance with La. R.S. 15:1171, DPSC is the only proper defendant in an administrative appeal filed by a prisoner.

      While incarcerated, Mr. Wallace was charged with obscenity on three separate occasions and was sentenced to additional prison time. Two of the sentences ran concurrently with the sentence he was serving and one ran consecutively.

      An inmate alleging an error in computation of good time credits is required to pursue his claim through CARP. Whitehead v. Rogers, 2013-0657 (La. App. 1st Cir. 12/27/13), 2013 WL 6858297, p. 1 n.1, writ denied, 2014-0227 (La. 10/3/14), 149 So.3d 791.

      The office of Commissioner of the 19th JDC was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The Commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5) ; see Martinez v. Tanner, 2011-0692 (La. App. 1st Cir. 11/9/11), 79 So.3d 1082, 1084 n.3, writ denied, 2011-2732 (La. 7/27/12), 93 So.3d 597.

      1991 La. Acts, No. 138, § 3, effective January 31, 1992, repealed La. R.S. 15:571.14 and the double good time provision was incorporated into La. R.S. 15:571.3, as amended by Act 138.

      Paragraph (8) was redesignated as paragraph (10) on authority of La. R.S. 24:253.

      Those inmates previously eligible to earn fifteen days of good time per month were allowed to earn thirty days, while those that were eligible to earn twenty-five days a month, were allowed to earn fifty days under the double good time statute as La. R.S. 15:571.14(6) allowed the good time earned to be at "twice the rate otherwise provided in this Part."


author: SAUNDERS, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. Kerry Lane MOREAU
    17-721
    Court of Appeal of Louisiana, Third Circuit.
    August 29, 2018
    Jerold Edward Knoll, Laura B. Knoll, The Knoll Law Firm, LLC, P. O. Box 426, Marksville, La 71351, (318) 253-6200, COUNSEL FOR DEFENDANT/APPELLEE: Kerry Lane Moreau
    J. Ryan Vivian, Andrew Gates Barry, Jonathan C. Augustine, Office of the General Counsel, DOTD, P. O. Box 94245, Baton Rouge, LA 70804-9245, (225) 242-4671, COUNSEL FOR PLAINTIFF/APPELLANT: State of Louisiana, Department of Transportation & Development
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion.
   SAUNDERS, Judge.

This is an expropriation case instituted by the State Department of Transportation and Development to acquire a large frontal portion of a citizen's property in order to expand Louisiana Highway 1 from Mansura to Marksville. The State deposited what it felt was just compensation into the registry of the court. The citizen, after a jury trial, was awarded more than the amount deposited by the State. The State appeals the jury's verdict.

FACTUAL AND PROCEDURAL HISTORY:

Defendant, Kerry Lane Moreau ("Moreau") owns 1.653 acres located at 7053 Highway 1 in Avoyelles Parish, Louisiana. After purchasing the property in 1992, he constructed a convenience store with gas pumps. Behind the convenience store, Moreau erected eighty-four to eighty-six mini-storage units to maximize the full use of his property. Moreau has continually operated these businesses since 1992.

In the fall of 2011, pursuant to a plan to expand State Route LA 1, The State of Louisiana, Department of Transportation and Development ("DOTD") proposed to expropriate a portion of Moreau's property totaling 0.183 acres in full ownership and 0.131 acres in temporary servitude. DOTD utilized the services of Michael Allen Graham, Jack Green, Jr., John David Mowad, and Jody Morvant to estimate the just compensation for the partial taking of Moreau's property. Subsequently, DOTD

attempted to negotiate with Moreau for the purchase of Parcels 1-11 and 11-1-C-1 bordering his property.

The negotiations failed because Moreau demanded additional compensation of $805,278.00 for the partial taking because the taking forced elimination of fueling operations from his property, rendering the property unfit for its intended use. This figure included the value of the land and improvements, in part, taken, severance damages to the remainder, cost to cure, and lost earnings. It did not, however, include a claim for relocation costs, nor for damages pursuant thereto.

Consequently, DOTD filed a petition for expropriation seeking judgment declaring the proposed portion of Moreau's property expropriated. In conjunction with the filing of the petition, DOTD deposited $672,268.00 into the registry of the court as an estimate of compensation.

Pursuant to the court's scheduling order and consent judgment, pretrial memoranda, including jury instructions, were submitted by the parties. Moreau also filed an amended pretrial memorandum. Neither of Moreau's submissions included a proposed jury instruction regarding relocation or relocation damages. On the morning of the trial, Moreau submitted a new proposed jury instruction regarding relocation and relocation damages. Over DOTD's objection, the trial court accepted the new instruction.

While the matter was pending, in an effort to mitigate his damages as a result of the taking, Moreau was forced to convert his convenience store into a package liquor store. At trial, Moreau's financial expert, Patrick Lacour, opined that a package liquor store is a much less desirable business and is much less marketable to outside purchasers. Moreover, Moreau's relocation expert, Ronnie Rabalais, opined that the total replacement cost to move Moreau's business and reestablish it at another location, including land value taken from one of DOTD's appraiser's reports, would be $1,097,090.00. This figure was the only figure adduced at trial by any expert regarding the cost of relocation.

When Moreau rested, DOTD moved for a directed verdict pursuant to La.Code Civ. P. art. 1810. The trial court denied this motion.

At the conclusion of the jury trial, the jury returned a unanimous verdict in favor of Moreau in the amount of $972,628.00 as just compensation while leaving the alternative award portion blank. The trial court then sent the jury back into deliberations in order to fill in each blank on the form. The jury then returned a verdict awarding Moreau the alternative award of $1,197,090.00 as relocation damages. The trial court granted Moreau a judgment reflecting the jury's verdict. It is from this judgment that DOTD appeals and presents four issues for review.

ISSUES PRESENTED FOR REVIEW:

1. Whether a claim for relocation damages may be presented to the jury when the claim is not properly plead or asserted.
2. Whether a landowner is entitled to increased just compensation when he fails to meet his burden of proof by failing to present any competent evidence or expert testimony to establish the value of the land taken or severance damages to the land remaining in excess of the amount deposited.
3. Whether the jury abused its discretion when it entered a verdict that is not supported [by] the evidence and is contrary to law.
4. Whether a signed jury verdict form and/or judgment are valid when alternative damages are awarded with no clarity as to which remedy prevails or which is ordered to be paid.

ISSUE PRESENTED FOR REVIEW NUMBER ONE :

In its first issue presented for review, DOTD contends that the trial court erred by allowing Moreau's relocation claim to be presented to the jury when the claim was not properly pled or asserted. We agree.

The trial court has vast discretion in determining whether to exclude or allow evidence, and its decisions will not be overturned in the absence of an abuse of discretion. Trunkline LNG Co., LLC v. Calcasieu Parish School System , 15-1062 (La.App. 3 Cir. 4/13/16), 190 So.3d 457, writ denied , 16-919 (La. 9/6/16), 205 So.3d 919.

In Gutierrez v. Baldridge , 10-1528, p. 5 (La.App. 3 Cir. 5/11/11), 65 So.3d 251, 254 (citations omitted), writ denied , 11-1589 (La. 10/7/11), 71 So.3d 319, citing La.Code Civ.P.art. 1551(emphasis added), this court stated, "[a] court that holds such a conference must render an order memorializing the actions taken at the conference. Id. That order 'controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. "

"In deciding whether to modify a pretrial order, a trial court must be ever mindful of the fact that the objective of our legal system is to render justice between the litigants upon the merits of the controversy rather than to defeat justice upon the basis of technicalities." McDuffie v. ACandS, Inc. , 00-2779, p. 2 (La.App. 4 Cir. 2/14/01), 781 So.2d 628, 631 (citing Naylor v. Louisiana Dept. of Public Highways , 423 So.2d 674 (La.App. 1 Cir.1982), writ denied , 427 So.2d 439 (La.1983), and writ denied , 429 So.2d 127 (La.1983) and writ denied , 429 So.2d 134 (La.1983) ).

In the instant matter, DOTD expropriated a portion of Moreau's property against his will in exchange for what Moreau deemed was insufficient "just compensation," as the taking forced elimination of his fueling stations, which, in turn, displaced his business. On the day of the trial, Moreau asserted a relocation claim, which had not previously been pled.

After agreement between the parties, the trial court modified the pre-trial order by providing in the jury verdict form alternative verdicts: one for just compensation damages for the part taken, or, in the alternative, one for relocation damages, if the jury deemed it appropriate. As such, the trial court found that Moreau had a right to pursue the claim for relocation as an alternative award to just compensation under the typical expropriation laws. However, the trial court refused to allow DOTD's expert rebuttal witness to testify against the relocation claim.

In sum, the defendant was allowed to ambush the plaintiff with an entirely new theory of recovery and allowed to present new evidence in support of that theory, even though this evidence had not been approved in the pretrial order, and the trial court prohibited the entrance of new evidence in opposition to that theory.

Given the above, we find that the trial court abused its discretion to modify the pretrial order to provide for an alternative award for relocation damages. In addition, we find an abuse of discretion in allowing Moreau's expert to testify in support thereof, but not allowing DOTD's expert to rebut that testimony. Accordingly, we find merit in this issue presented for review, and we reverse the trial court's modification of the pretrial order and the jury's award of relocation damages.

This finding renders moot several errors alleged by DOTD.

ISSUE PRESENTED FOR REVIEW NUMBER TWO:

In its second issue, DOTD contends that Moreau failed to meet his burden of proof that he is entitled to increased just compensation by failing to present any competent evidence or expert testimony to establish the value of the land taken or severance damages to the land remaining in excess of the amount deposited. As such, DOTD alleges that the trial court erred in denial of its motion for directed verdict on this issue. We disagree.

A trial court has much discretion in determining whether[ ] to grant a motion for directed verdict. A motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant's opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. However, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury.
On appeal, the standard of review for directed verdicts is whether, viewing the evidence submitted, the appellate court concludes that reasonable people could not reach a contrary verdict. Furthermore, the propriety of a directed verdict must be evaluated in light of the substantive law underpinning the plaintiff's claims.

Hebert v. BellSouth Telecommunications, Inc. , 01-223, pp. 4-5 (La.App. 3 Cir. 6/6/01), 787 So.2d 614, 617, writ denied , 01-1943 (La. 10/26/01), 799 So.2d 1145(quoting Busby v. St. Paul Insurance Co. , 95-2128, pp. 16-17 (La.App. 1 Cir. 5/10/96), 673 So.2d 320, 331, writ denied , 96-1519 (La. 9/20/96), 679 So.2d 443 ) (citations omitted).

The owner of expropriated property must prove by a preponderance of evidence a business loss due to the expropriation to be compensated for the loss. Additionally, the fact finder's determination as to the amount of business loss due to an expropriation is a factual determination subject to the manifest error standard of review.

State, Dep't. of Transp. & Dev. v. G & B Oil Products, Inc. , 99-1248, p. 3 (La.App. 3 Cir. 6/21/00), 762 So.2d 1123, 1125 (citations omitted).

The weight to be given to expert testimony is determined by the trier of fact based on the professional qualifications and experience of the expert, the facts and studies upon which his opinion is based, his familiarity with the locality of the property involved, and the possible bias of the witness in favor of the side for whom he testifies. Where the experts disagree as to the value of the land taken, the trial court has much discretion in evaluating and determining the weight to be given to each expert. However, the court's prerogative to weigh varying expert testimony and to reach a value that does not coincide with the testimony of any expert witness may be exercised only when there is evidence in the record to reasonably support the court's valuation.

W. Jefferson Levee Dist. v. Coast Quality Constr. Corp. , 93-1718 (La. 5/23/94), 640 So.2d 1258, 1277 (citations omitted).

In making its unanimous determination that DOTD essentially fell short of justly compensating Moreau by $300,000.00, the jury considered the following:

(1) Several different appraisal reports submitted by DOTD with vastly divergent "just compensation" amounts;
(2) A snapshot of the coercive measures practiced by the DOTD in the early negotiation stages before litigation commenced wherein DOTD offered Moreau $790,000.00 as a "take it" or "leave it" measure of just compensation;
(3) DOTD's partial taking completely uprooted Moreau's business, took his fuel pumps, and diminished his livelihood and business endeavor that he had worked for almost [forty] years to attain.

In making its determination that Moreau was entitled to an award of $972,268.00, the jury considered the testimony of Moreau's expert, Ronnie Rabalais, who testified that DOTD's proposed reconstruction plan to reestablish fueling operations on the property would not be approved due to the Marksville Airport Zoning Ordinance, and that Moreau would, therefore, never be able to reestablish fueling operations on the property to the extent he enjoyed prior to the taking. Thus, according to Rabalais, just compensation amounted to a figure over 1.1 million dollars. Contrarily, DOTD submitted expert opinions asserting that the figure deposited by the DOTD was just compensation.

Given the directives above, we find that the amount the jury awarded for the value of the land taken, $300,000.00, the amount of severance damages, $200,000.00, and the amount of business and/or economic losses, $472,268.00, is reasonably supported by the evidence in the record. Thus, DOTD's motion for directed verdict was properly denied. Moreover, it was left to the jury to give effect to the experts' testimonies. It chose to award an amount between the amounts suggested by conflicting expert testimony. There is no manifest error in doing so given the status of the record. Accordingly, we find no merit to this issue presented.

ISSUE PRESENTED FOR REVIEW NUMBER THREE:

In its third issue presented for review, DOTD contends that the jury abused its discretion when it entered a verdict that is not supported by the evidence and is contrary to law. DOTD presented this issue to the trial court in the context of a motion for judgment notwithstanding the verdict, or, in the alternative, motion for new trial. We disagree.

A motion for JNOV should be denied if there is evidence opposed to the motion of such quality and weight that reasonable persons in the exercise of impartial judgment might reach different conclusions. In making this determination, all reasonable inferences or factual questions should be resolved in favor of the non-moving party. The rigorous standard for granting a motion for JNOV is based on the principle that "[w]hen there is a jury, the jury is the trier of fact." A motion for JNOV should be granted only when the evidence points so strongly in favor of the moving party such that reasonable men could not reach different conclusions.

Guillory v. Progressive Ins. Co. , 12-1284, pps. 10-11 (La.App. 3 Cir. 7/3/13), 117 So.3d 318, 326 (citations omitted).

In Perkins v. Guidry , 15-1177, p.3 (La.App. 3 Cir. 5/4/16), 191 So.3d 1182, 1186 (citations omitted), this court noted:

An appellate court, in reviewing a [factfinder's] factual conclusions, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court's finding. The court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. The issue to be resolved on review is not whether the jury was right or wrong, but whether the [factfinder's][ ][ ] conclusion was a reasonable one.

Louisiana Constitution Article I, § 4 (B)(1) permits the State to "expropriate" or take property owned by private citizens for a public purpose, but only if just compensation is paid to the owner to the full extent of his loss, including any business or economic loss sustained by the property owner. Louisiana Constitution Article I § 4 (B)(5) also provides that upon such a taking, the property owner has the right to have a jury determine compensation for the "fair market value" of the property taken. Fair market value is defined as "the price for which the property could be sold by a willing and informed seller to a willing and informed buyer in the condition in which it stood, as well as under the usual circumstances existing at the time of expropriation." La.R.S. 47:2321.

When the State takes only part of the property, the measure of damages to the owner's remaining property is based upon the value immediately before and after the taking. La.R.S. 48:453. Severance damages are awarded to compensate a property owner for a proven decrease in the value of that part of his property which remains after a taking. State DOTD v. Unverzagt , 590 So.2d 680 (La.App. 3 Cir.1991).

As stated in ISSUE PRESENTED FOR REVIEW NUMBER TWO, Moreau presented evidence that indicated an increase in just compensation was warranted. The record includes the testimony of expert witnesses, Ronnie Rabalais and Jack Green, as to the value of the part taken, severance damages to the remainder, and economic loss. Rabalais testified that DOTD's proposed reconstruction plan would not be approved due to the Marksville Municipal Airport Zoning Ordinance. Therefore, Moreau would never be able to reestablish fueling operations on the property to the extent he enjoyed prior to the taking.

Further, DOTD's own cost expert, Jack Green, stated:

Q. [Y]ou said specifically after acquisition the convenient store will no longer be able to sale [sic] gas[,] the intended use of the structure[. Y]ou knew at that time[,] sir[,] the intended use of that structure was a c-store with gas outlet, correct?
A. Correct.
Q. Okay, and it was your firm opinion in 2011 that after acquisition, this convenient store would no longer be able to [sell] gas, correct?
A. Yes[,] sir.
Q. ... at that time when you were looking at it one of the things you said look, since we can't have a convenient store with gas, my proposal to you sir is sir, Mr. Moreau is I think you ought to go ahead and take the building itself and convert that into a climate controlled storage building, is that correct?
A. That was the suggestion.

This testimony from DOTD's expert can reasonably be found to establish that the partial taking completely eliminated the intended use of the property, a convenience store selling gasoline.

At the conclusion of the trial, the jury was instructed to consider each expert opinion received into evidence, and to give it such weight as they thought it deserved. Further, the jury was instructed that they were not bound by an expert's opinion and that they were to weigh the testimony of an expert in the same manner as they would the testimony of any other witness. The jury was also instructed that they could disregard an expert's opinion should they decide that it was not based on sufficient education, experience, or fact, and that they may disregard an expert's opinion entirely should they conclude that the reasons given in support of the opinion were not sound, or if they felt that it was outweighed by other evidence. These are all proper jury instructions.

However, after a thorough review of the record, we find that the jury was properly instructed, the record supports a finding that the partial taking completely eliminated the intended use of the property, and the trial court properly denied DOTD's JNOV and motion for new trial. The jury was presented with sufficient evidence to support a verdict in favor of Moreau for $972,268.00. Accordingly, we find no merit to this issue presented for review.

ISSUE PRESENTED FOR REVIEW NUMBER FOUR:

In its fourth issue presented for review, DOTD contends that the signed jury verdict and/or judgment are invalid when alternative damages are awarded with no clarity as to which remedy prevails or which is ordered to be paid. We disagree.

"The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal." La.Code Civ.P.art. 2164. The judgment rendered clearly indicates that the jury found $672,628.00 insufficient to justly compensate Moreau. We reversed the alternative award rendered by the jury after improperly being presented a relocation claim. Thus, after this opinion is rendered, DOTD is left with no possibility of confusion as to the result of this case. The proper judgment rendered by the jury found that Moreau proved entitlement to just compensation in the amount of $972,628.00. Further, the jury verdict form issue was rendered moot by our previous determinations that the claim for relocation damages was not properly before the jury, and the just compensation issue was rendered moot by our prior discussion thereon.

CONCLUSION:

The State through the Department of Transportation and Development presents four issues for review. We find merit to one of the issues raised and reverse the jury's award of relocation damages in the amount of $1,197,090.00 to Kerry Lane Moreau. We assess all costs of these proceedings to the Department of Transportation and Development in the amount of $34,217.63.

REVERSED, IN PART; AFFIRMED, IN PART.


author: Judge Paula A. Brown

text:
    Roberto LLOPIS, D.D.S. v. LOUISIANA STATE BOARD OF DENTISTRY, et al.
    NO. 2017-CA-0934
    Court of Appeal of Louisiana, Fourth Circuit.
    August 29, 2018
    Bobbie C. Smith, Anna M. Jackson, 4640 Carrollton Avenue, Suite 200-A, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Gregory C. Fahrenholt, Special Assistant Attorney General, BURGLASS & TANKERSLEY, LLC, 5213 Airline Drive, Metairie, LA 70001, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Paula A. Brown )
   Judge Paula A. Brown

Plaintiff, Roberto Llopis, D.D.S. ("Dr. Llopis"), appeals the district court's August 1, 2017 judgment, which granted the exception of no cause of action filed by defendants, the State of Louisiana/Department of Health and Hospitals/Louisiana State Board of Dentistry, the Louisiana State Board of Dentistry, C. Barry Ogden, Brian M. Begue, and Dr. David Melancon (collectively, the "Board"). For the reasons that follow, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying dispute in this matter arises from Dr. Llopis' attempts to renew his license to practice dentistry in Louisiana. Dr. Llopis obtained his Louisiana license in 1993. In 2003, the Board began an investigation of Dr. Llopis. The investigation was not completed because Dr. Llopis was called to active military duty. Dr. Llopis, after moving to the state of Washington, voluntarily surrendered his Louisiana license on November 15, 2006. In October 2010, Dr. Llopis began his efforts to become re-licensed in Louisiana. He first sought a restricted license to work at the Louisiana State University School of Dentistry ("LSUSD"); and thereafter, he applied for a temporary license. After the Board failed to re-issue his license, litigation ensued between the parties.

This matter has been before this Court on three prior occasions. To encapsulate the extensive history behind this litigation, we adopt many of the facts delineated in Llopis v. State , 2016-0041 (La. App. 4 Cir. 12/14/16), 206 So.3d 1066 (" Llopis III ") as follows.

Dr. Llopis's first appeal concerned claims against the Board, its executive director, its president and its counsel arising under the Louisiana Open Meetings Law and claims for judicial review of certain decisions of the Board. Those claims were dismissed by the trial court on exceptions of no cause of action. The trial court's judgment was affirmed by this Court. See Llopis I .[ ]
Dr. Llopis then filed a first amended petition on January 25, 2012 against the same parties and adding other members of the Board. This suit sought "damages allegedly suffered by Dr. Llopis when he applied for a restricted license with the Board in 2010, after having voluntarily surrendered his license to practice dentistry in Louisiana in 2006." Llopis v. Louisiana State Bd. of Dentistry , [20] 13-0659, pp. 1-2 (La. App. 4 Cir. 6/11/14), 143 So.3d 1211, 1212, writ denied , [20]14-1483 (La. 10/31/14), 152 So.3d 152 (" Llopis II "). The suit was thereafter dismissed on a motion for involuntary dismissal and an exception of insufficiency of service of process. This Court reversed the judgment and remanded the case to the trial court. See Llopis II .
Following remand, the defendants filed Peremptory Exceptions of Res Judicata and No Cause of Action and a Declinatory Exception of Improper Service of Actions. A hearing was held on June 4, 2015 and by judgment dated June 26, 2015, the exceptions were denied.
On July 10, 2015, the defendants filed a Motion for New Trial of the exceptions heard on June 4, 2015. The grounds asserted in the motion were that "the judgment rendered is clearly contrary to the law" and that "good ground" under La. C.C.P. Art. 1973 existed due to the fact that Dr. Llopis did not file an opposition memorandum until one day prior to the hearing (and defendants did not receive a copy of it until the hearing date). The motion was heard on August 7, 2015 and by judgment dated September 2, 2015, the trial court granted the Motion for New Trial, reversing its prior ruling and thereby sustaining the exception of no cause of action and dismissing all of Dr. Llopis' claims.
Dr. Llopis filed a Motion for Appeal on September 21, 2015.

Id. , 2016-0041, pp. 2-3, 206 So.3d at 1068.

In Llopis III , this Court noted that the district court's initial denial of the Board's exception of no cause of action was an interlocutory judgment; as such, the district court erred in granting the motion for new trial because no procedure exists for a party to apply for a new trial to seek relief from an interlocutory judgment. Id. 2016-0041, p. 6, 206 So.3d at 1070. Accordingly, the Llopis III Court vacated the judgment granting the exception of no cause of action and remanded the matter to the district court for further proceedings. Id.

Upon remand, the Board re-urged its exception of no cause of action (the "Exception"), arguing that its adjudicatory role as an administrative public agency provides it with quasi-judicial immunity. The district court heard argument on the Exception on July 13, 2017. After argument, the district court sustained the Exception and dismissed Dr. Llopis' action against the Board with prejudice.

This appeal followed.

DISCUSSION

Dr. Llopis asserts the district court erred by permitting the Board to re-urge its previously denied Exception without presenting any new evidence in support.

Dr. Llopis does acknowledge that, pursuant to La. C.C.P. art. 928 and well-settled jurisprudence, a district court is permitted to reconsider a peremptory exception "at any stage of the proceedings in which an objection was made, to set aside a decree and to sustain the exception, upon finding that it erred in overruling it." R. G. Claitor's Realty v. Juban , 391 So.2d 394, 396 (La. 1980) (citations omitted); see also Loughlin v. United Services Automobile Association , 2017-0109, p. 15 (La. App. 4 Cir. 12/20/17), 233 So.3d 132, 142. Even so, Dr. Llopis, citing Lomont v. Meyer-Bennett , 2016-436, p. 10 (La. App. 5 Cir. 12/14/16), 210 So.3d 435, 444, contends that the "law of the case" doctrine limits the right to re-urge a peremptory exception to those circumstances where the litigant presents new, persuasive evidence. He, therefore, maintains that because the Board did not present any new evidence, the district court should not have heard its re-urged Exception. We disagree.

In Lomont , the appellate court did not mandate that a litigant offer new evidence, but rather, the court opined that a district court should find that a "compelling justification" exists to re-litigate a peremptory exception. Lomont , 2016-0436, p. 10, 210 So.3d at 444. Further, the application of the "law of the case" doctrine is discretionary; it does not preclude a district court from reconsideration of a judgment overruling a peremptory exception, and subsequent thereto, sustaining the exception. See Landry v. Blaise , 2002-0822, p. 3 (La. App. 4 Cir. 10/23/02), 829 So.2d 661, 664.

In the case sub judice , the district court noted that it initially denied the Board's Exception "out of an abundance of caution" in order to have the opportunity to review Dr. Llopis' late-filed opposition. After review of the Board's Motion for New Trial, the Board's re-urged Exception and Dr. Llopis' opposition, the district court granted the Board's Motion for New Trial and sustained the Exception on the merits; thus, acknowledging that it erred when it first denied the Exception. We find the district court's reasons provide compelling justification to reconsider the Exception. Hence, the district court did not abuse its discretion in allowing the Board to re-urge the Exception. See Adam v. Great Lakes Dredge & Dock , 273 So.2d 60, 61-62 (La. App. 4 Cir. 1973). This assignment of error is unpersuasive.

In the alternative, Dr. Llopis argues that the district court erred in finding his Petition failed to state a cause of action. This Court discussed the function of an exception of no cause of action and appellate review of this exception in Meckstroth v. Louisiana Dept. of Transp. & Dev., 2007-0236 (La.App. 4 Cir. 6/27/07), 962 So.2d 490 as follows:

The peremptory exception of no cause of action tests the legal sufficiency of a petition by examining whether, based upon the facts alleged in the pleading, the law affords the plaintiff a remedy. La. Code of Civ. Proc. Art. 927(A)(4) ; Montalvo v. Sondes , [19] 93-2813 (La. 5/23/94), 637 So.2d 127, 131. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action.
La. Code Civ. Proc. Art. 931. The court reviews the petition and accepts all well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is entitled to the relief sought. Everything on Wheels Subaru, Inc. v. Subaru South, Inc. , 616 So.2d 1234, 1235-36 (La. 1993) ; Kuebler v. Martin , 578 So.2d 113 (La. 1991) ; Hero Lands Co. v. Texaco, Inc. , 310 So.2d 93 (La. 1975). Because Louisiana is a fact-pleading jurisdiction, mere legal conclusions, unsupported by facts, are not sufficient to set forth a cause of action. State ex rel. Ieyoub v. Racetrac Petroleum, Inc. , [20] 01-0458 (La. App. 3 Cir. 6/20/01), 790 So.2d 673, 678. The reviewing court should conduct a de novo review because the exception raises a question of law and the trial court's decision is based solely on the sufficiency of the petition. Fink v. Bryant , [20] 01-0987, p. 4 (La. 11/28/01), 801 So.2d 346, 349 ; Wright v. Louisiana Power & Light , [20] 06-1181, p. 8 (La. 3/9/07), 951 So.2d 1058, 1069.

The Board urges that Dr. Llopis asserted no cause of action against it because the Board has quasi-judicial absolute immunity; and pursuant to Durousseau v. Louisiana State Racing Commission , 1998-0442, (La. App. 4 Cir. 12/9/98), 724 So.2d 844, the Exception was properly sustained. In Durousseau , this Court considered whether a jockey asserted a cause of action against the Louisiana State Racing Commission ("LSRC") for alleged intentional wrongful refusal to reinstate the jockey's license. The Court reasoned that the LSRC functions analogously to a court when it adjudicates matters such as licensing. Durousseau , 1998-0442, 724 So.2d at 846. The Court explained that "[a]s to a judge of a court, it is well-settled that the judge has an absolute immunity from liability when the judge performs a function that is integral to the judicial process." Id. In comparing administrative adjudication hearings to the judicial process, the Court found the LSRC had quasi-judicial absolute immunity for actions taken in its adjudicatory role regarding the denial of the jockey's license; and accordingly, affirmed the district court's grant of the LRSC's exception of no cause of action. Id. at 847. The Board argues we should reach a similar result in the present matter.

Dr. Llopis, however, contends any immunity to which the Board is entitled is discretionary immunity accorded by La. R.S. 9:2798.1. Dr. Llopis argues that La. R.S. 9:2798.1(C)(2) specifically affords no immunity protection for these alleged malicious acts. Moreover, he argues that, on its face, his Petition states a cause of action based on allegations that the Board violated confidentiality procedures by discussing his application with Dr. Ehrlich from LSUSD. Dr. Llopis emphasizes that the facts alleged in paragraphs 8-11 of his Petition -which generally convey that the Board improperly relayed "the impression" to LSUSD that Dr. Llopis would not be licensed "any time soon"-are malicious acts.

Based on the facts of this case, both immunity defenses offer equivalent qualifiers to their application: La. R.S. 9:2798.1(B) affords immunity for acts within the course and scope of the public entity's lawful duties and Subsection (C) excludes immunity protection for malicious misconduct. A malicious act has been defined as "[a]n intentional, wrongful act done willfully or intentionally against another without legal justification or excuse."

In determining whether acts are criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or show flagrant misconduct for purposes of applying immunity, our courts have found that:

"only the most egregious conduct... that exhibits an active desire to cause harm, or a callous indifference to the risk of potential harm from flagrantly bad conduct, will rise to the level of 'willful misconduct' or 'criminal, willful, outrageous, reckless or flagrant misconduct' resulting in a forfeiture of all the immunity protections" under La. R.S. 9:2789.1(C)(2)."

Haab v. E. Bank Consol. Special Serv. Fire Prot. Dist. , 2013-954 (La. App 5 Cir. 5/28/14), 139 So.3d 1174, 1182. Thus, while a judge has absolute immunity when she performs judicial acts, that immunity does not extend to actions taken outside of judicial capacity and based on malice or corruption. See Alexander v. La. State Board of Private Investigator Examiners , 2015-0537 (La. App. 4 Cir. 2/17/17), 211 So.3d 544, 574 n. 25 (citations omitted).

Disputes regarding whether actions amount to willful or malicious misconduct present questions of law-which are subject to de novo review. See Haab , 2013-954, p. 9, 139 So.3d 1174, 1181. Applying these precepts, we conduct our de novo review by examining Dr. Llopis' Petition from its four corners to determine if the Petition states a cause of action for malicious acts not subject to the defense of immunity.

Upon review, the Petition fails to identify the Board representative who allegedly disclosed information to LSUSD; the Petition fails to state which party initiated contact or the reason for the contact; and the Petition fails to detail any actual conversation between the Board and LSUSD for purposes of determining the propriety of any interaction. Moreover, although Dr. Llopis argues on appeal that the Board acted with malice because the Board falsely communicated his license would not be renewed , the Petition itself alleges that the Board had given his potential employer "the impression" that he was not going to be licensed any time soon .

As noted, supra , Louisiana has a system of fact pleading and mere conclusions unsupported by facts do not state a cause of action. See also Ramey v. DeCaire , 2003-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 118. In the absence of facts pled that the Board purposefully violated any established procedures or time guidelines for license renewals, the Petition's mere allegation that the Board allegedly relayed the impression of a time frame for Dr. Llopis' license renewal does not rise to the level of malice.

In the case sub judice , it is undisputed that the Board was vested with the requisite adjudicatory authority to decide whether or not to re-issue Dr. Llopis' license. Based upon our de novo review, we find the Petition does not state and is devoid of any facts that show the Board acted outside its authority or engaged in egregious, malicious misconduct which would require the Board to forfeit its immunity. The purpose of the immunity defense would be effectively eviscerated if courts allowed plaintiffs to maintain a cause of action by merely stating broadly worded, conclusory allegations. See Lambert v. Riverboat Gaming Enforcement Division , 1998-1856, p. 6 (La. App. 1 Cir. 12/29/97), 706 So.2d 172, 176.

This assignment of error is unpersuasive.

CONCLUSION

The Exception was ripe for review when it was re-urged by the Board. Based upon our de novo review, the district court properly granted the Exception and dismissed Dr. Llopis' Petition.

For the foregoing reasons, we affirm the judgment.

AFFIRMED

      Dr. Llopis represents in his appellate brief that his license was eventually renewed in December 2011.

      Llopis v. State Bd. of Dentistry , 2012-1286 (La. App. 4 Cir. 9/12/13), 121 So.3d 1280.

      La. C.C. P. art. 928(B) provides "[t]he peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both."

      "The law of the case doctrine embodies the rule that an appellate court will not reconsider its own ruling of law in the same case." Lomont , 2016-436, p. 10, 210 So.3d at 444 (citation omitted).

      "Quasi-judicial" is defined by BLACK'S LAW DICTIONARY, 1440 (10th ed. 2014), as: "[o]f, relating to, or involving an executive or administrative official's adjudicative acts."

      La. R.S. 9:2798.1 shields public entities from liability for their employees' discretionary or policy-making acts. See Hardy v. Bowie, 1998-2821, p. 10 (La. 9/8/99), 744 So.2d 606, 613. The statute provides in pertinent part:
      A. As used in this Section, "public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
      B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
      C. The provisions of Subsection B of this Section are not applicable:
      (1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
      (2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

      Dr. Llopis cites paragraphs 8-11 of his Petition, which allege in pertinent part:
      8.
      On November 1, 2010, without any prior notice from the Board, Dr. Llopis received an email from Dr. A. Dale Ehrlich, in the Department of Comprehensive Dentistry & Biomaterials at LSU School of Dentistry, indicating that he (Dr. Ehrlich) had been given "the impression from the State Board that you [i.e. Dr. Llopis] were not going to be licensed any time soon.
      9.
      The Board had discussed this confidential application with Dr. Ehrlich in violation of the rules governing the application process.
      10.
      As a result of the communication with the Board, Dr. Ehrlich advised Dr. Llopis, ["]If you cannot get a license, you cannot work for LSUSD." (Email dated November 1, 2010 from Dr. A. Ehrlich, MS, DDS, Chairman, Dept. of Comprehensive Dentistry & Biomaterials, LSU School of Dentistry). After being passed over for the position at LSU Dental School because he was unable to get his Application for Restricted License approved, Dr. Llopis then withdrew his Application for Restricted License and subsequently filed an Application for Licensure by Credentials (from Washington State) with the Board.
      11.
      It is clear on the face of the e-mail from Dr. A. Dale Ehrlich, in the Department of Comprehensive Dentistry & Biomaterials at LSU School of Dentistry, indicating that he (Dr. Ehrlich) had been given "the impression from the State Board that you [i.e. Dr. Llopis] were not going to be licensed any time soon", that the Board violated its own Rules concerning confidential and privileged information by even alluding to confidential and privileged information to any unauthorized recipient(s) of such information, as clearly Dr. Ehrlich was in this case.

      BLACK'S LAW DICTIONARY, 1101 (10th ed. 2014).

      Based on the facts claimed in Dr. Llopis' appellate brief, indeed, his license was not renewed "any time soon." The Petition indicates that the Board had contact with LSUSD sometime between October 2010 and November 1, 2010. Dr. Llopis states in his brief that he received his license renewal in December 2011. This representation seemingly contradicts any claim that the Board relayed a false impression as to when the license might be renewed.


author: Judge Joy Cossich Lobrano

text:
    Norris "Mickey" DEARMON, Shawn Rivers, John Roper, II, Shawn White and David Bexlay v. ST. ANN LODGING, L.L.C., d/b/a Bourbon Orleans Hotel and QBE North America Insurance Group
    NO. 2018-CA-0377
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 7, 2018
    Rene Paul Frederick, Jeanne M. Mauldin, RENE FREDERICK & ASSOCIATES, LLC, 112 N. Jefferson Avenue, Covington, LA 70433, Jacques F. Bezou, Jacques F. Bezou, Jr., Erica A. Hyla, BEZOU LAW FIRM, 534 E. Boston Street, Covington, LA 70433, COUNSEL FOR PLAINTIFF/APPELLANT
    James A. Prather, Mark E. Seamster, GALLOWAY JOHNSON TOMPKINS BURR & SMITH, APLC, # 3 Sanctuary Boulevard, Third Floor, Mandeville, LA 70471, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods)
   Judge Joy Cossich Lobrano

In this tort litigation, plaintiffs/appellants, Norris "Mickey" Dearmon, Shawn Rivers, John Roper, II, Shawn White, and David Bexlay (collectively "plaintiffs"), appeal the December 5, 2017 judgment of the district court, which granted summary judgment in favor of defendants/appellees, St. Ann Lodging, LLC d/b/a Bourbon Orleans Hotel and QBE North America Insurance Group (collectively the "hotel"). For the reasons that follow, we find that the judgment lacks the required decretal language, and is not a final appealable judgment. Accordingly, we dismiss the appeal without prejudice and remand this matter to the district court.

On November 20, 2014, plaintiffs filed a petition for damages against the hotel. Plaintiffs alleged that, on November 21, 2013, they were guests of the hotel when they were beaten and robbed in their hotel room by unknown individuals. In their petition, plaintiffs contended that the hotel was negligent in failing to provide plaintiffs with adequate security. On October 31, 2016, the hotel filed a motion for summary judgment arguing that the plaintiffs had no admissible evidence to establish that the hotel breached a duty of care owed to the plaintiffs or that the incident of November 21, 2013 was reasonably foreseeable. Following a hearing on January 6, 2017, the district court took the motion for summary judgment under advisement and permitted the parties to submit post-hearing memoranda.

On December 5, 2017, the district court rendered judgment granting the hotel's motion for summary judgment. This appeal followed.

At the outset, we must first consider whether we have jurisdiction to review this appeal. As this Court explained in Moulton v. Stewart Enterprises, Inc. , 2017-0243, pp. 3-7 (La. App. 4 Cir. 8/3/17), 226 So.3d 569, 571-73 :

An appellate court cannot determine the merits of an appeal unless its subject matter jurisdiction is properly invoked by a valid final judgment.
Freeman v. Phillips 66 Co. , 16-0247, p. 2 (La. App. 4 Cir. 12/21/16), 208 So.3d 437, 440 (citing Tsegaye v. City of New Orleans , 15-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710, writ denied , 16-0119 (La. 3/4/16), 188 So.3d 1064 ); see La. C.C.P. art. 2083(A)....
* * *
In addition to requiring that a judgment be precise, definite, and certain, the jurisprudence has required that a valid final judgment be self-contained; stated otherwise, "[o]ne must be able to determine from the judgment itself-without any reference to an extrinsic source-the specific relief granted." Baker Ready Mix, LLC v. Crown Roofing Servs., Inc. , 15-0565, p. 2, n. 1 (La. App. 4 Cir. 12/16/15), 183 So.3d 622, 623 (citing Bd. of Supervisors of La. State Univ. and Agric. and Mech. Coll. v. Mid City Holdings, L.L.C. , 14-0506, p. 3 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910 ). "The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment." Input/Output Marine [Sys., Inc. v. Wilson Greatbatch, Techs., Inc. , 10-477, p. 13 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 916 ]....
Another requirement that the jurisprudence has imposed is that a valid final judgment contain decretal language. " 'Decretal language is defined as the portion of a court's judgment or order that officially states ('decrees') what the court is ordering and generally starts with the formula 'It is hereby ordered, adjudged, and decreed that ....' "
Freeman , 16-0247 at p. 2, 208 So.3d at 440 (quoting Jones v. Stewart , 16-0329, p. 5 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 387 ). To comply with the decretal language requirement, a judgment must contain the following three elements: (i) it "must name the party in favor of whom the ruling is ordered"; (ii) it must name "the party against whom the ruling is ordered"; and (iii) it must state "the relief that is granted or denied." Baker Ready Mix , 15-0565, at p. 2, n. 1, 183 So.3d at 623 ; Input/Output , 10-477 at p. 13, 52 So.3d at 916....
* * *
The jurisprudence has held that "[a] judgment that simply states that a defendant's motion for summary judgment is granted, is defective and cannot be considered a final judgment." Eldon E. Fallon, LA. PRAC. TRIAL HANDBOOK FOR LA. LAWYERS § 34:1 (3d ed. 2017) (citing Contreras v. Vesper , 16-318, p. 3 (La. App. 5 Cir. 10/19/16), 202 So.3d 1186, 1188-89 ); Gaten v. Tangipahoa Parish School System , 11-1133, pp. 3-4 (La. App. 1 Cir. 3/23/12), 91 So.3d 1073, 1074 (finding that a judgment which simply states that a "Motion for Summary Judgment is Granted," without decretal language disposing of or dismissing the claims, is defective and cannot be considered as a "final judgment"); In re Med. Review Panel of Williams v. EMSA Louisiana, Inc. , 15-1178, p. 2 (La. App. 4 Cir. 10/21/16), 203 So.3d 419, 423 (holding that the judgment providing that "It is ordered, adjudged and decreed that the Motion for Summary Judgment filed herein on behalf of Defendant, PCF is granted" lacked the required decretal language and citing Tomlinson v. Landmark Am. Ins. Co. , 15-0276, p. 2 (La. App. 4 Cir. 3/23/16), 192 So.3d 153, 156 ). As the court in Contreras explained, "one must refer to the motion for summary judgment and assume that the relief granted by the judgment is that prayed for in the motion.... [A] judgment cannot require reference to extrinsic documents or pleadings in order to discern the court's ruling." 16-318 at p. 2, 202 So.3d at 1188....

Here, the district court's December 5, 2017 judgment states, in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that Defendants' Motion for Summary Judgment is hereby GRANTED .

Applying the above principles to this matter, we find that the judgment does not satisfy the requirements for a final appealable judgment. The judgment does not name the party against whom the ruling is ordered and does not specify what relief is granted. Although the judgment states that it grants the motion for summary judgment, it fails to state what claims, if any, are dismissed and whether the dismissal is with prejudice. Instead, the judgment merely states that the motion for summary judgment is granted. The absence of this necessary decretal language means that the judgment is not final and appealable. We, therefore, lack appellate jurisdiction to address the merits of the appeal.

Under certain circumstances, this Court has exercised its discretion to convert " 'appeals' of non-appealable judgments to applications for supervisory writs in those cases in which the motions for appeal were filed within the thirty-day period allowed for the filing of applications for supervisory writs." Favrot v. Favrot , 2010-0986, p. 6 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1104. See also Rule 4-3, Uniform Rules-Courts of Appeal. Here, however, the plaintiffs filed a Notice of Intent and Motion to Fix Time for Filing of Appeal on January 8, 2018, thirty-four (34) days after the district court judgment was rendered.

Thus, "while [a] motion for appeal could be construed to be a notice of intent to seek supervisory writs, it could not be construed as a timely one where it was filed more than thirty days from the court's ruling." Babineaux v. Univ. Med. Ctr. , 2015-292, p. 7 (La. App. 3 Cir. 11/4/15), 177 So.3d 1120, 1125 (citing Rain CII Carbon, LLC v. Turner Indus. Grp., LLC , 2014-121, p. 2 (La. App. 3 Cir. 3/19/14), 161 So.3d 688, 689 and stating that "the motion [for appeal] was filed untimely for a writ application, and if we allowed the conversion, the writ application would be dismissed because of untimeliness").

Because the instant appeal was not filed within thirty days from the date of the district court's judgment, we decline to exercise our discretion to convert the plaintiffs' appeal to a writ application. We therefore dismiss the plaintiffs' appeal without prejudice and remand for further proceedings. Once a final appealable judgment is rendered, the parties may file a new appeal with this Court. See Moulton , 2017-0243, p. 7, 226 So.3d at 573.

For these reasons, the appeal is dismissed without prejudice, and this matter is remanded.

APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED

BELSOME, J., CONCURS WITH REASONS

I concur in the result reached by the majority and acknowledge that it is consistent with the jurisprudence, but write separately to address the punitive nature of this result. Giving such weight to the decretal language in a judgment only serves to create delays and additional expense for litigants that are already in a legal system where litigation is prolonged. This outcome not only impedes the progress of the litigation, but also contradicts the principles of judicial efficiency. I disagree with the effects of dismissing an appeal, but also recognize that we are confined by the law on subject matter jurisdiction, and therefore I concur.