author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Charles MALDONADO v. Leon A. CANNIZZARO, Jr., in his official capacity as District Attorney for Orleans Parish
    NO. 2018-CA-0177
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 10, 2018
    SCOTT L. STERNBERG, MICHAEL FINKLESTEIN, STERNBERG, NACCARI & WHITE, LLC, 643 Magazine Street, Suite 402, New Orleans, Louisiana 70130, COUNSEL FOR PLAINTIFF/APPELLEE
    DAVID M. FINK, THE LAW OFFICE OF BERNARD L. CHARBONNET, JR., A PROFESSIONAL LAW CORPORATION, 365 Canal Street, Suite 1155, New Orleans, Louisiana 70112 and SCOTT G. VINCENT, ASSISTANT DISTRICT ATTORNEY ORLEANS PARISH, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay III, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )
   JAMES F. MCKAY III, CHIEF JUDGE

In this mandamus action, defendant, Leon A. Cannizzaro, Jr., District Attorney for Orleans Parish ("D.A."), appeals the November 22, 2017 judgment ordering the D.A. to turn over certain files to plaintiff, Charles Maldonado ("Mr. Maldonado"), pursuant to his public records requests. Mr. Maldonado answered the appeal seeking a modification of the judgment, alleging that the trial court erred in not ordering production of all open files and in failing to find that the D.A. was arbitrary and capricious. Mr. Maldonado also seeks attorney's fees for work performed on this appeal.

For the reasons that follow, we affirm the trial court's judgment and find no merit in the assignments of error set forth in Mr. Maldonado's answer to the appeal. We remand to the trial court for a determination of Mr. Maldonado's additional attorney's fees.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On April 27, 2017, Mr. Maldonado, a staff writer with The Lens , issued a public records request to the D.A. pursuant to the Louisiana Public Records Law, La. R.S. 44:1, et seq. The request sought "[a]ny and all 'D.A. Subpoenas' delivered to witnesses beginning Jan. 1, 2016 through the date of this request (4/27/17)."

On May 2, 2017, the D.A. responded, in pertinent part, as follows:

In the present case, the request for "D.A. Subpoenas" delivered to witnesses is overly broad, particularly in light of the fact that the request involves a review of literally thousands of closed files, a substantial number of which are stored off-site. Therefore, compliance with your request would require this Office [sic] manually review thousands of files stored on premises and off-site, the retrieval fee for which is $8.10 per file. Given the potential volume of the records that would have to be reviewed in order to respond to your request, the fact that the records cannot [sic] are not readily identifiable and locatable, and the retrieval costs involved, the District Attorney's Office submits that obtaining the records requested by you and preparing them for public review, including redacting and removing privileged information and documentation therefrom and determining whether there is a potential for further criminal litigation, would be unreasonably burdensome. Accordingly, your request is denied at this time.

On May 15, 2017, Mr. Maldonado filed a Petition for Writ of Mandamus against the D.A., seeking to compel production of the requested records. The petition sought attorney's fees and costs pursuant to La. R.S. 44:35(D) and alleged that the D.A. was arbitrary and capricious in failing to respond to the records request.

On May 22, 2017, Mr. Maldonado issued a second records request to the D.A. as follows:

Any and all records related to the use of so-called "DA Subpoenas," including but not limited to log entries, records showing time of service, records of returns, files in a computerized or paper filing system, meeting notes with witnesses who received them, any other case notes reflecting their use, written communications with witnesses who received them, written communications with attorneys for those witnesses, written communications with others regarding "DA subpoenas," and other records maintained by ADAs, clerks, secretaries or by the DA's office regarding their use. Timeframe for this request is January 1, 2016-present (May 22, 2017).

On May 25, 2017, the D.A. responded, in pertinent part, as follows:

The records request fails to describe a specific public record in the Orleans Parish District Attorney's Office's custody or control. The Orleans Parish District Attorney's Office does not maintain a copy of subpoenas in a particular file or location, nor does the District Attorney's Office maintain a list of cases in which a subpoena was issued. Under the Public Records Law, a records custodian is not required to compile a list in order to respond to a public records request. Rather, the custodian need only make the record available in the particular format in which it is maintained. (Citations omitted).

The May 25, 2017 response further reiterated that the records request was overly broad, burdensome, and expensive.

The parties met on May 25, 2017, in an attempt to resolve the matter. The D.A. requested that Mr. Maldonado submit a narrower records request.

Following the meeting, Mr. Maldonado submitted a third records request on May 30, 2017, seeking the following:

Any and all "DA subpoenas" issued to witnesses or other parties as part of the following cases:
State of La. v. Dale Lambert, case number 517-162
State of La. v. Chevroun Smith, case number 514-924
State of La. v. Phillip Gibson, case number 506-743
State of La. v. Karl Peters, case number 491-939
State of La. v. Darryl Griffin, case number 479-359
State of La. v. Durelle Bowens, case number 507-266
State of La. v. Dwayne Diaz, case number 518-162
State of La. v. Jennifer Gaubert, case number 517-669
State of La. v. Nathaniel Payton, case number 486-528
State of La. v. Jerome Gibson, case number 512-137

Mr. Maldonado has acknowledged that the D.A. made six of the requested case files available for viewing.

Also on May 30, 2017, Mr. Maldonado requested all D.A. subpoenas maintained or saved in the personal case notes or computer files of Assistant District Attorneys Jason Napoli, Laura Rodrigue, Inga Petrovich, and Sara Dawkins from December 1, 2016, through May 30, 2017. On June 2, 2017, the D.A. responded, stating that the personal case notes were not subject to a public records request. However, two D.A. subpoenas were turned over in connection with that request.

On June 7, 2017, Mr. Maldonado issued a fourth public records request, asking for "[a]ny and all 'DA subpoenas' maintained or saved in the personal case notes or computer files of all assistant district attorney's." In response, on June, 7, 2017, the D.A. stated:

To the extent your request seeks disclosure of the personal case notes of assistant district attorneys, personal case notes are excepted from public view under La. R.S. 44:4(C).
To the extent the request seeks disclosure of "DA subpoenas" maintained or saved in the computer files of all assistant district attorneys, the request fails to describe a specific public record in the Orleans Parish District Attorney's Office's custody and control. The Orleans Parish District Attorney's Office does not maintain a copy of subpoenas in a particular computer file or location, nor does the District Attorney's Office maintain a list of cases in which a subpoena was issued.
Further, under the Public Records Law, a public official is relieved of the obligation to make a public record available for inspection when doing so would be unreasonably burdensome or expensive. (Citations omitted).

On July 25, 2017, Mr. Maldonado filed a First Amended and Restated Petition for Injunctive and Declaratory Relief. Mr. Maldonado states therein that the D.A. failed to properly respond to the four separate records requests. The amended petition seeks compliance with the requests and a declaration that the D.A. subpoenas are not subject to exception.

The matter was tried October 23, 2017. Mr. Maldonado testified regarding his public records requests and the limited responses, which he received.

A.D.A.'s Donna Andrieu (Chief or Appeals), and David Pipes (Chief of Trials) testified on behalf of the D.A. Both witnesses explained how the D.A.'s office organized its files and why a search for D.A. subpoenas would be overly burdensome and expensive.

In a judgment rendered November 22, 2017, the trial court ordered the D.A. to produce: (1) all "D.A. subpoenas or D.A. Notices" for files that were screened and charges were rejected, from January 1, 2016, to April 27, 2017, by November 30, 2017; and (2) all "D.A. subpoenas or D.A. Notices" in all closed files from January 1, 2016, to April 27, 2017. The judgment decreed that the D.A. subpoenas contained in any open files are exempt from production. Mr. Maldonado's request for attorney's fees and costs was granted, in an amount to be determined at a later date. The trial court also ruled that the D.A. was not arbitrary and capricious. Finally, the judgment ordered the parties to appear for a status conference on December 13, 2017, to update the Court as to the process of reviewing and producing D.A. subpoenas from the closed or rejected files.

The D.A. filed the present appeal asserting that the trial court erred in partially granting Mr. Maldonado's public records requests, and in granting Mr. Maldonado's request for attorney's fees and costs. Mr. Maldonado has answered the appeal, asserting that the trial court erred in not ordering production of the files in all open cases, and in failing to find that the D.A. was arbitrary and capricious. Additionally, Mr. Maldonado seeks attorney's fees for defending this appeal.

DISCUSSION

Motion to Dismiss Appeal

As a procedural matter, we will first address Mr. Maldonado's Motion to Dismiss Appeal, which was referred to the merits by order of this Court. After consideration, we deny the motion.

Mr. Maldonado seeks to dismiss the appeal arguing that the D.A. acquiesced in the judgment based on actions and public statements. Specifically, Mr. Maldonado points to a November 15, 2017 written statement made by the D.A.'s Public Information Officer, Ken Daley, that the D.A. intended to comply with the judgment when rendered. Mr. Maldonado further relies on the fact that on November 27, 2017, the D.A. produced a single document in compliance with the judgment. Finally, he points to a November 30, 2017 press release, wherein the D.A. reiterated that the judgment would be complied with. Mr. Maldonado asserts that subsequent to the December 2017 status conference, the D.A. chose to reverse its position and file an appeal.

In opposition to the motion to dismiss, the D.A. argues that its production of a single document in response to only one portion of the trial court's judgment does not constitute a complete and total acquiescence. The D.A. further states that the single document offered Mr. Maldonado had been located in connection with a search conducted at the request of the New Orleans City Council. Finally, the D.A. maintains that its attempt to amicably resolve this matter, by offering all documents uncovered in connection with the City Council search, does not constitute acquiescence in the judgment. We agree.

La. C.C.P. art. 2085 provides:

An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.

As this Court explained in Koerner & Lambert, A Professional Law Corp. v. Allstate Ins. Co. , 363 So.2d 546, 547 (La. App. 4th Cir.1978),

Acquiescence in a judgment is never presumed, and the party alleging abandonment must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce and to abandon his right to appeal. Furthermore, appeals are favored in law, and forfeiture of a party's right to an appeal through acquiescence should be decreed only when the party's intention to acquiesce and to abandon his right of appeal is clearly demonstrated. (citations omitted).

On the record before us, Mr. Maldonado has not established that the D.A.'s post-trial actions demonstrate intent to acquiesce in the judgment and to abandon its right to appeal. Moreover, considering the judicial pronouncement that appeals are favored in law, the motion to dismiss the appeal is denied.

Assignment of Error No. 1: Partially Granting the Public Records Request

The D.A. argues that the trial court erred in granting the public records request for D.A. subpoenas contained in the closed and rejected files from January 1, 2016, to April 27, 2017. For the reasons that follow, we find no merit in this assignment of error.

Article XII, Section 3 of the Louisiana Constitution provides that no person shall be denied the right to "examine public documents, except in cases established by law." The Louisiana legislature has codified this right in the Public Records Act, La. R.S. 44:1, et seq. Specifically, La. R.S. 44:31 provides:

A. Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person of the age of majority may inspect, copy, or reproduce any public record.
(2) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record.
(3) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

It is well established that "[a]s with Article XII, Section 3, the Public Records Law should be construed liberally in favor of free and unrestricted access to public documents." Shane v. Parish of Jefferson , 2014-2225, p. 9 (La. 12/8/15), 209 So.3d 726, 735 (citing Landis v. Moreau , 2000-1157, p. 4 (La. 2/21/01), 779 So.2d 691, 695 ). "Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right to see; to allow otherwise would be an improper and arbitrary restriction on the public's constitutional rights". Id. at pp. 9-10, 209 So.3d at 735 (citing In re Matter Under Investigation , 2007-1853, p. 5 (La. 7/1/09), 15 So.3d 972, 989 ).

La. R.S. 44:33 states, in pertinent part:

A. (1) When a request is made for a public record to which the public is entitled, the official ... who has responsibility for the record shall have the record segregated from other records under his custody so that the public can reasonably view the record.
(2) If, however, segregating the record would be unreasonably burdensome or expensive, or if the record requested is maintained in a fashion that makes it readily identifiable and renders further segregation unnecessary, the official shall so state in writing and shall state the location of the requested record.
B. (1) If the public record applied for is immediately available, because of its not being in active use at the time of the application, the public record shall be immediately presented to the authorized person applying for it. If the public record applied for is not immediately available, because of its being in active use at the time of the application, the custodian shall promptly certify this in writing to the applicant, and in his certificate shall fix a day and hour within three days, exclusive of Saturdays, Sundays, and legal public holidays, for the exercise of the right granted by this Chapter.

Regarding enforcement of a public records request, La. R.S. 44:35 provides, in pertinent part:

A. Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions of this Chapter, either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in-person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
B. In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may view the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.

In Beckett v. Serpas , 2012-1349, pp. 7-8 (La. App. 4 Cir. 3/20/13), 112 So.3d 348, 353, this Court stated:

It is well established that the examination of records or requests for reproduction cannot be so burdensome as to interfere with the operation of the custodian's constitutional and legal duties. Vandenweghe v. Parish of Jefferson , 11-52, p. 12 (La. App. 5 Cir. 5/24/11), 70 So.3d 51, 58, writ denied, 2011-1333 (La. 9/30/11), 71 So.3d 289 ; Elliott v. District Attorney of Baton Rouge, 94-1804 (La. App. 1 Cir. 9/14/95), 664 So.2d 122, 126. The jurisprudence further recognizes that any restriction or limitation imposed by the custodian places the burden on the custodian to justify the restriction or limitation. Id.

In this case, the D.A. asserts that the exception to the Public Records Law recognized in Beckett should be applied here. Based on the testimony of A.D.A.'s Andrieu and Pipes, the D.A. maintains that the requests would require thousands of man hours and many thousands of dollars in record retrieval and transportation costs. Thus, the D.A. argues that such an undertaking would interfere with the D.A.'s constitutionally mandated duty to prosecute criminal violations.

A.D.A. Andrieu testified before the trial court that the files are arranged by defendant name and case number, and that there is no index that would show whether a D.A. subpoena is contained within a file. Moreover, there is no separate file that contains all D.A. subpoenas issued by the office, and no list of cases in which a D.A. subpoena was issued. Thus, to find a D.A. subpoena, the entire file would have to be manually searched.

A.D.A. Pipes testified that Mr. Maldonado's request included approximately 8,000 to 9,000 cases, which would require about 9,000 man hours to review the files. He explained that first the files would have to be located, as some closed files are stored offsite. Additionally, privileged and personal information contained in the files would have to be redacted before any documents could be turned over. A.D.A. Pipes opined that considering the volume of work, a number of attorneys would have to be pulled from their regular duties and be dedicated full-time to the task. He further explained that because of budget restrictions, A.D.A.'s have no support staff or administrative staff.

We find the facts of the present case to be distinguishable from Beckett . In Beckett , the plaintiff appealed the trial court's judgment, which denied, in part, her request for public records pursuant to a petition for writ of mandamus filed against the City of New Orleans. The request sought, in part, all documents generated as a result of any Public Integrity Bureau investigation conducted within the last ten years of any allegations that any member of the New Orleans Police Department violated three separate rules of the New Orleans Police Department Operations Manual, including, but not limited to, all statements obtained, photographs taken, and reports generated in connection with this investigation. In affirming the trial court's denial of the record's request, we determined that the City demonstrated that segregating ten years of files (that were categorized by the officer's name and not by the specific rule violation) was unreasonably burdensome.

The D.A. argues that the records request in the present case is even more burdensome than in Beckett . Considering that Mr. Maldonado's request involves a much shorter period of time (January 1, 2016 to April 27, 2017), than the ten-year period sought in Beckett , we disagree.

In the reasons provided from the bench, the trial judge acknowledged that the records requests may very well be a burden, but further recognized the responsibility of the D.A., as a public agency, to be accountable for the way it executes its duties. The trial judge concluded that the public records request for D.A. subpoenas contained in closed and rejected files was not overly burdensome, finding that time period requested was not a substantial period of time. We find no error in the trial court's finding.

As the party seeking to prevent disclosure, it is the D.A.'s statutory burden to prove that withholding the public records is justified. See La. R.S. 44:31(3) ; La. R.S. 44:35(B). Based on our comprehensive review of the record, we find that the D.A. did not meet this burden.

Assignment of Error No. 2: Awarding Attorney's Fees and Costs

The November 22, 2017 judgment granted Mr. Maldonado's request for attorney's fees and costs under La. R.S. 44:35(D), in an amount to be determined at a later hearing. We find no error in that ruling.

Regarding the issuance of attorney's fees under the Public Records Law, La. R.S. 44:35(D) provides: "If the person seeking the right to inspect or to receive a copy of the public record prevails in his enforcement suit, the court shall award him reasonable attorney fees and other litigation costs. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof." (emphasis added). As we will discuss separately below, a plaintiff may also be entitled to actual damages and civil penalties when the custodian acted arbitrarily or capriciously pursuant to La. R.S. 44:35E(1).

In this case, because we have decided that Mr. Maldonado had the right to inspect some of the documents requested, he has prevailed in part in his mandamus action. Based on our review of the record before us, we find no abuse of discretion in the trial court's granting of Mr. Maldonado's request for attorney fees under La. R.S. 44:35(D).

Mr. Maldonado's Answer to the Appeal

Mr. Maldonado filed an answer to the appeal asking this Court to modify or reverse portions of the trial court's judgment. He asserts in his answer that the trial court erred in: (1) not ordering production of D.A. subpoenas contained in all open case files; and (2) failing to find that the D.A. was arbitrary and capricious. Mr. Maldonado also seeks an additional award of attorney's fees and costs in defending this appeal.

Exclusion of Open Case Files

The trial court determined that the D.A. subpoenas contained within the open case files are exempt from production under the Louisiana Public Records Law, La. R.S. 44:3. We agree.

La. R.S. 44:3(A) states, in pertinent part:

Nothing in this Chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of the ... district attorneys ..., which records are:
(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled ....

Clearly, the D.A.'s open case files requested by Mr. Maldonado represent cases wherein criminal litigation is pending. Accordingly, we find that the trial court correctly ruled that the open files are exempt from production.

Arbitrary and Capricious

Mr. Maldonado further argues in his answer to the appeal that the trial court erred in finding that the D.A. was not arbitrary and capricious. We find no merit in this assignment of error.

Pursuant to La. R.S. 44:35(E)(1),

If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification. (emphasis added).

It is well established that an award of civil penalties pursuant to La. R.S. 44:35(E)(1) is discretionary with the trial judge, and is reviewed under an abuse-of-discretion standard. Innocence Project New Orleans v. New Orleans Police Dep't, 2013-0921, p. 8 (La. App. 4 Cir. 11/6/13), 129 So.3d 668, 674 (citing Ott v. Clarkson, 2003-1287, p. 4 (La. App. 4 Cir. 12/10/03), 863 So.2d 663, 666 ).

"The terms 'arbitrary and capricious' mean willful and unreasoning action, absent consideration and in disregard of the facts and circumstances of the case." Toups v. City of Shreveport , 2010-1559, p. 3 (La. 3/15/11), 60 So.3d 1215, 1217. "However, when there is room for two opinions, an action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed an erroneous conclusion has been reached." Id. at pp. 3-4 (citing Four States Realty Co., Inc. v. City of Baton Rouge , 309 So.2d 659, 664 (La. 1974) ).

In his brief to this Court, Mr. Maldonado describes the D.A.'s actions as an absolute failure and staunch refusal to act. The record does not support this assertion. To the contrary, the record demonstrates that the D.A. timely responded to each records request, providing an explanation as to why the documents were not readily available, and the difficulty involved in locating the subpoenas within the large volumes of case files. The D.A. met with Mr. Maldonado's attorney in order to resolve the matter. Email communications contained in the record also demonstrate an effort by the D.A. to cooperate with Mr. Maldonado. Furthermore, the D.A. turned over some D.A. subpoenas and made some entire files available to Mr. Maldonado that he chose not to review. Mr. Maldonado acknowledged in his amended petition that he did not want to view entire files. Rather, he only wanted to be supplied with the D.A. subpoenas.

In sum, the record contains no evidence that the D.A. acted unreasonably or was arbitrary and capricious in handling Mr. Maldonado's public records request. Thus, there was a reasonable basis for the trial court's ruling on this issue.

Attorney's Fees for Answering the Appeal

Mr. Maldonado seeks additional attorney's fees for defending this appeal. It is well established in our jurisprudence that,

An increase in attorney fees is usually awarded where a party who was awarded attorney fees by the trial court is forced to and successfully defends an appeal. The award of additional attorney fees is to keep the appellate judgment consistent with the underlying judgment. To determine the amount of attorney fees, factors that are considered include "the skill exercised by the attorney and the time and work required on appeal."

State of Louisiana, Dept. of Transp. & Develop. v. Monteleone , 2011-1013, p. 34 (La. App. 5 Cir. 11/13/12), 106 So.3d 153, 174 (internal citations omitted); See also, Whitbeck v. Champagne , 2014-245, p. 22 (La. App. 3 Cir. 10/1/14), 149 So.3d 372, 386 (citing McFadden v. Import One, Inc. , 2010-952, p. 16 (La. App. 3 Cir. 2/9/11), 56 So.3d 1212, 1223 ).

Mr. Maldonado has successfully defended this appeal; and, therefore, he is entitled to additional attorney's fees. However, we find the record before us is insufficient to determine the appropriate amount of attorney's fees for Mr. Maldonado's attorneys'

post-judgment work on appeal. Accordingly, we remand to the trial court for a hearing on the issue of attorney's fees for this appeal.

CONCLUSION

For the foregoing reasons, Mr. Maldonado's motion to dismiss appeal is denied. Finding no merit in the D.A.'s assignments of error, we affirm the November 22, 2017 judgment and remand to the trial court for a determination of additional attorney's fees to which Mr. Maldonado is entitled for work performed on this appeal. All other relief requested in Mr. Maldonado's answer to the appeal is denied.

AFFIRMED, MOTION TO DISMISS APPEAL DENIED; ANSWER TO APPEAL DENIED; REMANDED

      The Lens is a non-profit investigative journalism website based in New Orleans.

      The response is dated May 25, 2017. Assistant District Attorney Donna Andrieu testified that she mailed the response on May 25, 2017. Mr. Maldonado claims he did not receive the response until a later time, when he asked the D.A.'s office to mail him a copy.


source: Caselaw Access Project

author: Judge Daniel L. Dysart

license: Public Domain

text:
    Corey CLARK v. DEPARTMENT OF POLICE
    NO. 2018-CA-0399
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 10, 2018
    Donovan A. Livaccari, LIVACCARI VILLARRUBIA LEMMON LLC, 101 W. Robert E. Lee Blvd., Suite 402, New Orleans, LA 70124-2472, COUNSEL FOR PLAINTIFF/APPELLANT
    Cherrell S. Taplin, SENIOR CHIEF CITY ATTORNEY, Elizabeth Robins, DEPUTY CITY ATTORNEY, Sunni J. LeBeouf, CITY ATTORNEY, Isaka R. Williams, ASSISTANT CITY ATTORNEY, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112 COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins )
   Judge Daniel L. Dysart

Corey Clark appeals the March 20, 2018 judgment of the Civil Service Commission denying his appeal of his termination from his permanent, classified employment with the New Orleans Police Department. For the reasons that follow, we affirm.

BACKGROUND:

Corey Clark ("Clark"), an officer with the New Orleans Police Department ("NOPD") was dispatched on July 6, 2013, to an address in New Orleans East to respond to a Signal 35 (simple battery), with a possible Signal 43 (simple rape). The initial report prepared by Clark indicated that he and Officer Brian Boyd spoke with the victim, who reported that an acquaintance had grabbed her by both arms, twisted them behind her back, grabbed her hair and slapped her face. She stated that the acquaintance had also slammed her onto a bed and pinned her down. These facts were identical to those used by Clark to obtain an arrest warrant for the suspect, who was eventually arrested and tried for forcible rape.

The omission from the report of a charge of rape came to light when the victim was assigned a victim witness coordinator for the reported simple battery charge, to whom the victim reported that she was also raped on July 6, 2013. The coordinator reported this information to the Sex Crimes Unit, which precipitated the investigation into whether Clark had neglected to report the rape.

At the criminal trial of the suspect, Clark explained that the victim had reported to him that she had been raped, but that she insisted on not reporting the rape, as she did not want to submit to a medical examination. Clark also admitted at trial that he was aware of the non-discretionary NOPD policy requiring officers to report all incidents of sexually-based offenses to the Sex Crimes Unit. In addition to not reporting the rape, Clark admitted that a former NOPD officer was present at the scene, but Clark determined that his presence was not germane to the incident, and also failed to include his name in the report.

Following the criminal trial, an article appeared in the local newspaper documenting that a NOPD officer had neglected to report a rape. A complaint was lodged against Clark by a ranking officer with the Public Integrity Bureau.

After an investigation and hearing, it was recommended that Clark be cited for violating the following rules/policies of the NOPD:

Rule 4, Performance of Duty; Paragraph 2; Instructions from an Authoritative Source, to wit, NOPD Policy 600.2 (b-2) - "An officer responsible for an initial investigation shall complete no less than the following ... If information indicates a crime has occurred, the officer shall .... Determine if additional investigative resources (e.g., investigators or scene processing) assistance is necessary and request assistance as required."
Rule 6: Official Information; Paragraph 2; False or Inaccurate Reports - "An employee shall not knowingly make, or cause or allow to be made, a false or inaccurate oral or written report of an official nature, or intentionally without material matter from such report or statement."

A hearing was held on November 30, 2016. Clark testified that the call for service on July 6, 2013, was his first call for a sexual assault matter. He admitted that he should have notified the Sex Crimes Unit, and that he believed the allegation of rape was material to the incident; however, he stated that he "forgot" to include the allegation of rape because he was busy doing so many other things relative to the call and because the victim did not want to report the rape.

A disciplinary letter dated November 30, 2016, was signed by Chief Michael Harrison, accepting Deputy Chief Paul Noel's recommendation for discipline. The letter indicates that Clark was terminated for creating and submitting a simple battery report and intentionally withholding material information that a rape had occurred, a violation of Rule 6. Additionally, he was disciplined for violation of Rule 4, which occurred when he failed to properly notify the Sex Crimes Unit after the victim reported the rape.

On September 7, 2017, a hearing before a referee appointed by the Civil Service Commission ("CSC") was held. Clark testified that it was his understanding that if a victim did not want to report a crime, that there was no crime for reporting purposes. Clark stated that another motivation for not reporting the rape was the victim's desire for privacy. On March 20, 2018, the CSC denied Clark's appeal, and this appeal followed.

DISCUSSION:

A. Standard of Review

An appointing authority may discipline an employee with permanent status in the classified service for sufficient cause. La. Const. Art. X, § 8 (A). If an employee believes that an appointing authority issued discipline without sufficient cause, the employee may appeal to the CSC. Id. In an appeal before the CSC brought pursuant to Article X, § 8(A) of the Louisiana Constitution, the appointing authority has the burden of proving, by a preponderance of the evidence: 1) the occurrence of the complained of activity; and 2) that the conduct complained of impaired the efficiency of the public service in which the appointing authority is engaged. Fulton v. Dep't of Police , 17-0523, p. 4 (La.App. 4 Cir. 12/6/17), 234 So.3d 107, 110, writ denied , 18-0016 (La. 2/23/18), 237 So.3d 515 (quotations omitted). If the CSC determines that the appointing authority has met its initial burden and had sufficient cause to issue discipline, it must then determine if that discipline "was commensurate with the infraction." Abbott v. New Orleans Police Dep't, 14-0993, p. 7 (La.App. 4 Cir. 2/11/15), 165 So.3d 191, 197 (citing Walters v. Dep't of Police of City of New Orleans, 454 So.2d 106, 113 (1984) ).

The decision of the CSC "is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review." Cure v. Dep't of Police , 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094 (citing La. Const. Art. X, § 12 (B) ). "In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the [CSC] order unless it was arbitrary, capricious, or characterized by an abuse of discretion." Id., p. 2, 964 So.2d at 1094-95. A decision of the CSC is "arbitrary and capricious" if there is no rational basis for the action taken by the CSC. Id., 964 So.2d at 1095.

B. Assignments of Error

In his first assignment of error, Clark argues that the CSC erred when it found that the NOPD had established lawful cause to discipline him. Clark admits that the victim reported that she had been both battered and sexually assaulted, yet he argues that he was justified in not including the rape in his report as he was honoring the victim's request. He further cites to NOPD's policy of not including references to sexual assault in the initial incident report, and states that he was not legally obligated to investigate the sexual assault.

To establish that Clark violated the NOPD rule prohibiting false and inaccurate reporting, the appointing authority must prove: 1) that a violation of interdepartmental rules or policies occurred; and 2) that the violation impaired the efficient operation of the department. Legal cause for disciplinary action exists whenever the employee's conduct impairs the efficiency of the public service in which the employee is engaged. Saacks v. City of New Orleans, 95-2074, p.12 (La.App. 4 Cir. 11/27/96), 687 So.2d 432, 440.

Here, Clark admitted that the victim told him that she had been raped, and that he was aware of the rule to notify the Sex Crimes Unit of the rape. When testifying at the disciplinary hearings and the criminal trial of the perpetrator, Clark gave different reasons for not reporting the rape. His testimony varied from the victim not wanting to report it (she did not want a medical examination), the victim asked that her privacy be respected, he was instructed not to put allegations of sexual assault in initial reports, and he was told that without a victim there was no crime. Clark also testified that he "forgot" to include the rape in the report as he was "doing so many things at one time," presumably at the time of the initial call.

The CSC specifically stated that it found Clark not to be a credible witness. Based on our review of the record, we agree. Clark admitted that he knew he was bound to notify the Sex Crimes Unit of the rape allegation, yet despite this knowledge, he knowingly withheld the information.

The failure of Clark to report the rape seriously impaired the efficient operation of the NOPD. First, the victim was deprived of the opportunity to receive the counseling and advice to which she was entitled as a sex crime victim. Second, the local media coverage of Clark's handling of the rape subjected the NOPD to criticism and diminished its reputation in the community. Clearly, Clark's misconduct had an adverse impact on the NOPD's efficient operations.

We find no error in the CSC's finding of lawful cause to discipline Clark.

In his second assignment of error, Clark argues that his discipline was not commensurate with the violation.

The CSC found that Clark knowingly withheld material information from his initial investigative report in violation of NOPD Rule 6, Paragraph 2. NOPD argues that it considers this type of conduct to be deception-based and renders an officer unemployable. It reasons that Clark's arbitrary decision to withhold material information from a police report impacts his credibility when preparing police reports, affidavits or testimony in criminal matters. Indeed, defense counsel in the underlying rape trial challenged Clark's credibility by pointing out that he had omitted any reference to a rape in the initial report.

The punishment imposed on a police officer for violating police department rules must be commensurate with the dereliction. Walters, 454 So.2d at 113. "The discipline must have a rational basis to be commensurate with the dereliction or else it is arbitrary and capricious." Waguespack v. Dep't of Police , 12-1691, p. 5 (La.App. 4 Cir. 6/26/13), 119 So.3d 976, 978 (citations omitted). Though not all violations are sufficient for disciplinary action, the reviewing court may deem disciplinary action to be "arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the efficient operation of the public service." Macelli v. New Orleans Police Dep't, 98-1441, pp. 4-5 (La.App. 4 Cir. 10/21/98), 720 So.2d 754, 756 (citations omitted).

We find that the NOPD has demonstrated a real and substantial relationship between Clark's conduct and the efficient operation of the NOPD. We further find no error in the CSC's decision to affirm the NOPD's recommendation to terminate Clark's employment.

Accordingly, for the foregoing reasons, we affirm the CSC's denial of Clark's appeal.

AFFIRMED

      Clark asserts that the call was a Signal 21, a miscellaneous incident.

      Boyd later resigned from NOPD.

      Clark was also cited for violation of two other rules/policies, but those charges were deemed unfounded.


text:
    Alfred MORAN v. DEPARTMENT OF POLICE
    NO. 2018-CA-0433
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 10, 2018
   Kevin V. Boshea, Attorney at Law, 2955 Ridgelake Drive, Suite 207, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT

Elizabeth Robins, Deputy City Attorney, Isaka R. Williams, Assistant City Attorney, Cherrell S. Taplin, Sr. Chief Deputy City Attorney, Sunni J. LeBouf, City Attorney, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins )

Judge Tiffany G. Chase Officer Alfred Moran (hereinafter "Officer Moran") seeks review of the February 28, 2018 decision issued by the Civil Service Commission (hereinafter "the Commission"). The decision denied Officer Moran's appeal and upheld his termination of employment with the New Orleans Police Department (hereinafter "the NOPD"). After consideration of the record before this Court and the applicable law, we affirm the decision of the Commission terminating Officer Moran.

Facts and Procedural History

On September 30, 2015, Officer Moran presented to the 8th District police station, preparing to transport arrestee Vincent Knapp (hereinafter "Knapp") to central lockup. Knapp was handcuffed and tethered to a bench inside the police station. Officer Lewis Simmons (hereinafter "Officer Simmons") escorted another arrested individual into the station around the same time. Officer Simmons placed his arrestee on the bench next to Knapp and positioned his body worn camera (hereinafter "BWC") on the desk directly in front of the bench. Officer Moran approached Knapp, in preparation for the transport, and placed his right hand on Knapp's shoulder. Knapp began shouting derogatory slurs at Officer Moran and kicked him. Officer Moran struck Knapp in the face with his left hand. Knapp continued to shout obscenities and Officer Moran struck Knapp in the face a second time. Present in the room during the incident were Officer Simmons, Officer Jeffery Tyler, Officer Kelli Dunnaway, Officer Christopher Jennings and Sergeant Samuel Dupre (hereinafter "Sgt. Dupre"). Officer Moran proceeded with the transport procedure and did not report the incident to his supervisor.

Sgt. Dupre, who was the supervisor on duty on the night of the incident, viewed video from Officer Simmons' BWC the following day. After viewing the video, he reported the incident to Lieutenant Kevin Burns (hereinafter "Lt. Burns") with the Public Integrity Bureau's Force Investigation Team (hereinafter "FIT"). Lt. Burns initiated a criminal investigation of the incident, while Sergeant John Helou (hereinafter "Sgt. Helou"), also with FIT, simultaneously initiated an administrative investigation.

On October 6, 2015, the Public Integrity Bureau instructed Officer Moran, as well as the other personnel present in the room during the incident, to complete a "Use of Force Statement." Officer Moran was allowed to view his BWC footage prior to providing his use of force statement, but was not allowed to view any other video surveillance. His BWC footage does not show the incident because it was not activated until after the incident occurred. On the same date, Officer Moran provided Lt. Burns with a criminal statement regarding the incident. Officer Moran testified that he "pushed" Knapp's face away from him, and attempted to "redirect" his face, in order to prevent Knapp from biting and spitting on him. He testified that Knapp was making biting and spitting gestures toward him. Officer Moran further testified that he did not recall striking Knapp a second time. The Orleans Parish District Attorney's Office declined to pursue criminal charges against Officer Moran and the administrative investigation continued.

On November 18, 2015, Officer Moran completed an administrative statement with Sgt. Helou. His testimony was consistent with the testimony provided in his criminal statement. Sgt. Helou reviewed all available video footage of the incident. This included Officer Simmons' BWC, Officer Moran's BWC, the 8th District surveillance video footage and Officer Moran's patrol vehicle video footage. At the conclusion of the investigation, Sgt. Helou found that Officer Moran violated the NOPD rule regarding honesty and truthfulness. He reasoned that Officer Moran was untruthful, fabricating his version of events and his choice of words by describing his use of force as a "push." Sgt. Helou recommended NOPD substantiate the allegations of misconduct against Officer Moran.

On June 15, 2016, Deputy Superintendent Paul Noel (hereinafter "Superintendent Noel"), chief of NOPD operations, conducted a disciplinary hearing. This was the first time Officer Moran was able to view the footage from Officer Simmons' BWC, which completely captured the incident. After viewing the footage, Officer Moran conceded that the strike appeared to be more of a "punch" rather than a "push." Superintendent Noel concluded that Officer Moran's responses during the hearing were purposefully deceptive. He reasoned that Officer Moran purposefully mischaracterized his contact with Knapp when he used the words "push" and "redirection" regarding his use of force. Additionally, Superintendent Noel found Officer Moran untruthful when he stated he did not recall striking Knapp a second time. Superintendent Noel reasoned that since Officer Moran testified this was the first time he struck an arrestee, it was not plausible that he could not remember striking Knapp the second time. Superintendent Noel recommended termination of employment due to violation of NOPD's rule on honesty and truthfulness. Superintendent Michael Harrison concurred and issued a letter of termination to Officer Moran.

Officer Moran appealed his termination to the Commission. The appeal was heard by a hearing officer over the course of four days. During the hearing, the hearing officer heard extensive testimony and viewed all evidence. The hearing officer concluded that Officer Moran's termination was warranted and noted that although Officer Moran violated other NOPD policies, he was only terminated for violation of the truthfulness rule. The hearing officer observed that the only level of discipline for violation of the NOPD's truthfulness rule is termination of employment. Therefore, the level of discipline was appropriate.

The Commission reviewed the transcript and exhibits from the hearing, as well as the hearing officer's report. The Commission issued its decision on February 28, 2018, finding Officer Moran intentionally provided misleading statements during the NOPD's investigation. The Commission determined, after viewing the video evidence, that a reasonable person in Officer Moran's situation would describe the two strikes to Knapp as a "slap" and a "punch." Additionally, the Commission found that Officer Moran's conduct did not illustrate that he was concerned about being "bit" or "spat on" given his close proximity to Knapp. The Commission also found Officer Moran's failure to immediately notify his supervisor about the incident a contributing factor to its conclusions. It determined Officer Moran's failure to report the incident as recognition of the seriousness of the situation and that he attempted to avoid responsibility for his actions. The Commission denied Officer Moran's appeal and upheld his termination. This appeal followed.

Discussion

This Court has previously determined that decisions by the Commission involving questions of fact and law are reviewed under a manifest error/clearly erroneous standard of review.

In Banks v. New Orleans Police Dep't., 2001-0859, p. 3 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513-14, we articulated the standard of review in civil service cases. First, the review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly erroneous standard. Second, when the Commission's decision involves jurisdiction, procedure, and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. See Stern v. New Orleans City Planning Comm'n, 2003-0817, pp. 5-6 (La.App. 4 Cir. 9/17/03), 859 So.2d 696, 699-700.

Russell v. Mosquito Control Bd. , 2006-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639-640. As such, we will review this matter under a manifest error/clearly erroneous standard of review.

By his assignments of error, Officer Moran argues the Commission erred in upholding his termination for untruthfulness. He contends the evidence was insufficient to establish that his statements, regarding the incident, were intended to deceive the NOPD. Furthermore, Officer Moran maintains that the NOPD failed to meet its burden of proof.

"An employee with permanent status in the classified city service may only be terminated, or otherwise subjected to disciplinary action, in writing and for good cause." Laviolette v. Dep't of Police , 2016-0095, p. 5 (La.App. 4 Cir. 8/24/16), 200 So.3d 962, 966. This Court has determined that "good cause" includes conduct by the employee which is detrimental to the efficient operation of the department or prejudicial to the public service. Id. Therefore, the NOPD must prove by a preponderance of the evidence that the complained of activity and conduct impaired the efficiency of public service. Johnson v. Dep't of Police , 575 So.2d 440, 444 (La.App. 4 Cir. 1991).

When the appointing authority has terminated an employee, the Commission has a duty to review whether good or lawful cause exists for taking such disciplinary action against an employee. Id. at 443. Although the NOPD found Officer Moran violated various department policies, he was only terminated for violation of the rule regarding honesty and truthfulness. Officer Moran contends that in providing his statements he was "inaccurate" about the type of strike on Knapp, but not intentionally untruthful. The NOPD maintains that Officer Moran intentionally minimized the severity of the strike on Knapp. The Commission agreed with the NOPD.

The NOPD categorizes two statements by Officer Moran as untruthful: (1) the words used to describe his physical contact with Knapp and (2) Knapp's behavior that led to the strikes to his head.

A review of the video footage from the 8th District surveillance camera provides a clear view of the incident as it unfolded. While the level of disrespectful and derogatory statements Knapp yelled at Officer Moran cannot be disregarded, it does not negate Officer Moran's responsibility. The Commission noted that to find Officer Moran violated the rule regarding truthfulness it must find that Officer Moran provided a materially false statement with the intent to deceive the NOPD investigators. Officer Moran provided three statements regarding the incident. In all three statements he maintains that he "pushed" Knapp's face away from him in an attempt to prevent him from biting or spitting on him. However, a review of the video shows that the strike to Knapp's face, by Officer Moran, was not a "push" but more of a slap or punch.

Officer Moran maintains that Knapp was making biting and spitting gestures toward him and he pushed Knapp's face in order to prevent those actions. The Commission found that Officer Moran was untruthful in his statements that Knapp attempted to bite or spit on him. The Commission reasoned that the video does not illustrate Knapp making a biting or spitting gesture toward Officer Moran. We find this conclusion supported by the evidence. Specifically, a review of the video does not support Officer Moran's version of events. While Knapp is yelling derogatory comments, it does not appear that he is attempting to bite or spit on Officer Moran.

The Commission weighed the evidence and determined the NOPD established Officer Moran was untruthful in the statements he provided during the course of the investigation. This Court has previously held that " 'deference will be given to the factual conclusions of the Commission.' " Pope v. New Orleans Police Dep't , 2004-1888, p. 6 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4 (quoting Smith v. New Orleans Police Dep't , 1999-0024, p. 5 (La.App. 4 Cir. 9/22/99), 743 So.2d 834, 837 ). The Commission deemed the evidence submitted by the NOPD sufficient to meet its burden of proof. Thus, we find the factual conclusions made by the Commission are not contrary to the evidence and as such, will not be disturbed by this Court.

Conclusion

We review the decision of the Commission to determine if its actions are arbitrary or capricious. "A decision by the Civil Service Commission is 'arbitrary or capricious' if there is no rational basis for the action taken by the Civil Service Commission." Waguespack v. Dep't. of Police , 2012-1691, p. 3 (La.App. 4 Cir. 6/26/13), 119 So.3d 976, 978. The Commission's decision should not be modified absent such a finding. Based on the record before this Court, we do not find the decision of the Commission arbitrary or capricious. The Commission found Officer Moran's description of the type of strike on Knapp intentionally deceptive and designed to thwart the investigation into his actions. The Commission also found Officer Moran's failure to immediately notify his supervisor a contributing factor in its decision. It reasoned that Officer Moran was aware of the severity of his actions and attempted to avoid responsibility by failing to report his actions. The Commission determined that Officer Moran deliberately misled the investigation in order to avoid discipline.

For the foregoing reasons, we find the record reasonably supports the Commission's decision to uphold Officer Moran's termination due to his violation of the NOPD's rule regarding honesty and truthfulness. Therefore, the Commission was not manifestly erroneous in finding the evidence presented by the NOPD sufficient to terminate Officer Moran.

AFFIRMED

      Sgt. Helou also found Officer Moran violated the NOPD rules regarding unauthorized force, notification to supervisors, officer responsibilities and prisoner transportation.

      Rule 2: Moral Conduct, Paragraph 3: Honesty and Truthfulness
      Honesty and Truthfulness
      Employees are required to be honest and truthful at all times, in their spoken, written, or electronic communications. Truthfulness shall apply when an employee makes a materially false statement with the intent to deceive. A statement is material when, irrespective of its admissibility under the rules of evidence, it could have affected the course or outcome of an investigation or an official proceeding, whether under oath or not, in all matters and official investigations relating to the scope of their employment and operations of the Department, as follows:
      (a) Employees shall truthfully state the facts in any oral, written, or electronic communication;
      (b) Employees shall not willfully or negligently make any false, misleading, or incorrect oral, written, or electronic communication;
      (c) Employees shall not willfully or negligently withhold relevant information of which they have knowledge, from any oral, written, or electronic communication;
      (d) Employees shall truthfully answer all questions directed to them on the order of the Superintendent of Police, the Superintendent's designee, a superior officer, or any judicial, departmental, or other official investigative body....


author: Judge Regina Bartholomew-Woods

text:
    Annabelle BUGGAGE v. TOURO INFIRMARY
    Grace Buggage, Rodney Buggage, and Gail Holmes on behalf of their Deceased Mother, Annabelle Buggage v. American Home Assurance Company, Healthcare Casualty Insurance Limited, Aggreko, LLC and Touro Infirmary
    NO. 2016-CA-1111 NO. 2016-CA-1112
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 10, 2018
    Val Patrick Exnicios, Kelsey Leigh Zeitzer, LISKA, EXNICIOS & NUNGESSER, 1515 Poydras St., Suite 1400, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT
    Franklin David Beahm, Jeremy Robichaux, BEAHM & GREEN, LLC, 145 Robert E. Lee Blvd., Suite 408, New Orleans, LA 70124-2552, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins )
   Judge Regina Bartholomew-Woods

In this consolidated appeal, Plaintiffs-Appellants, Grace Buggage, Rodney Buggage, and Gail Holmes appeal the July 25, 2016 judgment of the district court in favor of Defendants-Appellees, Touro Infirmary and Healthcare Casualty Insurance Company, denying their claims. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 19, 2005, Mrs. Annabelle Buggage, age 72, was admitted to the care of Touro Infirmary ("Touro") for an infection and ulcer in her left little toe. Further evaluation revealed the toe to have a number of infections, including Methicillin-resistant Staphylococcus aureus ("MRSA"). X-ray scans also revealed osteomyelitis, or bone infection. Mrs. Buggage began a treatment regimen of antibiotics and hyperbarics, and remained at Touro as Hurricane Katrina ("Katrina") made landfall in New Orleans on August 29, 2005. As a result of the storm, Touro sheltered in place and discontinued all "non-essential" services to patients in its care, including those being provided to Mrs. Buggage. City services, including electrical power and water service failed in the aftermath of the storm and levee failures, which lead to the evacuation of the hospital. Ms. Buggage was evacuated to Houma, from where she was transported by family members to Piedmont Atlanta Hospital in Georgia. There, she underwent surgery during which doctors removed her little toe down to the metatarsal bone, or the "knuckle" of the toe.

Mrs. Buggage passed away in October 2009, and Plaintiffs filed suit in January 2014. Based on theories of negligence and premises liability, Plaintiffs argued that had Touro been adequately prepared for Katrina, Mrs. Buggage would have been evacuated prior to Katrina's landfall and transferred to an acute-care facility that would have provided continual treatment for her toe, eliminating the need to amputate it down to the metatarsal bone.

The district court presided over a bench trial from May 2 through 4, 2016, rendering a final written judgment and reasons therefor on July 25, 2016.

In its reasons for judgment, the district court reasoned that "Touro's plan complied with [the] Joint Commission [on Accreditation of Healthcare Organizations, or "JCAHO"], [as well as] state, and federal requirements for hospital emergency preparedness." The court pointed to testimony indicating that Touro had a "written Hurricane Management Plan" as well as an unwritten evacuation plan, and that there was no evidence that a written evacuation plan would have changed the outcome for Mrs. Buggage. The court also noted testimony indicating that the hospital had adequate water, food, and medical supplies throughout the storm up to the evacuation. The court was also not convinced Touro provided inadequate ventilation, or that the lack of running water or air conditioning presented an unreasonably dangerous environment. Further, the court observed that it was common, at the time, for hospitals to shelter in place, and that a total hospital evacuation presented its own risks. The court further indicated that had it found a breach of a duty of care, it could find no basis for finding the breach caused the ultimate amputation or extent thereof, as all the doctors present at trial agreed that Mrs. Buggage's toe could not be revitalized. The court also pointed to other health conditions that may have contributed to the amputation of Mrs. Buggage's toe, including, but not limited to, hypertension, diabetes, and osteomyelitis. Ultimately, the court concluded that it was more probable than not that amputation would have been required even if Hurricane Katrina had not struck.

STANDARD OF REVIEW

This is not a medical malpractice claim. Appellants proceeded to trial alleging ordinary negligence and premises liability. Accordingly, as to negligence, this Court

may not set aside the findings of fact made by a jury or trial court unless those findings are clearly wrong or manifestly erroneous .... In order to find that the factfinder's determinations were manifestly erroneous or clearly wrong: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.... The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one.

Johnson v. Ray , 2012-0006, 2012-0007, p. 6 (La.App. 4 Cir. 12/5/12), 106 So.3d 629, 635 (internal citations omitted). We apply the same standard to Appellants' premises liability claim. Broussard v. State ex rel. Office of State Bldgs. , 2012-1238, p. 13 (La. 4/5/13), 113 So.3d 175, 185-86.

To prove a negligence claim, Plaintiffs were required to show that Defendant had a duty to conform its conduct to a specific standard of care, that Defendant's conduct failed to conform to the appropriate standard of care, that Defendant's substandard conduct was a cause-in-fact of the plaintiffs' injuries, that Defendant's substandard conduct was a legal cause of the plaintiff's injuries, and that Plaintiffs were damaged. Falcone v. Touro Infirmary , 2013-0015, 2013-0016, p. 4 (La.App. 4 Cir. 11/6/13), 129 So.3d 641, 645. "Factual findings, including breach of duty, cause-in-fact, and legal causation, are subject to the manifest error standard of review." Id. , 2013-0015, 2013-0016,p. 14, 129 So.3d at 650.

In pursuing their claim of premises liability, Plaintiffs were required to show "1) that the thing was in the owner's or custodian's garde; 2) that the thing contained a vice or defect creating an unreasonable risk of harm; and 3) that the damage was caused by the vice or defect." Alexander v. Hancock Bank , 2016-0662, p. 5 (La.App. 4 Cir. 2/8/17), 212 So.3d 713, 717.

THE TRIAL

Plaintiffs called Frank Hijuelos, former director of emergency operations for the City of New Orleans from 1998 to 2001. He testified that in that role, he was tasked with assisting in the development of a hurricane emergency preparedness plan for local hospitals, and that CEOs from all local-area hospitals gathered to meet to discuss such plans in the event of a category three, four or five hurricane. He testified that he had "no doubt" that Touro representatives attended those meetings, as both the State and City mandated participation. He explained that officials from the hospitals were advised of the consequences of such a hurricane, and that the only safe place would be outside the City. In the event of an evacuation order, hospitals were advised that they should discharge all patients except those at risk of death if transported. They were also advised not to expect city services or utilities, and that generators below the second floor of a building could end up under water. Mr. Hijuelos did acknowledge, however, that the plans developed contemplated the overtopping of levees, not their total failure, as occurred during Katrina.

Plaintiffs next called Scott Landry, Director of Facilities Management at Touro during Katrina. In that role, Mr. Landry was responsible for plant operations and maintenance, including preparing the hospital for an incoming hurricane. He testified that he participated in meetings of the Metro Hospital Council, where he was advised of the consequences of a storm as powerful as Katrina was expected to be, and he in turn advised Touro CEO Leslie Hirsch of the "worst case scenario" in the days leading up to Katrina's landfall. He further testified that Touro's lack of a written evacuation plan violated the standards of the JCAHO. However, Touro acquired bottled water, emergency power generators, and fifty (50) spot coolers in anticipation of the storm.

Plaintiffs next submitted the deposition of Leslie Hirsch, who began as Touro's CEO one week prior to Katrina's landfall. Mr. Hirsch testified that Touro had never fully evacuated, and that such action was not contemplated in the face of Katrina. He explained that the hospital did lose power and water, though it was the first time in Touro's history that it had experienced a total loss of water services. He explained that the generators began to fail after the levees broke, and that he ultimately made the decision to evacuate due to the loss of water and backup power. He testified that Touro had adequate food, water, and medicine up to the time of evacuation.

Sethany Johnson, a registered nurse employed by Specialty Hospital of New Orleans at the time of Katrina, testified that in the aftermath of Katrina, Touro was extremely hot and humid. She stated the toilets stopped flushing, and that bottled water ran out. She testified that there was no ventilation aside from within the hospital stairwells.

Dr. Ira Markowitz, a board certified vascular surgeon, testified that he was Mrs. Buggage's admitting physician at Touro on August 19, 2005, and that she presented with a draining ulcer on her toe. He noted her toe was red, tender, and painful. Mrs. Buggage was admitted after it was discovered she had MRSA. He noted that Mrs. Buggage had diabetes that was not well-controlled, as well as hypertension. He explained that the combination of conditions put her at risk for limb loss, and she was therefore placed on multiple medications. He ultimately diagnosed her toe condition as cellulitis of the foot and osteomyelitis. He also consulted with Dr. Shiva Akula, an infectious disease specialist, who recommended partial amputation of the foot. However, Dr. Markowitz disagreed with that assessment, suggesting he wished to avoid removing any part of her foot surgically. Thus, he began Mrs. Buggage's treatment with antibiotics and began evaluating her for hyperbaric treatment, which involved placing her in an oxygen chamber to increase oxygen flow to her foot. Mrs. Buggage responded positively to the oxygen treatments, such that Dr. Markowitz believed the tip of her toe would "auto-amputate." Dr. Danilyants, the director of the hyperbaric unit at Touro, indicated in his reports that Mrs. Buggage was receiving an "excellent result" from the treatment. Dr. Markowitz was of the opinion that without continued antibiotic and hyperbaric treatment, Mrs. Buggage's condition would have worsened. He further opined that the ultimate amputation of her toe at Piedmont could have resulted in the need for further subsequent amputation of her other toes.

Dr. Kevin Stephens, board certified in obstetrics and gynecology as well as "quality assurance and utilization review," testified next. He was qualified by the court as an expert medical doctor and in emergency management preparedness. He testified that heat, such as that present at Touro during Katrina, could lead to dehydration, which would have further compromised Mrs. Buggage's condition. He further explained that such heat increases one's need for oxygen, which could render one more susceptible to infection and exacerbate her diabetic condition. He gave his professional medical opinion that Mrs. Buggage's condition worsened as a result of the conditions she experienced at Touro. He opined that the conditions at Touro were "unreasonably dangerous" and that Touro should have evacuated all those patients whose lives would not have been threatened by the process prior to the storm's landfall. On cross-examination, Dr. Stephens acknowledged that Mrs. Buggage was never formally diagnosed as "dehydrated," and that even had she continued her treatment as prescribed, she "still could have lost her little toe." On re-direct, he asserted that even though amputation may have been necessary, he was of the opinion that her experience at Touro required a more extensive amputation.

The defense case began with Dr. Akula, who was accepted by the court as an expert in internal medicine and infectious disease. He provided a consult to Dr. Markowitz upon Mrs. Buggage's admission, and was of the opinion that Mrs. Buggage's toe would require at least some amputation. However, he would have deferred to the surgeon regarding the extent of amputation.

The defense next presented John Huerkamp, the Chief Operating Officer for the New Orleans Sewerage and Water Board at the time of Katrina. He explained that Katrina's floodwaters entered the basement of the Carrollton Water Purification Plant, which prevented it from pumping fresh water to Touro as of 5:00 p.m. on August 31, 2005. He testified the plant had never previously flooded.

The defense also called Cynthia Davidson, the Regional Emergency Coordinator for hospitals for the Department of Health and Hospitals for the region encompassing New Orleans, who was admitted as an expert in hospital emergency preparedness. At the time of Katrina, her job consisted of assisting and coordinating with hospitals to meet guidelines to receive grant money from the Department of Health and Human Services relative to emergency preparedness. She was employed through the Louisiana Hospital Association, and testified that the goals under the grant were "married with" the goals of the JCAHO. She explained the JCAHO is the accrediting organization for hospitals, which in turn allows those accredited hospitals, like Touro, to collect money from the federal government. She explained that the common practice in 2005 was for hospitals to "shelter in place" during storms, with adequate supplies for three days. She testified that all local-area hospitals sheltered in place for Katrina. Furthermore, she stated there existed no requirement under the JCAHO standards for hospitals to provide air conditioning in 2005 in the event of a loss of power. On cross-examination, she acknowledged that Touro failed to comply with the JCAHO requirement to have a written evacuation plan.

The defense next presented the testimony of Dr. Patrick Battey, who was accepted as an expert in vascular surgery. In 2005, he worked at Piedmont Atlanta Hospital, and examined Mrs. Buggage upon her arrival. He diagnosed her with peripheral vascular disease, which he attributed to her history of diabetes and hypertension. He found the description of Mrs. Buggage's toe in the Touro records to be "similar" to how it presented upon her arrival at Piedmont. He was of the opinion that, at the time Mrs. Buggage entered Touro, the only remedy would be to remove her toe, which he ultimately did, removing her toe down to her metatarsal bone. He continued to see Mrs. Buggage after this initial surgery, and testified that as a result of her pre-existing health conditions, she required amputation of all of her toes from both of her feet. He opined that Mrs. Buggage's lack of antibiotics and lack of hyperbaric treatment had no detrimental effect on her condition. As to the latter treatment option, he stated hyperbarics could aid the healing process after surgery, but it would not have revascularized the already dead tissue on her toe. As for both treatment options, he stated neither would have treated Mrs. Buggage's osteomyelitis. He did concede on cross-examination that Mrs. Buggage's experience at Touro could have necessitated taking off more of the toe at Piedmont.

The defense also presented the testimony of Dr. Robert Batson, a board certified vascular surgeon, who was accepted as an expert in the field. Dr. Batson reviewed medical records and depositions relative to Mrs. Buggage's treatment, but did not treat or examine her himself. He did state he had treated patients with Mrs. Buggage's conditions, and would have initially prescribed broad-spectrum antibiotics, but not hyperbaric treatment. Dr. Batson appeared most concerned about Mrs. Buggage's osteomyelitis, which he described as a "deep bone infection." He also reviewed an angiogram of Mrs. Buggage's leg which revealed advanced arterial blockage far down into her leg into the area of her ankle. He further noted that the infection in the bone had progressed first through her tendons, thus compromising them. In his opinion, the toe infection could have been a precursor to something worse. Therefore, he believed that based upon her condition when she first presented to Touro, the proper course of treatment would have been to remove her toe down to the metatarsal bone, and that to remove anything less could have jeopardized the toe amputation. He stated that the surgery ultimately performed by Dr. Battey constituted "standard treatment" and was "the right thing to do." Based on this analysis, Dr. Batson could attribute no detrimental effect to Mrs. Buggage's lack of continued antibiotic or hyperbaric treatment at Touro during Katrina.

ANALYSIS

Assignment of Error No. 2

We begin our analysis with Appellant's second assignment of error. Therein, Appellants argue that the district court erred in failing to give proper weight to the testimony of Mrs. Buggage's treating physicians relative to the testimony of her non-treating physicians.

In evaluating the testimony of the numerous physicians in this case, this Court is well-aware of the principle that a treating physician's testimony is entitled to greater weight than that of non-treating physicians. Falcone , supra , 2013-0015, 2013-0016,p. 16, 129 So.3d at 651. However, we also recognize that a "treating physician's testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses." Williams v. Wal-Mart Stores, Inc. , 2000-0863, p.6 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134, 1137 (citing Celestine v. U.S. Fidelity & Guaranty Co. , 561 So.2d 986, 991 (La.App. 4 Cir.1990) ).

While Dr. Markowitz, Mrs. Buggage's treating physician, testified that Mrs. Buggage was responding well to antibiotic and hyperbaric treatment, which was echoed by Dr. Danilyants, he also acknowledged that Mrs. Buggage's combined conditions of poorly-controlled diabetes, hypertension, and distal arterial disease put her at risk of limb loss. He also acknowledged Mrs. Buggage's osteomyelitis. Dr. Markowitz is the only doctor who testified that surgical amputation was not his preferred course of treatment, though he did advocate for auto-amputation of the portion of Mrs. Buggage's toe that could not be revitalized through any treatment. Nonetheless, even had treatment continued as planned, Dr. Markowitz could not rule out the possibility that Mrs. Buggage would still lose her toe as she did. Furthermore, Dr. Akula also viewed Mrs. Buggage's toe upon admission at Touro, and opined that amputation would be the appropriate course of action.

The district court also had the benefit of the testimony of treating physician Dr. Battey. His review of the records from Touro indicated Mrs. Buggage presented at Piedmont in a similar condition as that when she first presented to Touro. He explained that amputation was the only appropriate remedy, and that hyperbarics would perhaps be beneficial post-surgery in the healing process, but not as a treatment plan of first resort. Furthermore, Dr. Battey testified that neither antibiotics, nor hyperbarics would affect Mrs. Buggage's osteomyelitis. Though not a treating physician, Dr. Batson supported the course of treatment undertaken at Piedmont by Dr. Battey. Dr. Batson even opined that the surgery performed weeks later at Piedmont would have been the appropriate treatment for Mrs. Buggage at the time she was admitted at Touro.

In assigning such error, Appellants appear to suggest that conclusive weight should be given to the testimony of those treating physicians who testified in favor of an auto-amputation course of treatment, to the exclusion of all other physicians. However, other treating physicians advocated for the ultimate course of treatment undertaken. The testimony of the non-treating physicians provided additional support and context for the district court, and the district court was well within its authority in considering all relevant medical testimony. Thus, we cannot say that the judgment rendered was in any way improperly deferential to the testimony of the non-treating physicians in this matter.

Assignments of Error Nos. 1, 3, and 4

Appellants' first assignment of error challenges the district court's finding that Touro was adequately prepared for Katrina. In a similar vein, Appellants' third assignment of error challenges the district court's finding that Touro was properly ventilated and that the conditions were not unreasonably dangerous. And, in its fourth assignment of error, Appellants' challenge the district court's finding that Touro did not breach its duty to Mrs. Buggage.

It is not disputed that the conditions in Touro in the aftermath of Katrina were unpleasant, perhaps even unbearable. Indeed, it was the lack of basic services, and the indefinite nature of their resumption, that lead Mr. Hirsch to evacuate the hospital. However, for this Court to entertain Appellant's first, third, and fifth assignments of error would necessarily require this Court to overlook the very testimony the district court chose to credit.

In rendering judgment, the district court pointed to Mrs. Buggage's osteomyelitis, hypertension, and diabetes in concluding that despite what occurred at Touro, Dr. Battey would have had to amputate Mrs. Buggage's toe to the metatarsal bone as he did. Indeed, the district court also noted the fact that Mrs. Buggage eventually required removal of all of her toes, on both feet, as a result of her various ailments as evidence that the events at Touro played no role in what happened at Piedmont just a few weeks later.

Based on the foregoing, whether Touro was adequately prepared, or whether Touro was properly ventilated, or whether the district court erred in finding no breach of duty, is irrelevant. The district court made a determination, with a reasonable basis therefor, that despite Katrina and the events at Touro, Mrs. Buggage's toe required amputation to the metatarsal bone.

Assignment of Error No. 5

Appellant's final assignment of error asserts that the district court improperly applied JCAHO's standards in lieu of statutory law on negligence and premises liability. The district court did indeed refer to the JCAHO standards in its reasons for judgment, but we disagree with Appellants' suggestion that the court's analysis stopped there. Indeed, the district court's reasons for judgment indicate that even had it found a breach of the duty of care in the negligence context, it would not have found causation, based on its conclusion that Mrs. Buggage would have required amputation of her toe despite the events at Touro. Furthermore, in order to prove a premises liability claim, Plaintiffs were required to show that a defect in the premises caused the damage suffered by Mrs. Buggage. For the reasons previously discussed, the district court declined to attribute the damage suffered by Mrs. Buggage to any defect present at Touro, and we find that in so doing, the district court did not err.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court in its entirety.

AFFIRMED

      A claim sounding in negligence is governed by La.C.C. art. 2315, which provides, in pertinent part, that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."

      Premises liability is governed by La.C.C. art. 2317.1 :
      The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

      Plaintiffs' counsel objected to this line of questioning, but the record is unclear as to whether the district court intended to overrule or sustain the objection. The district court did note, however, in its reasons for judgment that Mrs. Buggage's combined health conditions ultimately resulted in the amputation of all of her toes, leading this Court to conclude that the district court overruled the objection.