source: Caselaw Access Project

author: Judge Terri F. Love

license: Public Domain

text:
    Patrick SIMMONS, Sr., et al v. The STATE of Louisiana, et al
    NO. 2018-CA-0174
    Court of Appeal of Louisiana, Fourth Circuit.
    August 29, 2018
    John J. Finckbeiner, Jr., LAW OFFICE OF JOHN FINCKBEINER, JR., 2203 Pakenham Drive, Chalmette, LA 70043, AND, Allison K. Nestor, THE LAW OFFICE OF ALLISON K. NESTOR, L.L.C, 829 Baronne Street, New Orleans, La 70113, COUNSEL FOR PLAINTIFF/APPELLANT, PATRICK SIMMONS, SR., ET AL
    C. Wm. Bradley, Jr., Benjamin J. Biller, BRADLEY MURCHISON KELLY & SHEA LLC, 1100 Poydras Street, Suite 2700, New Orleans, LA 70163--2700, COUNSEL FOR DEFENDANT/APPELLEE, CORONER FOR THE PARISH OF ORLEANS
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Paula A. Brown )
   Judge Terri F. Love

This appeal arises from the death of a minor child while in foster care. The parents of the minor child contended that the coroner negligently disposed of their son's body. The coroner filed a motion for summary judgment, which the trial court granted, dismissing their claims.

We find that the coroner demonstrated that the parents would be unable to meet their burden of proof at trial and that no genuine issues of material fact exist. As such, the trial court did not err by granting the coroner's motion for summary judgment. The judgment of the trial court is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Patrick Simmons, Sr. and Crystal Simmons were the parents of Eli Simmons, a physically and mentally disabled minor child. The State of Louisiana, Department of Children and Family Services ("DCFS") removed Eli and his three siblings from their home. Eli was placed in foster care. Eli passed away while in foster care.

Eli's body was placed in the custody of the Orleans Parish Coroner on April 8, 2013. The Coroner performed an autopsy of Eli on April 10, 2013. The minute entry in juvenile court on April 9, 2013, notes that Eli's parents requested that Eli not be buried because they wanted to obtain an independent autopsy. The juvenile court ordered DCFS not to have Eli buried until after the independent autopsy. The October 15, 2013 minute entry from juvenile court states that the parents were no longer requesting an independent autopsy, and that Eli's body could be released for burial. On December 10, 2013, in juvenile court, the minute entry indicates that if the Simmons' attorney could not secure an appropriate burial by January 14, 2014, then the juvenile court judge would order DCFS to pay for Eli's burial. In the January 14, 2014 case review hearing, the juvenile court noted that DCFS was working with the Simmons on a proper burial for Eli. DCFS then telephoned the Coroner on January 27, 2014, 294 days after his death, to request the release of Eli's remains. However, the Coroner informed DCFS that Eli's remains were already buried.

The Simmons, their three remaining minor children, and Southeast Louisiana Legal Services/Children's Legal Services Project (collectively "the Simmons") filed a Petition for Damages against 1) State of Louisiana, Department of Social Services, Office of Community Service; 2) DCFS; 3) Dr. Frank Minyard/Jeffrey Rouse; 4) Orleans Parish Coroner's Office; 5) Saundra Hayes; 6) Brenda Scott; 7) Charrlyse Sandifer; 8) Karen Cross-Caesar; 9) the foster parents; 10) insurer of the foster parents; and 11) the Coroner's Office insurer. The Simmons filed a Supplemental and Amended Petition, which added Drs. Minyard and Rouse in their personal and official capacities, Orleans Parish Government, and their respective insurers as defendants. The Simmons alleged gross negligence and sought damages for wrongful death, survival, loss of consortium, and intentional and/or negligent infliction of emotional distress, among others. The second Supplemental and Amended Petition added the City of New Orleans and its insurer as defendants.

Approximately three years later, the Coroner filed a Motion for Summary Judgment contending that the Simmons lacked factual support for their claims. The trial court found that the Simmons lacked legal interest in Eli's remains, granted the Coroner's Motion for Summary Judgment, and dismissed the Coroner with prejudice. The Simmons' Motion for Devolutive Appeal followed.

The Simmons aver that the trial court erroneously considered improper summary judgment evidence, that genuine issues of material fact remain, and that the trial court should not have dismissed them by finding ex proprio motu that Mr. and Mrs. Simmons had no legal interest in Eli's remains.

MOTION FOR SUMMARY JUDGMENT

"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La. C.C.P. art. 966(A)(2). "The procedure is favored and shall be construed to accomplish these ends." Id. "[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). "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La. C.C.P. art. 966(A)(4).

"The burden of proof rests with the mover." La. C.C.P. art. 966(D)(1). However, "if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden ... does not require him to negate all essential elements of the adverse party's claim." Id. Instead, the mover must "point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Id. The burden then shifts to "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." Id. "All evidence and inferences drawn from the evidence must be construed in the light most favorable to the party opposing the motion." Transworld Drilling Co. v. Texas Gen. Res., Inc. , 604 So.2d 586, 589 (La. App. 4th Cir. 1992).

"An appellate court reviews the granting of a motion for summary judgment with the de novo standard of review." Filmore Parc Apartments II v. Foster , 16-0568, pp. 3-4 (La. App. 4 Cir. 2/15/17), 212 So.3d 621, 624. This Court uses "the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc. , 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. "In determining whether an issue is 'genuine,' courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence." Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "A fact is 'material' when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery." Id.

NEGLIGENT/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The parties agreed at oral argument before this Court that the only claim at issue on appeal is based on negligent infliction of emotional distress ("NIED").

To prevail on a negligence claim, Louisiana law requires that the plaintiff prove:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; (5) actual damages.

Crockett v. Cardona , 97-2346, p. 3 (La. App. 4 Cir. 5/20/98), 713 So.2d 802, 804.

"A plaintiff can recover for unintentional or negligent infliction of emotional distress unaccompanied by physical injury." Succession of Harvey v. Dietzen , 97-2815, p. 8 (La. App. 4 Cir. 6/24/98), 716 So.2d 911, 916. "[R]ecovery for such claims has been controversial or limited by special rules in some jurisdictions." Vallery v. S. Baptist Hosp. , 630 So.2d 861, 866 (La. App. 4th Cir. 1993). However, NIED is "well established" in Louisiana jurisprudence. Id. Nonetheless, "an independent tort of negligent infliction of emotional distress is not recognized." Succession of Harvey , 97-2815, p. 9, 716 So.2d at 916.

"For a cause of action for intentional or negligent infliction of emotional distress, there must be proof that the defendant violated some legal duty to the plaintiff, and the plaintiff must meet the heavy burden of proving outrageous conduct by the defendant." Id. , 97-2815,p. 10, 716 So.2d at 917. "[P]laintiff must show an 'especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.' " Doerr v. Mobil Oil Corp. , 04-1789, p. 8 (La. App. 4 Cir. 6/14/06), 935 So.2d 231, 237, quoting Moresi v. State Through Dep't of Wildlife and Fisheries , 567 So.2d 1081, 1096 (La. 1990).

The Coroner attached the following to its Motion for Summary Judgment: 1) the Coroner's report on Eli; 2) Coroner's office day record; 3) answers and responses to interrogatories; 4) the Simmons' responses to Coroner's requests for admissions; 5) an e-mail regarding discovery to and from opposing counsel; 6) minute entries from the juvenile court proceedings regarding the Simmons' four children; 7) an e-mail regarding a cemetery diagram; and 8) the affidavit of Ben Biller, one of the attorneys representing the Coroner. In opposition, the Simmons attached excerpts from Patrick Simmons and Crystal Simmons' depositions.

The Simmons contend that the Coroner attached inappropriate documents to its Motion for Summary Judgment. Specifically, the Simmons objected to the introduction of the Coroner's report, the Coroner's office day record, and the minute entries from juvenile court because the documents were not certified. Conversely, the Coroner avers that the documents qualify as pleadings or attachments to pleadings, which constitute competent summary judgment evidence.

This Court held that "[d]ocuments may be considered in support of a motion for summary judgment if they are attached to a pleading that is in the record." Hunt Petroleum Corp. v. Texaco, Inc. , 04-0729, p. 4 (La. App. 4 Cir. 12/1/04), 891 So.2d 36, 39. We reasoned that "[u]nder La.C.C.P. arts. 852 and 853, the documents filed with the School Board's motion for summary judgment were parts of the pleading, and under La.C.C.P. art. 966, were properly considered by the trial court when ruling on the motion." Id. See also Louisiana AG Credit, PCA v. Livestock Producers, Inc. , 42,072, p. 7 (La. App. 2 Cir. 4/4/07), 954 So.2d 883, 888.

The Simmons only attached excerpts from their depositions to oppose the Coroner's summary judgment. Crystal Simmons stated in her deposition that she "called a couple times to the coroner's office. I made sure that they had my name and my telephone number so they'll know in case any issues had come up or whatever they could call me." She then testified that this telephone call was "[m]aybe a couple weeks, like one or two weeks" after Eli died. This was the only telephone call she made to the Coroner's office. Crystal Simmons could not recall the name of the person she spoke with in the Coroner's office. Patrick Simmons testified that he called the Coroner's office a couple months after Eli died to request a copy of the autopsy report. He stated that he "made a couple of phone calls."

This Court held that when a defendant meets the initial burden of showing no genuine issues of material fact remain, then

"[t]he plaintiff may not satisfy this burden by resting on mere allegations or by filing self-serving conclusory affidavits which merely restate those allegations. The mere fact that the plaintiff contests a fact in her allegations is not sufficient to raise a genuine issue concerning those facts."

Hardison v. Byrne , 15-0111, p. 9 (La. App. 4 Cir. 12/9/15), 182 So.3d 1110, 1116 ; quoting Sims-Gale v. Cox Commc'ns of New Orleans , 04-0952, p. 5 (La. App. 4 Cir. 4/20/05), 905 So.2d 311, 314 ; quoting Guichard v. Super Fresh/Sav-A-Center, Inc. , 97-1573, pp. 4-5 (La. App. 4 Cir. 2/4/98), 707 So.2d 1013, 1015. "Once the mover properly supports its motion for summary judgment, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion." Sims-Gale , 04-0952, p. 6, 905 So.2d at 314. "Absence of corroborating evidence means that there is no genuine issue of material fact." Alexander v. Hancock Bank , 16-0662, p. 8 (La. App. 4 Cir. 2/8/17), 212 So.3d 713, 718.

Further, the Coroner alleges that it is immune from the Simmons' suit. La. R.S. 13:5713(L)(1) provides that "[l]iability shall not be imposed on an elected coroner or his support staff 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." Further, La. R.S. 8:658 states that "[n]o action shall lie against any cemetery authority relating to the remains of any person which have been left in its possession for a period of sixty days, unless a written contract has been entered into with the cemetery authority for the care of such remains." La. R.S. 9:1551(A)(2) states some of the duties of the Coroner's office: "[t]he coroner shall have and exercise custody over the remains of all persons who die within the parish and whose remains are abandoned, not claimed, or unclaimed by the person or persons authorized in R.S. 8:655, or by the person to whom the coroner has released the remains." Moreover, "every dead body of a human being lying within this state, and the remains of any dissected body, after dissection, shall be decently interred or cremated within a reasonable time after death." La. R.S. 8:651. Lastly, La. R.S. 8:661 provides that

Whenever any human remains have been in the lawful possession of any cemetery authority for a period of sixty days or more, and the relatives of or persons interested in the deceased person fail, neglect, or refuse for such periods of time, respectively, to direct the disposition to be made of the body, the body may be disposed of by the cemetery authority having lawful possession thereof, under and in accordance with such rules and regulations, if any, as may be made and promulgated by the governmental authority or authorities having jurisdiction over the matter.

Once the Coroner filed a supported Motion for Summary Judgment, the Simmons were required to produce evidence of a material factual dispute. The Simmons' deposition excerpts attached to their opposition do not contain testimony addressing their suffering as a result of the Coroner's burial of Eli's remains. Likewise, there was no documentation or evidence substantiating a genuine issue of material fact regarding the alleged outrageousness of the Coroner's actions by burying Eli's remains after holding the remains for 241 days. Further, it is undisputed that DCFS did not call the Coroner in regards to burying Eli's remains until 294 days after his death. The Coroner retained Eli's remains for 241 days prior to burying him. The Simmons failed to submit evidence sufficient to show that genuine issues of material fact remained following the Coroner's supported Motion for Summary Judgment. Given the uncorroborated evidence submitted by the Simmons and the duties legally bestowed upon the Coroner's office, we do not find that the trial court erred by granting the Coroner's Motion for Summary Judgment. The judgment of the trial court is affirmed. We pretermit the issue of whether the Simmons have a legal interest in Eli's remains in that we found the Coroner was entitled to summary judgment.

DECREE

For the above-mentioned reasons, we find that the Simmons failed to meet their burden of proof regarding genuine issues of material fact once the Coroner filed its supported Motion for Summary Judgment. As such, the judgment of the trial court is affirmed.

AFFIRMED

MCKAY, C.J., DISSENTS

I respectfully dissent from the majority in this matter and would reverse the judgment of the district court.

Arguably, there is a question if upon Eli's death the Louisiana Department of Children and Family Services lost the care custody and control of Eli's remains. Logically, the care custody and control of the child's remains would revert to the parents as the purpose of the Louisiana Department of Children and Family Services ended with the death of the child. While I would agree that the Coroner has a statutory right and obligation to dispose of the remains for the welfare of society benefiting the public at large through public health and public justice, it does not answer the glaring question as to who actually has the legal right to the remains of Eli. I believe that this fact is germane to the matter and needs resolution. This can only be determined by a full trial on the merits.

      Juvenile court proceedings were ongoing based on the removal of Eli and his three siblings from their home.

      Crystal Simmons previously stated that she called the Coroner's office a "couple" times, but then said she only called once.

      The Coroner's office qualifies as a cemetery authority pursuant to La. R.S. 8:1(8).


author: MOORE, J.

text:
    IN RE: COOPERATIVE ENDEAVOR AGREEMENT BETWEEN 42ND DISTRICT INDIGENT DEFENDER OFFICE AND 42ND JUDICIAL DISTRICT OFFICE OF DISTRICT ATTORNEY
    No. 52,393-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 7, 2018
    KENNETH P. HAINES, Counsel for First Appellant, Gary Evans, District Attorney
    ROBERT S. NOEL, II, Counsel for Second Appellant, Indigent Defender Board and Steven R. Thomas
    DANIELLE E. DAVIS, BRUCE HAMILTON, Counsel for Amici Curiae, Southern Poverty Law Center and American Civil Liberties Union Foundation of La.
    Before BROWN, MOORE, and GARRETT, JJ.
   MOORE, J.

The District Attorney of DeSoto Parish and the Public Defender of DeSoto Parish appeal a judgment that declared unconstitutional and annulled the parties' Cooperative Endeavor Agreement ("CEA") to allocate some of the fees from the District Attorney's traffic diversion program to fund the Public Defender's office. The District Attorney has also filed a motion to dismiss the appeal. Southern Poverty Law Center and the American Civil Liberties Union have filed an amici curiae brief defending the judgment. For the reasons expressed, we affirm the judgment and deny the motion to dismiss the appeal.

FACTUAL BACKGROUND

Every judicial district in the State of Louisiana has an indigent defender fund that receives $45.00 for each defendant who is "convicted after a trial, a plea of guilty or nolo contendere, or after forfeiting bond[,]" La. R.S. 15:168 B(1). In early 2017, however, the District Attorney of DeSoto Parish (hereinafter, "the District Attorney") initiated an extensive pretrial diversion program whereby he would decline to prosecute certain nonviolent offenders if they took part in intensive rehabilitation and paid a fee directly to the District Attorney. As a result, court cost disbursements dropped about 80%. The district defender testified that if all traffic tickets were diverted, his revenue would drop 96%.

To avert the funding crisis, the Public Defender and the District Attorney executed the CEA, on March 19, 2018. The main purpose of the CEA was to mirror the scheme of R.S. 15:168 and give the Public Defender $45.00 out of every fee paid to the District Attorney's pretrial diversion program. The CEA also obligated the Public Defender to apply this money to maintain an adequate level of attorney and support staff that is competent, professional and diverse, and to make reasonable efforts to employ African-American attorneys to assist in the defense of DeSoto Parish criminal defendants. Finally, the CEA provided that any violation of its terms would constitute immediate grounds for termination, with 30 days' written notice.

When he learned about the CEA, 42nd Judicial District Court Judge Charles Adams issued a sua sponte order in State v. Bayles , the first criminal case on his docket. This order directed the Public Defender and the District Attorney to show cause why the Public Defender's office should not be removed from Bayles , and from "all other cases" involving the Public Defender, "due to a conflict of interests."

The Public Defender and the District Attorney filed separate motions to recuse Judge Adams. After a brief hearing on April 3, Judge Adams rendered an opinion denying both motions, but also stating his views on the merits of the situation. He relied on the court's independent duty to ensure that criminal defendants receive a fair trial that does not contravene the Sixth Amendment, Wheat v. United States , 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), specifically the right to conflict-free counsel, Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the legislative provision for a public defense system "free of conflicts of interest," R.S. 15:142 B(2). He found that the CEA violates Wheat's prohibition of defense counsel having an ongoing relationship with the opposing party; the Rules of Professional Conduct regarding conflicts of interest, RPC 1.8 (f)(2) ; a State Constitutional provision that the district attorney cannot appear, plead, or in any way defend any criminal prosecution, La. Const. art. V, § 26 (C); and that it potentially violates a State Constitutional prohibition against donating public funds, La. Const. art. VII, § 14 (A). Citing his paramount duty to protect the integrity of the criminal justice system, which he would not "abdicate" because justice was not "for sale," Judge Adams refused to recuse himself.

Apparently Judge Adams had a change of view, because three days later, April 6, the parties returned to court to argue their motions to recuse before ad hoc Judge Jimmie Peters, retired from the Third Circuit. Steven Thomas, the district defender, testified that the legislature was considering HB 66, which would disburse diversion money in DeSoto Parish the same as traffic ticket money, and that Judge Adams had testified in support of this bill. Thomas did not think this action created a conflict of interest, but he felt that Judge Adams's ruling on the motions to recuse was, in effect, a ruling on the merits, exposing some bias. Kem Jones, the District Attorney's chief investigator, testified that Judge Adams had also spoken in favor of HB 66 at a La. District Attorneys Association meeting. Judge Peters rendered a long opinion delving into the background and the merits of the funding dilemma, but ruling that Judge Adams's advocacy of HB 66 did not rise to the level of bias or personal interest. He further found "absolutely no evidence" of bias, prejudice or personal interest on the part of the other 42nd Judicial District Court judge, Amy Burford McCartney.

The District Attorney then filed a motion to quash Judge Adams's original order and rule to show cause, on grounds that district attorneys have sole charge and control of criminal prosecutions, and are supervised only by the attorney general and not subject to the authority of district courts. In fact, the landmark case of State v. Citizen , 2004-1841 (La. 4/1/05), 898 So.2d 325, prohibited district courts from ordering funding for indigent defense. The Public Defender joined in this motion.

Judge McCartney issued, sua sponte, an order creating a case called In re: Cooperative Endeavor Agreement Between the 42nd Judicial District District Attorney's Office and the 42nd Judicial District Public Defender's Office , with the same docket number as State v. Bayles .

ACTION OF THE DISTRICT COURT

The District Attorney and the Public Defender argued the motion to quash on May 31. Judge McCartney wrote a lengthy opinion, borrowing heavily from Judges Adams's and Peters's prior opinions. She cited the inherent power of courts over all criminal proceedings, La. C. Cr. P. arts. 16, 17 ; the Constitutional guarantee of a fair trial, Const. amend. VI; and the court's duty to prevent conflicts of interest, Wheat v. United States , supra . She found that the CEA "speaks for itself," creating prohibited obligations between the parties; she dismissed the District Attorney's argument as "astounding." Further, she found a violation of RPC 1.8 (f)(2), no application of La. Const. art. VII, § 14, and an "implication" of RPC 3.3 (a)(1)-(2). She concluded that legislative action is needed to address the issue of pretrial diversion, and warned of "increasingly intrusive measures" by the judiciary to address funding issues. She denied the motion to quash. Finally, she declared the CEA "unconstitutional, unlawful, against public policy, and without legal effect."

The District Attorney and the Public Defender have both appealed.

THE PARTIES' POSITIONS

The District Attorney urges the court erred as a matter of law in declaring the CEA to be unconstitutional, unlawful, against public policy, and without legal effect. He advances two arguments.

First, he shows that district attorneys have the constitutional authority to conduct pretrial diversion programs, State v. Franklin , 2013-1489 (La. App. 4 Cir. 6/11/14), 147 So.3d 231, writ denied , 2014-1326 (La. 2/13/15), 159 So.3d 460 ; state agencies have the constitutional authority to use public funds for programs of social welfare and the aid and support of the needy, La. Const. art. VII, § 14 (B); and the state has an obligation to provide indigent defendants with trial counsel, U.S. Const. amend. VI, La. Const. art. VII, § 13. He argues that the CEA specifically recognized that successful performance of the District Attorney's duty to prosecute cases "was contingent upon an effective Public Defender's Office capable of delivering competent and professional representation[,]" but that the diversion program may deprive the Public Defender of needed funds. In effect, the CEA merely replaces the $45 per ticket that would have gone to the Public Defender had the matter been prosecuted. There is no "sharing of funds," and there is in fact a legitimate use of public funds for social welfare. Further, the state and its political subdivisions are expressly permitted to enter cooperative endeavors for a public purpose, La. Const. art. VII, § 14 (C), and "public purpose" should be broadly construed, City of Shreveport v. Chanse Gas Corp. , 34,958 (La. App. 2 Cir. 8/22/01), 794 So.2d 962, writs denied , 2001-2657, -2660 (La. 1/4/02), 805 So. 2d 209.

Second, the district court lacked jurisdiction to issue a declaratory judgment without a case or controversy before it. Jurisdiction is limited to "civil and criminal matters," La. Const. art. V, § 16, and "an action or proceeding," La. C. C. P. art. 1. No party to the CEA ever filed a pleading requesting that their rights be enforced, determined or otherwise adjudicated; in effect, the District Attorney urges, the court's order was an unauthorized judicial challenge to the CEA. Moreover, no branch of government can exercise power belonging to another, La. Const. art. II, § 2, so the district court has no authority to regulate district attorneys or public defenders, Newman Marchive P'ship v. City of Shreveport , 2007-1890 (La. 4/8/08), 979 So.2d 1262. Although the district court has a duty to ensure that indigent defendants receive effective assistance of counsel, Wheat v. United States , supra , no defendant has alleged a conflict of interest. The Supreme Court has explicitly denied the courts' authority to order funding for indigent defense, State v. Citizen , supra , and the district court's action is analogous to that proscribed in Citizen . Finally, the law expressly allows public defenders to receive "revenue passed through by state agencies" and "revenue from criminal court funds," La. R.S. 15:161 G(1), (2). The CEA served the spirit of the law. The District Attorney concludes that the judgment is invalid and should be summarily reversed.

The Public Defender raises three assignments of error. First, he contends the district court lacked standing to intervene and declare the CEA unconstitutional. The reasoning largely mirrors the District Attorney's second argument, and emphasizes that the court made "no attempt to ascertain" whether the defendant, Bayles, wanted his attorney dismissed prior to this "action."

Second, the court erred in finding the CEA unconstitutional. The Public Defender's funding comes from (1) writing traffic tickets, (2) prosecution of those tickets, and (3) collection, once costs have been imposed, La. R.S. 15:168. The CEA serves the same purpose, except it distributes funds through the diversion program; the Public Defender urges this is a valid transfer, under La. Const. art. VII, § 14 (B). In all events, prosecutorial discretion determines the validity of the Public Defender's office, and in no event is the District Attorney representing defendants in the 42nd Judicial District. The Public Defender adopts the District Attorney's position that "use of diversion funds is specifically allowed and not a violation of the law."

Third, the court erred in finding the CEA violated the Sixth Amendment by creating a conflict of interest between the Public Defender and his clients. A public defender, by necessity, commingles all the revenue he receives, whether through fine or diversion, but is guided by RPC 5.4 (c) to maintain his professional independence. The Public Defender concludes that the court was plainly wrong to find that the CEA conferred on the District Attorney control over the Public Defender's office; he submits that the judgment is invalid and should be summarily reversed.

DISCUSSION

The Court's Authority

The District Attorney's first argument, and the Public Defender's second assignment, challenge the district court's jurisdiction or standing to rule on the legality of the CEA. In general, judges have the power to issue all "needful writs, orders, and process in aid of the jurisdiction of the court." La. Const. art. V, § 2. Courts have the jurisdiction and power over criminal proceedings that are conferred upon them by the Constitution and statutes, except as restricted, enlarged or modified by the Code of Criminal Procedure. La. C. Cr. P. art. 16. A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law. La. C.C.P. art. 191 ; see also, La. C. Cr. P. art. 17. Specifically, this includes the power "by the court on its own initiative" to nullify a contract that violates a rule of public order. La. C.C. art. 2030. This is because the law deems any juridical act in derogation of laws enacted for the protection of the public interest to be an absolute nullity. La. C.C. art. 7.

This court has nullified attorney-client contracts that are found to violate the Rules of Professional Conduct. In Skannal v. Jones Odom Davis & Politz , 48,016 (La. App. 2 Cir. 9/25/13), 124 So.3d 500, writ denied , 2013-2887 (La. 2/21/14), 134 So.3d 584, the contract provided for hourly fees throughout the course of litigation to recover the clients' property and mineral rights, but also granted the attorney the unilateral right to elect a one-third contingency fee. This court invalidated the contract on grounds that it effectively eliminated risk of outcome of the matter, in violation of RPC 1.5 (a)(8) and (c). Quoting the landmark case of Leenerts Farms v. Rogers , 421 So.2d 216 (La. 1982), we affirmed that the RPC are "the most exacting of laws established for the public good."

In Soderquist v. Kramer , 595 So.2d 825 (La. App. 2 Cir. 1992), the attorney prepared a settlement agreement that not only resolved the clients' claims against their opponent in the underlying litigation but also waived any claims against the attorney. The clients admitted signing the agreement, but still wanted to pursue malpractice claims against the attorney. This court invalidated the settlement agreement on grounds that it failed to advise the clients in writing that independent representation would be appropriate to determine if the attorney's and clients' interests were in conflict, RPC 1.7 (b)(1), 1.8 (h). This court affirmed that the RPC have the force and effect of substantive law, citing City of Baton Rouge v. Stauffer Chem. Co. , 500 So.2d 397 (La. 1987), and Succession of Wallace , 574 So.2d 348 (La. 1991).

On this statutory and jurisprudential landscape, the district court did not err in asserting the standing and jurisdiction to consider whether the CEA violated a law intended for the protection of public interest.

Violation of Constitution and RPC

The Public Defender's third assignment of error, and a portion of the District Attorney's first argument, urge that the district court erred in finding that the CEA violated the constitution by creating a conflict of interest between the Public Defender and his clients. As noted, the Public Defender concedes that he must commingle all the revenue he receives, whether from fines or diversion fees, but contends that allegiance to RPC 5.4 (c) will prevent his office from allowing the "person * * * who pays the lawyer * * * to regulate the lawyer's professional judgment."

Certain overriding principles must be recognized. The Sixth Amendment guarantees the accused the right to have "the Assistance of Counsel for his defence." This has long been construed as guaranteeing conflict-free counsel. Glasser v. United States , 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Strickland v. Washington , supra ; State v. Tensley , 41,726 (La. App. 2 Cir. 4/4/07), 955 So.2d 227, writ denied , 2007-1185 (La. 12/7/07), 969 So.2d 629.

Second, no district attorney or assistant district attorney shall appear, plead, "or in any way defend or assist in defending any criminal prosecution or charge." La. Const. art. V, § 26 (C); La. C. Cr. P. art. 65. The CEA obviously sends money directly from the District Attorney's diversion fund to the Public Defender and thus appears to "defend or assist in defending" a criminal prosecution.

Third, a lawyer "shall not accept compensation for representing a client from one other than the client" unless there is "no interference with the lawyer's independent or professional judgment or with the client-lawyer relationship." RPC 1.8 (f). The money sent from the District Attorney's diversion program to the Public Defender to cover indigent defense is compensation from "one other than the client" and thus must adhere to the "no interference" rule. As a matter of law, the CEA does not meet the "no interference" rule: it allows the District Attorney to withdraw funding, after 30 days' notice, for subjective evaluations of competence, professionalism or diversity. These provisions, with the Public Defender's financial reliance on the District Attorney, create leverage over the Public Defender's operation, despite the CEA's recitation that the agreement would in no way modify the contradictory nature of the parties' relationship or the ethical duties each owes his clients.

The district court did not err in finding violations of the constitution and RPC.

Legality of the CEA

The Public Defender's second assignment of error, and a portion of the District Attorney's first argument, urge that the CEA was indeed legal, either as a use of public funds for programs of social welfare for the aid and support of the needy, La. Const. art. VII, § 14 (B), as a cooperative endeavor with a private association, corporation or individual for a public purpose, La. Const. art. VII, § 14 (C), or as a mere replication of the funding scheme established by La. R.S. 15:168 B(1). The appellants contend that not only is the use of diversion funds specifically allowed, but the CEA is an effective means of averting fiscal crisis for indigent defense.

This argument is not without certain appeal. There is always some tension in the effort to balance the state's duty to provide indigent defense with the obligation to pay for it. State v. Citizen , supra. The facts that indigent defense must be conflict-free and that the district attorney cannot assist in the defense of any criminal prosecution only make the attempted balance more precarious.

An obligation cannot exist without a lawful cause. La. C.C. art. 1966. The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy. La. C.C. art. 1968. A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. La. C.C. art. 2030. This court has found, with the district court, that the CEA violates the Constitutional guarantee of conflict-free counsel, the Constitutional prohibition against the district attorney assisting in the defense of a criminal prosecution, and the RPC's prohibition of interference with the attorney's independent or professional judgment.

It is of no consequence that the means or mechanism chosen to reach the prohibited result would, in other circumstances, be legal. In J-W Operating Co. v. Olsen , 48,756 (La. App. 2 Cir. 1/15/14), 130 So.3d 1017, writ denied , 2014-0313 (La. 4/11/14), 137 So.3d 1217, this court found that certain assignments of interests in mineral leases were absolutely null because the assignor no longer owned the interests. In Alco Collections Inc. v. Poirier , 95-2582 (La. App. 1 Cir. 9/27/96), 680 So.2d 735, writ denied , 96-2628 (La. 12/13/96), 692 So.2d 1067, the First Circuit found that an assignment of debt to a collection agency, on a contingency basis, was absolutely null as an unauthorized practice of law. In Louisiana Claims Adjustment Bureau Inc. v. State Farm Ins. Co. , 38,709 (La. App. 2 Cir. 6/23/04), 877 So.2d 294, writ denied , 2004-1890 (La. 10/29/04), 885 So.2d 595, this court found that an act of mandate from an insurance company to a third-party adjuster was absolutely null as an unauthorized practice of law. In Baker v. Maclay Properties Co. , 94-1529 (La. 1/17/95), 648 So.2d 888, the Supreme Court held that the fee-splitting provision in a contract between an out-of-state real estate broker and an in-state broker was absolutely null because it followed a statute that violated the Privileges and Immunities clause.

The common thread in these cases is that assignments of mineral leases, assignments of uncollected debt, acts of mandate from an insurer to an adjuster, and fee-splitting agreements between real estate brokers are facially valid and, in most situations, perfectly legal. However, if the cause is found to be unlawful, the obligation itself is deemed an absolute nullity. By the same reasoning, the use of funds for social welfare, a cooperative endeavor with a private association for a public purpose, or a private disbursement scheme that mimics a statute, though facially valid, cannot stand if the cause is found to produce a result prohibited by law or against public policy. Such is the case here.

With this conclusion, however, we do not accept the major premise of the amici curiae's brief, that the reliance on fines and court costs to generate profits for government and for private actors is an "illegal or imprudent court practice." No one has yet contended that the disbursement scheme of R.S. 15:168 B(1) is unconstitutional. Moreover, while the legislature did not expressly create diversion programs, it has incorporated them into several statutes and disbursed their proceeds to various programs. If the legislature considered such programs illegal or imprudent, this would be no way to show it. We simply decline to join the amici's plebiscite decrying Louisiana's approach to funding indigent defense.

Motion to Dismiss the Appeal

Three weeks after oral argument, the District Attorney filed a motion and order to dismiss the appeal as moot, citing his own letter to the Public Defender terminating the CEA "effective immediately." As the District Attorney did not move to supplement the record with the termination letter, the letter appears to violate the CEA's requirement of a 30-day notice of termination, and the other appellant, the Public Defender, has not moved to dismiss the appeal, we deny the motion to dismiss. URCA 2-8.4.

CONCLUSION

For the reasons expressed, we find that the district court had jurisdiction to consider the legality of the CEA; that the CEA violated constitutional provisions guaranteeing conflict-free counsel and prohibiting the district attorney from assisting in criminal defense, as well as a professional rule requiring the public defender to use independent or professional judgment; and that the facial validity of the CEA as a use of public funds for programs of social welfare, as a cooperative endeavor for a public purpose, or as a replication of a funding statute do not rescue the CEA from its constitutional defects. The district court did not err in declaring the CEA unconstitutional, unlawful, against public policy, and without legal effect. The judgment is therefore affirmed. The motion to dismiss the appeal is denied. Appellate costs are not assessed. La. R.S. 13:4521, C.C.P. art. 1920.

JUDGMENT AFFIRMED; MOTION TO DISMISS THE APPEAL DENIED.

      The appellate record contains no judgment or order rescinding Judge Adams's initial judgment or appointing Judge Peters to hear the motions ad hoc.

      HB 66 was referred to the committee on the judiciary on March 12, 25 days before the hearing with Judge Peters, but it did not advance out of committee.

      In all subsequent filings, the parties (and the district court) have inverted the parties' names to list the Public Defender first.

      "A lawyer shall not accept compensation for representing a client from one other than the client unless * * * there is no interference with the lawyer's independence or professional judgment or with the client-lawyer relationship."

      La. Const. art. VII, § 14 (C), states: "For a public purpose, the state and its political subdivisions or political corporations may engage in cooperative endeavors with each other, with the United States or its agencies, or with any public or private association, corporation, or individual."

      "A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; [or] (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]"

      He submits that the attorney general has approved a similar "transfer" from a city court to an indigent defender office, In re John Di Giulio , La. Att. Gen. Op. 11-0243A, 2012 WL 6888776.

      La. Const. art. VII, § 14 (B), states in pertinent part: "Nothing in this Section shall prevent (1) the use of public funds for programs of social welfare for the aid and support of the needy[.]"

      "A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services."

      For example, La. R.S. 16:17 E permits the district attorney to "assess and collect a reasonable fee from participants in pretrial diversion" to support and maintain victims assistance programs; La. R.S. 15:242 creates a reporting requirement for "persons placed into a pretrial diversion program following an arrest for a violation of R.S. 14:98"; and La. R.S. 15:244, enacted in 2018, creates a special pretrial diversion program for military veterans, "in addition to any existing pretrial diversion program."


author: Judge Roland L. Belsome

text:
    Neville KIRT; Alvin Kirt; and Lamont Kirt, Individually and on Behalf of Elaine Kirt, Deceased v. Rebecca C. METZINGER, M.D.; Theodore C. Strickland, III, M.D.; Administrators of The Tulane Educational Fund d/b/a Tulane; Pauline Taquino, CRNA; Gayle Martin, CRNA; Parish Anethesia Associates, Ltd., A Professional Medical Corporation
    NO. 2018-CA-0158
    Court of Appeal of Louisiana, Fourth Circuit.
    September 7, 2018
    Jeffrey A. Mitchell, Hugo L. Chanez, THE COCHRAN FIRM, 3850 N. Causeway Blvd., Suite 1500, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT.
    C. William Bradley, Jr., Benjamin J. Biller, BRADLEY MURCHISON KELLY & SHEA LLC, 1100 Poydras Street, Suite 2700, New Orleans, LA 70163--2700, COUNSEL FOR DEFENDANT/APPELLEE.
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods)
   Judge Roland L. Belsome

This is a medical malpractice suit. The appeal is taken from the trial court's grant of an exception of prescription. For the reasons that follow, we find this Court lacks jurisdiction. Therefore, the appeal is dismissed without prejudice and the matter is remanded.

Elaine Kirt died On September 28, 2010, after receiving medical care from the defendants. On September 23, 2011, the plaintiffs, Ms. Kirt's sons, filed a request for the formation of a medical review panel. Initially three defendants were named in that request. Additional defendants were added on October 17, 2011 and November 17, 2011. Ultimately, six defendants had been named and the plaintiffs were required to timely remit payment of $100 per defendant to the Louisiana Patient's Compensation Fund ("LPCF") in accordance with La. R.S. 40:1299.47(A)(1)(c). Plaintiffs only remitted $500 to the LPCF.

Subsequent to the medical review panel opinion, the plaintiffs filed a Petition for Damages alleging that the defendants' negligence caused Elaine Kirt's death. The original three defendants were dismissed on summary judgment motions. The remaining three defendants filed an exception of prescription challenging the inadequate payment of fees to the LPCF. The defendants also raised the issue that the claims against the later added defendants were prescribed because they had been filed more than a year after Elaine Kirt's death.

On November 15, 2017, the trial court rendered judgment granting the exception of prescription. Upon this Court's review of that judgment an issue as to jurisdiction has been identified. Prior to reviewing the merits of an appeal, this Court must establish that subject matter jurisdiction exists.

Case law has interpreted the statutes on final judgments as requiring specific decretal language. When addressing this issue in Moon v. City of New Orleans , this Court explained:

"A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled." A final judgment is one that determines the merits in whole or in part and is identified as such by appropriate language. "A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied." "The result decreed must be spelled out in lucid, unmistakable language. The quality of definiteness is essential to a proper judgment." "The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment."

The judgment in this case reads as follows: "IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant's Exception of Prescription is GRANTED ." In this case there were multiple defendants that excepted on the grounds of prescription. Yet, the decretal language indicates a single defendant and provides no party names. Additionally, the judgment is silent as to the relief granted. Thus, this judgment cannot be considered a final, appealable judgment. In certain instances this Court has exercised its discretion and converted appeals of non-appealable interlocutory judgments to applications for supervisory writs if the appeal was filed within the 30-day period allowed for an application for supervisory writ. A review of the record reveals that this appeal was not filed within the time delay allowed for an application for supervisory writ. Accordingly, this Court is unable to invoke its supervisory jurisdiction.

The appeal is dismissed without prejudice and the matter is remanded for further proceedings.

APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED

      Moon v. City of New Orleans , 2015-1092, pp. 5-6 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425 (citations omitted).

      In re Med. Review Panel of Williams v. EMSA Louisiana, Inc., 2015-1178, pp. 2-3 (La.App. 4 Cir. 10/21/16), 203 So.3d 419, 423 (citing Barham, Warner & Bellamy, L.L.C. v. Stategic Alliance Partners, L.L.C., 2009-1528, p. 4 (La.App. 4 Cir. 5/26/10), 40 So.3d 1149, 1152 ).

      The judgment was signed on November 15, 2017. The delay for applying for a new trial expired on November 22, 2017, and the motion for appeal was filed on January 12, 2018.


author: WILLIAMS, J.

text:
    Dr. Reinhold MUNKER, Plaintiff-Appellant v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY SYSTEM, Defendant-Appellee
    No. 52,214-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 19, 2018.
    HILBURN & HILBURN, APLC, Shreveport, By: Cary A. Hilburn, Counsel for Appellant
    WEEMS, SCHIMPF, HAINES, SHEMWELL & MOORE (APLC), Shreveport, By: Kenneth P. Haines, Special Assistant Attorney General, By: Amanda D. Brotherton Todd, Counsel for Appellee
    Before WILLIAMS, MOORE, and COX, JJ.
   WILLIAMS, J.

The plaintiff, Dr. Reinhold Munker, appeals a summary judgment dismissing his claims against the defendant, Board of Supervisors of Louisiana State University System. The plaintiff also challenges the district court's denial of his motion for partial summary judgment. For the following reasons, the district court's judgment is reversed in part, affirmed in part and remanded to the district court for further proceedings.

FACTS

The plaintiff, Dr. Reinhold Munker, was a tenured professor of medicine at Louisiana State University Medical Center in Shreveport, Louisiana. He was officially employed by the defendant, Board of Supervisors of Louisiana State University System ("the Board"). The plaintiff was a professor/researcher in the field of hematology and oncology.

On the morning of August 18, 2015, the department of hematology and oncology held a staff meeting. At the conclusion of the meeting, Dr. Glenn Mills, the director of the Feist-Weiller Cancer Center, and Dr. Gary Burton, an employee in the hematology/oncology department, were having a discussion. Dr. Mills stated that the plaintiff approached them and accused Dr. Burton of not wanting him (the plaintiff) to conduct research. According to Dr. Mills, the plaintiff angrily stated, "Well then, I'll resign and I'll go to Minnesota or Washington where they appreciate me and I can do research. I was brought here to do research." Dr. Mills then angrily responded, "I accept your resignation. I'd like a letter at the end of the day giving me your resignation date."

Shortly thereafter, a series of electronic mail ("email") was exchanged between the plaintiff and Dr. Mills. The emails provided as follows:

TUESDAY AUGUST 18, 2015
Dr. Mills to the plaintiff:
9:29 a.m.
I will accept your letter of resignation today. You may set the effective date but no longer than October 1, 2015.
If you wish to remain a faculty member then I expect you to fully perform your faculty duties including teaching, outpatient clinics, supervision of trainees and research. (Emphasis added).
The plaintiff to Dr. Mills:
9:44 a.m.
As you know, a letter of resignation has to be in writing. I mentioned that serious issues in the department and section have to be fixed. (Emphasis added).
Dr. Mills to the plaintiff:
10:48 a.m.
I was following up on your statement to me and Dr. Burton you wished to resign.
If you have changed your mind that is fine. (Emphasis added).
However, I expect full participation as a faculty [member] including teaching the students, residents, fellows, and in your assigned clinics.
These are difficult times and I need faculty who will work collaboratively & want to see the [LSU Feist-Weiller Cancer Center] succeed.
The plaintiff to Dr. Mills:
11:18 a.m.
I do not see efforts made by the LSU leadership to succeed. By German standards, senior faculty should write manuscripts, not dream about moving into the private domain. Will be happy to share my thoughts.
* * *
Other institutions (Seattle, Mayo Clinic) may want [sic] that I send my [curriculum vitae]. You need common sense, stop complaining. If Dr. Marion has initiated my removal from tenure, a lot of people should be asked to leave.
Dr. Mills to the plaintiff:
11:25 a.m.
Stop these emails. You are free to leave, send me your resignation. You will not tell me what to do. Further ranting emails such as these will not be tolerated. (Emphasis added).

Thereafter, Dr. Mills included Dr. Jay Marion, the department chairman, and Dr. Robert Barish, the chancellor, in the email chain. The emails were as follows:

Dr. Marion to Dr. Barish:
11:57 a.m.
Dr. Barish,
Dr. Munker claimed in his response to Dr. Mills that I was initiating his "removal from tenure." I would like to clarify that this is not the situation [.] (Emphasis added).
* * *
I spoke with Dr. Mills and with Dr. Eggerstedt regarding what options existed for a tenured faculty who refused to participate in ACGME[ ] required teaching and student teaching. After our discussions, it was clear that Dr. Mills may have reminded Dr. Munker that tenured faculty still have to be mindful of their responsibilities (I was not present when they talked, but I know what Glenn and I discussed prior to his meeting with Dr. Munker.)
I wanted to clarify that I have not "initiated" his job termination or "removal from tenure" as he suggests. He was only reminded that tenure doesn't relieve an individual of their responsibilities and that tenured faculty can still be terminated for job abandonment. (Emphasis added).
Dr. Mills informed me that Dr. Munker got into an argument with Dr. Burton this morning regarding other LSU related issues. It was apparently at that time Dr. Munker stated that he "wished to resign." (Emphasis added).
I personally support the way this was handled by Dr. Mills. Dr. Munker can play by the rules or he can resign if he wishes . He should not be allowed to disrupt an entire section. (Emphasis added).
* * *
Dr. Mills to Dr. Barish:
3:52 p.m.
Sorry that Dr. Munker has involved you in this. Jay is correct, Dr. Munker got into an argument with initially Dr. Burton then me at our research meeting and threatened to resign. I simply took him up on his offer and said he could give me a letter today. Although as you can see below I clearly said that he could remain but he does need to fulfill his faculty obligations. Not sure what he wants to do at this time. Will keep you informed, although he will probably do that as well. (Emphasis added).

Subsequently, on Sunday, August 23, 2015, Dr. Mills sent an email to faculty members, including the plaintiff, regarding registering for a group meeting to be held in October 2015. The plaintiff responded to the email as follows, "So Oct. 1st is our preferred day for me to leave? " Thereafter, the following emails were exchanged:

Dr. Mills to the plaintiff:
2:19 p.m.
I prefer you to stay but if you wish to leave then we will work out your departure date. I still want you to schedule a meeting to see me. (Emphasis added).
The plaintiff to Dr. Mills:
3:51 p.m.
If you want to discuss research, any time in the afternoon. If you want to discuss the conditions for me to stay, I will get a lawyer and/or a witness.

Later that afternoon, the plaintiff sent another email to Dr. Mills which contained various complaints about the department and comparing LSU standards to "German academic law." Dr. Mills did not respond. On August 27, 2015, the plaintiff received a "Notice of Immediate Dismissal." The notice, which was signed by Lisa Ebarb, Executive Director, Human Resources Management, provided:

On August 18, 2015, Dr. Glenn Mills accepted your verbal resignation and confirmed it in writing at 9:29 on the same date. At that time, it was thought that a notice/transition period to end no later than October 1st might be appropriate. It is now apparent that a notice/transition period will not be fruitful. Accordingly, your resignation is effective at close of business today.
Please contact Human Resources regarding your benefits, which may include retirement benefits, and make arrangements with your department head to vacate your office and clear campus.

The plaintiff made the following handwritten notation on the letter: "This letter does not correspond to the truth. Therefore, I am not willing to accept his letter. Thank you." The notation was signed by the plaintiff.

Thereafter, Carolyn Winner, of the human resources department, sent an email to Drs. Marion and Mills, confirming that the letter had been hand-delivered to the plaintiff in the presence of the cancer center's business manager and a university police officer. The email also informed the recipients that the plaintiff's computer access, identification badge and parking access had been disabled, his keys and identification badge had been confiscated by security, and the plaintiff had been "advised that he is not to return to campus without contacting Human Resource Management for an approved appointment." Dr. Mills responded, "Thank you."

On December 4, 2015, the plaintiff filed this lawsuit against the Board, alleging that he was "terminated without prior notice and without cause." The plaintiff also alleged as follows:

* * *
8.
As a tenured member of the faculty, Plaintiff has a property interest in employment protected by the procedural due process provisions of the Fourteenth Amendment to the United States Constitution and Article 2 of the Louisiana Constitution.
* * *
11.
Because Dr. Munker was terminated without notice and without opportunity to defend himself, the termination is an absolute nullity. He should be restored to his position with full back pay and benefits.
12.
Dr. Munker is also entitled to a monetary award of damages for the injury to his personal and professional reputation caused by the unlawful termination of his employment.
* * *

The defendant filed a general denial of the petition and prayed for a jury trial. Thereafter, on July 14, 2017, the plaintiff filed a motion for partial summary judgment, alleging that he was "entitled to a judgment declaring that there was no lawful termination of his employment for the following reasons: (1) [he] did not resign; (2) his employment was terminated against his will by a person who did not have termination authority; and (3) he was terminated without procedural due process." Attached to his motion for summary judgment, the plaintiff included numerous exhibits, including copies of the email exchanges between him and Dr. Mills, the letter signed by Ms. Ebarb, the LSU-Shreveport Faculty Handbook, the Bylaws and Regulations of the Board and excerpts from the deposition of Dr. Mills.

On the same day, the defendant filed a motion for summary judgment, or in the alternative, partial summary judgment, seeking a determination that the plaintiff resigned. The defendant included various exhibits, including the plaintiff's petition, excerpts from the depositions of the plaintiff and Dr. Mills, and an affidavit executed by Dr. Gary Burton, who attested that he was "personally present when Dr. Reinhold Munker gave his verbal resignation to Dr. Glenn Mills and heard Dr. Mills accept the resignation."

Following a hearing, the district court denied the plaintiff's motion for partial summary judgment and granted summary judgment in favor of the defendant. The court stated:

* * *
Evidently, [it is] pretty obvious that a verbal statement was made. Did not see anywhere where [the plaintiff] denied having made that verbal statement. The only argument is that according to the handbook and policies, that wasn't sufficient to constitute a resignation. So, there's no genuine issue of, in my mind, that the statement was made by [the plaintiff] that he was going to resign . There's an affidavit to that affect, as well as deposition testimony by two other doctors, but no denial of that statement. (Emphasis added).
* * *
The question then becomes whether or not his resignation - statement that I will resign is sufficient or should be deemed a resignation, and the policies of the, written policies indicate that it should be in writing and tendered to a certain individual.
* * *
I do deem his statement, oral statement that he will resign being sufficient and that the University did take him at his word and issued a, I guess, a written acceptance via email that his resignation was accepted and effective on a particular date. (Emphasis added).
* * *

The plaintiff appeals.

DISCUSSION

The plaintiff contends the district court erred in granting summary judgment in favor of the defendant and denying his motion for partial summary judgment. He argues that the evidence established that he did not resign; he was involuntarily terminated via the "notice of immediate dismissal." According to the plaintiff, the emails submitted by the defendant demonstrated that he "threatened to resign"; however, they did not show that he had the requisite intent to actually do so. Further, the plaintiff argues that his failure to submit a written letter of resignation, which was required by the Board's policy, further shows that he did not intend to resign. Therefore, summary judgment was not appropriate because intent was a material fact in dispute.

A summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the district court's determination of whether summary judgment is appropriate, i.e. , whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880.

At the time the instant lawsuit was filed, La. C.C.P. art. 966 provided, in pertinent part:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed[.]
* * *
(B)(2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. * * *
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
* * *

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Hines v. Garrett , 2004-0806 (La. 6/25/04), 876 So.2d 764.

When a motion for summary judgment is made and supported as provided in La. C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in La. C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B) ; Larson v. XYZ Ins. Co. , 2016-0745 (La. 5/3/17), 226 So.3d 412. Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Larson , supra ; Richard v. Hall , 2003-1488 (La. 4/23/04), 874 So.2d 131.

In ruling on a motion for summary judgment, the district judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett , supra . Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Willis v. Medders , 2000-2507 (La. 12/8/00), 775 So.2d 1049 (per curiam).

The employer-employee relationship is a contractual relationship. As such, an employer and employee may negotiate the terms of an employment contract and agree to any terms not prohibited by law or public policy. Quebedeaux v. Dow Chemical Co. , 2001-2297 (La. 6/21/02), 820 So.2d 542 ; Fletcher v. Wendelta, Inc. , 43,866 (La. App. 2 Cir. 1/14/09), 999 So.2d 1223, writ denied , 2009-0387 (La. 4/13/09), 5 So.3d 164.

In the instant case, the plaintiff was a tenured professor, rather than an at-will employee. The historical purpose of tenure, which originated in higher education, was the protection of academic freedom by preventing arbitrary or repressive dismissal. Thorne v. Monroe City Sch. Bd. , 542 So.2d 490 (La. 1989) ; Stanton v. Tulane Univ. of La. , 2000-0403 (La. App. 4 Cir. 1/10/01), 777 So.2d 1242, writ denied , 2001-0391 (La. 4/12/01), 789 So.2d 597 ; Schalow v. Loyola Univ. of New Orleans , 1994-0797 (La. App. 4 Cir. 11/30/94), 646 So.2d 502 ; Smith v. Bd. of Supervisors for the Univ. of La. Sys. , 2013-5505, 2015 WL 10663156 (E.D. La. 12/11/15) (unpublished).

In Smith , supra , the plaintiff was a tenured associate professor at the University of New Orleans. He filed a lawsuit alleging that the Board had denied him due process and had breached his contract of tenure when it terminated him. The Board filed a motion for summary judgment arguing, inter alia , that the plaintiff was not terminated but had voluntarily resigned. The defendant also argued that the faculty handbook did not constitute a contract that would support the plaintiff's claims for breach of contract. The federal district court acknowledged that the plaintiff did not have an express written contract of tenure and found that, pursuant to Louisiana jurisprudence, the policies set forth in the handbook could not serve as the basis for the plaintiff's breach of contract claims. However, the court stated:

Although there was no specific written tenure contract, the parties appear to agree that [the plaintiff's] achieving tenure meant that he was no longer an at-will employee.
* * *
The parties do not dispute that [the plaintiff] was a tenured professor. Accordingly, the Court finds that there is no genuine issue of material fact as to the existence of a contract.

Additionally, the court found that a genuine issue of material fact existed as to whether the plaintiff's absence from campus during the last weeks of the semester constituted a cause to terminate him.

As stated above, the plaintiff filed this lawsuit alleging that he had been terminated "without prior notice and without cause." He also alleged that, as a tenured professor, he "has a property interest in employment protected by the procedural due process provisions of the Fourteenth Amendment to the United States Constitution and Article 2 of the Louisiana Constitution." Thereafter, the plaintiff moved for partial summary judgment arguing that the evidence of record established that he did not resign; LSU policy required resignations to be submitted in writing; and Dr. Mills did not have the authority to accept a resignation. As stated above, in support of his motion, the plaintiff submitted a number of exhibits, including a portion of the deposition testimony of Dr. Mills, the email correspondence between him and Dr. Mills, and a copy of the LSU faculty handbook which detailed the procedure for tendering and accepting a resignation.

In support of its motion for summary judgment, the defendant submitted into evidence the testimony of Dr. Mills, who stated that the plaintiff declared, "Well then, I'll resign and I'll go to Minnesota or Washington where they appreciate me and I can do research." According to the defendant, the plaintiff's statement was sufficient to show his intent to resign because he did not deny making the statement.

We have reviewed this record in its entirety. Based on our review, the summary judgment evidence demonstrates that a material fact remains in dispute as to whether the plaintiff resigned. According to the evidence, after the plaintiff stated, "I'll just resign[,]" and Dr. Mills allegedly accepted the statement as a verbal resignation, Dr. Mills and the plaintiff exchanged email messages. In one email, Dr. Mills requested a letter of resignation and stated, "If you wish to remain a faculty member then I expect you to fully perform your faculty duties[.]" Thereafter, in another message, Dr. Mills stated, "I was following up on your statement ... you wished to resign. If you have changed your mind, that's fine." In yet another email to the plaintiff, Dr. Mills stated, "You are free to leave, send me your resignation." Later that day, Dr. Mills sent an email to the chancellor informing him that the plaintiff had "threatened to resign." He also stated, "Although as you can see below I clearly said that he could remain but he does need to fulfill his faculty obligations. * * * Not sure what he wants to do at this time[.]" Additionally, Dr. Marion, the department chairman, sent an email to the chancellor in which Dr. Marion stated that Dr. Mills had informed him that the plaintiff "wished to resign." Dr. Marion also stated in the email that the plaintiff could "play by the rules or he can resign if he wishes."

Afterwards, on August 23, 2015, the plaintiff emailed Dr. Mills and inquired whether October 1, 2015, was "our preferred day for me to leave." Dr. Mills replied, "I prefer you to stay [sic] but if you wish to leave then we will work out your departure date. I still want you to schedule a meeting to see me."

Contrary to the defendant's argument, the correspondence indicates that neither the plaintiff, Dr. Mills, nor Dr. Marion considered the plaintiff's statement, "I'll just resign[,]" to be an official resignation of employment. Moreover, summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. Briarwood Grp., L.L.C. v. Calhoun , 51,732 (La. App. 2 Cir. 1/18/18), 243 So.3d 1259 ; Jones v. Estate of Santiago , 2003-1424 (La. 4/14/04), 870 So.2d 1002 ;

Benson v. State , 48,300 (La. App. 2 Cir. 10/9/13), 124 So.3d 544. One reason is that such factual determinations call for credibility evaluations and the weighing of testimony. Briarwood Grp. , supra ; Benson , supra . Summary judgment is inappropriate when there is a factual dispute as to intent. Briarwood Grp. , supra ; Harris v. Dunn , 45,619 (La. App. 2 Cir. 9/22/10), 48 So.3d 367.

Based upon this record, we conclude that a genuine issue of material fact exists as to whether the plaintiff's statement demonstrated his intent to resign from his tenured position at the university. In determining the intent of a party, the district court will be required to weigh evidence and assess the credibility of witnesses. Thus, the determination of intent is not appropriate for summary judgment and the district court erred in granting the defendant's motion for summary judgment. Consequently, we shall reverse, in part, the judgment and remand this matter for further proceedings.

CONCLUSION

For the foregoing reasons, summary judgment in favor of the defendant is reversed. The denial of the plaintiff's motion for partial summary judgment is affirmed. This matter is remanded to the district court for further proceedings. Costs, in the amount of $3,169.37, are assessed to the appellee, Board of Supervisors of Louisiana State University System.

REVERSED IN PART; AFFIRMED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

      The plaintiff's tenure was ratified by the Board on April 20, 2006, and it became effective July 1, 2006. He was promoted to Professor of Medicine, effective July 1, 2013.

      Dr. Marion specified some job duties that the plaintiff had refused to perform, namely refusing to give lectures, claiming he was "too busy in clinic," and refusing to "take his rotations in the [Hematology-Oncology] Prison Clinic."

      Accreditation for Graduate Medical Education.