author: WELCH, J.

text:
    Christopher Charles MARIAKIS and Michael Andrew Mariakis, Individually and on Behalf of The Estate of Lori Hale Mariakis v. NORTH OAKS HEALTH SYSTEM
    2018 CA 0165
    Court of Appeal of Louisiana, First Circuit.
    JUDGMENT RENDERED: SEPTEMBER 21, 2018
    John D. Sileo, Casey W. Moll, New Orleans, Louisiana, Attorneys for Appellant, Plaintiff - Christopher Charles Mariakis, individually and on behalf of The Estate of Lori Hale Mariakis
    Craig J. Robichaux, Jocelyn R. Guidry, Mandeville, Louisiana, Attorneys for Appellees, Defendants - Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Health System
    Before: Pettigrew, Welch, and Chutz, JJ.
   WELCH, J.

Plaintiff appeals a summary judgment dismissing their medical malpractice action against the defendant. For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL HISTORY

On July 12, 2009, Lori Mariakis presented to the emergency department at North Oaks Hospital in Hammond with severe abdominal and vaginal pain. Ms. Mariakis, who was forty-six years old at the time, had a history of cervical cancer and gastrointestinal bleeding. The emergency department health care providers diagnosed Ms. Mariakis with a flare up of colitis and discharged her that same day with instructions to follow up with her primary care physician or return if symptoms persisted.

Five days later, on July 17, 2009, Ms. Mariakis again presented to the emergency department at North Oaks Hospital with constipation and significant stomach problems. The emergency department health care providers diagnosed Ms. Mariakis with constipation, instructed her to use over-the-counter medication for pain, and discharged her the next morning.

Ms. Mariakis continued to experience stomach problems, and on July 20, 2009, she presented to Lakeview Regional Medical Center in Covington ("Lakeview") where she was placed in intensive care immediately and had four liters of fluid removed from her abdominal cavity. On August 25, 2009, Ms. Mariakis passed away at Lakeview.

Christopher Charles Mariakis and Michael Andrew Mariakis, the sons and heirs of Ms. Mariakis, individually and on behalf of the estate of Lori Hale Mariakis ("plaintiffs"), instituted this medical malpractice action against North Oaks Health System on June 15, 2010, by requesting that a medical review panel be convened pursuant to the Louisiana Medical Malpractice Act. The medical review panel was formed and issued an opinion on December 11, 2012. The unanimous opinion stated, "[t]he evidence does not support the conclusion that North Oaks Medical Center failed to meet the applicable standard of care as charged in the complaint."

Subsequently, on January 18, 2013, Christopher Charles Mariakis ("plaintiff") filed a petition for damages naming North Oaks Health System, a Professional Medical Corporation ("North Oaks") as defendant. Plaintiff alleged that North Oaks breached the applicable standard of care for emergency department physicians and nurses by failing to properly interpret imaging studies and make a proper diagnosis. North Oaks answered the petition, generally denying the allegations of malpractice and asserting numerous affirmative defenses.

In support of the malpractice claims, the plaintiff presented Dr. Thomas Liebermann, a board certified gastroenterologist and internist, as his expert witness. In a Daubert motion filed on August 26, 2016, in accordance with La. C.C.P. art. 1425(F), North Oaks challenged the qualifications and methodology of Dr. Liebermann and sought an order from the trial court excluding his testimony. Following a hearing, the trial court excluded the testimony of Dr. Liebermann on February 15, 2017.

Three months later, on May 16, 2017, North Oaks filed a motion for summary judgment, seeking dismissal of the plaintiff's claims on the basis that the plaintiff had no expert evidence. The defendant asserted that after the trial court excluded Dr. Liebermann's testimony, the plaintiff did not have an expert witness to testify in support of his claims, thus, Plaintiff could not meet his burden of proof at trial, and North Oaks was entitled to summary judgment. North Oaks supported its motion with a certified copy of the medical review panel's opinion and the February 15, 2017 judgment granting North Oaks's Daubert motion that excluded the testimony of Dr. Liebermann. The trial court set the motion for hearing on June 26, 2017.

The plaintiff timely filed a memorandum in opposition to North Oaks's motion for summary judgment on June 15, 2011. Therein, the plaintiff submitted an expert affidavit of Dr. Robert V. West, board certified in the field of emergency medicine. In his affidavit, Dr. West stated, "I have reviewed Lori Mariakis' pertinent medical records" and "based upon my review of these documents ... it is my opinion that the care provided by North Oaks and its physicians and nurses, was more probably than not below the applicable medical standard of care." Dr. West further stated, "the care provided by North Oaks and its physicians and nurses, which fell below the applicable medical standard of care, caused Lori Mariakis injury, damage, and/or death." Dr. West's affidavit also included the following statement, "I specifically reserve the right to supplement or amend this opinion ... with an expert report that provides a further detailed explanation of my expert findings."

In a reply memorandum, filed by North Oaks on June 15, 2017, the defendant objected to the plaintiff's expert's affidavit on the basis that discovery in this matter was closed and that the affidavit was incompetent expert medical evidence, which was insufficient to defeat summary judgment because Dr. West failed to provide any factual support for his opinions.

Following a motion to continue filed by North Oaks, the trial court continued the hearing on the motion for summary judgment until August 7, 2017. Thereafter, on July 18, 2017, more than fifteen days prior to the hearing, the plaintiff filed his supplemental memorandum in opposition to North Oaks's motion for summary judgment, attaching the expert medical report of Dr. West. North Oaks did not object in writing to the plaintiff's supplemental memorandum in opposition, nor to the expert medical report of Dr. West.

Following the August 7th hearing, the trial court granted summary judgment in favor of North Oaks, dismissing the plaintiffs' claims, with prejudice, and signed a judgment in accordance therewith on August 18, 2017.

It is from the August 18, 2017 judgment that the plaintiff has appealed, assigning error to the trial court's determination that summary judgment was appropriate based upon the absence of expert testimony sufficient to demonstrate that the plaintiff would be able to meet his burden of proof on the merits.

LAW AND DISCUSSION

A summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3) ; Turner v. Rabalais , 2017-0741 (La. App. 1st Cir. 12/21/17), 240 So. 3d 251, 255, writ denied, 2018-0123 (La. 3/9/18), 237 So.3d 1193.

The burden of proof to show that no material factual issues exist is on the mover. However, if the mover will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party's claim. Rather, the mover must point out to the trial court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, the burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See La. C.C. P. art. 966(D)(1). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the case. Pumphrey v. Harris , 2012-0405 (La. App. 1st Cir. 11/2/12), 111 So.3d 86, 89.

To establish a claim for medical malpractice, a plaintiff must prove the following by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794(A) ; Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006. In motions for summary judgment in the context of medical malpractice, the burden of proof does not require that the medical care provider disprove medical malpractice, but only that the medical care provider raise as the basis of its motion that the plaintiff cannot support his burden of proof at trial to demonstrate medical malpractice. See Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880, 887 ; see also Boudreaux v. Mid-Continent Cas. Co. , 2005-2453 (La. App. 1st Cir. 11/3/06), 950 So.2d 839, 843-44, writ denied, 2006-2775 (La. 1/26/07), 948 So.2d 171. Once the medical care provider has made a prima facie showing that the motion should be granted, then the burden shifts to the plaintiffs 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. See La. C.C.P. art. 966(D)(1) ; see also Samaha , 977 So.2d at 887-88.

It is well established that to meet the burden of proof in a medical malpractice action, the plaintiff generally is required to produce expert medical testimony as a matter of law. Fagan v. LeBlanc , 2004-2743 (La. App. 1st Cir. 2/10/06), 928 So.2d 571, 575. Notably, the jurisprudence recognizes limited exceptions to the requirement of expert testimony in those instances where the claim arises out of an "obviously careless act" from which a lay person can infer negligence. Pfiffner v. Correa , 94-0924 (La. 10/17/94), 643 So.2d 1228, 1233-1234. Moreover, the jurisprudence has held that this requirement of producing expert medical testimony is especially apt when the defendant has filed a motion for summary judgment and supported such motion with expert opinion evidence that the treatment met the applicable standard of care. Boudreaux , 950 So.2d at 844. The opinion of the medical review panel is admissible, expert medical evidence that may be used to support or oppose any subsequent medical malpractice suit. McGlothlin v. Christus St. Patrick Hosp. , 2010-2775 (La. 7/1/11), 65 So.3d 1218, 1226-27. Thus, in order to defeat North Oaks's motion for summary judgment, the plaintiff was required to oppose the motion with competent expert medical evidence, in the form of an expert witness. The plaintiff opposed North Oaks's motion for summary judgment with the expert witness affidavit of Dr. West, and later supplemented his opposition with Dr. West's expert medical report.

We must consider the objection raised in North Oaks's reply memorandum as to whether Dr. West's affidavit should be admitted or considered by the trial court. First, North Oaks objected to Dr. West's affidavit, arguing that it was improper to introduce Dr. West as an expert witness at this point in the litigation because discovery was closed. We reject this argument. The fact that Dr. West first appeared as an expert witness in the plaintiff's opposition to the motion for summary judgment is irrelevant in this instance. The initial discovery deadline in this matter was May 6, 2015, which was later extended to December 21, 2015. Trial was initially scheduled for November 14, 2016, but was later continued to December 11, 2017. In the September 15, 2016 amended scheduling order setting the December 11, 2017 trial, the trial court set the date for the final pre-trial conference, but was silent as to discovery deadlines. It is unclear from the record whether the trial court re-opened the discovery window or whether the parties submitted any discovery requests; however, the plaintiffs initial expert, Dr. Liebermann, was not excluded by the trial court until February 15, 2017. Trial courts enjoy great discretion with regard to modification or enforcement of pretrial orders. See La. C.C.P. art. 1551. Additionally, the trial court's discretion in controlling the admission of expert testimony is well established in Louisiana jurisprudence. See La. C.E. art. 702 ; S. Casing of Louisiana, Inc. v. Houma Avionics, Inc. , 2000-1930 (La. App. 1st Cir. 9/28/01), 809 So.2d 1040, 1055. Where a motion for summary judgment is based on a plaintiff's lack of expert testimony necessary to meet his burden of proof at trial, a substantial injustice occurs when the plaintiff is not permitted to oppose the motion with an expert witness where, as here, the record demonstrates there was no discovery deadline for the continued trial date. See S. Casing of Louisiana , 809 So.2d at 1055.

North Oaks further objected to Dr. West's affidavit, arguing that it failed "to provide any factual support for the opinions Dr. West expresses in the document." North Oaks contended that Dr. West failed to specify which documents he reviewed to reach his opinion, failed to state the standard of care applicable to emergency department health care providers, or failed to provide scientific data to support his opinion. North Oaks asserted that Dr. West's opinion expressed in his affidavit was speculative and conclusory in determining that unspecified breaches caused unspecified damages. North Oaks pointed out that the opinion of the medical review panel was the only qualified expert opinion in this matter.

When an objection to an affidavit in support of or in opposition to a motion for summary judgment is made in accordance with La. C.C.P. art. 966(D)(2), the only issue to be determined is whether that affidavit is in compliance with La. C.C.P. art. 967. See Adolph v. Lighthouse Prop. Ins. Corp. , 2016-1275 (La. App. 1st Cir. 9/8/17), 227 So. 3d 316, 323 (Welch, J., concurring).

Article 967(A) provides, in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

In his affidavit, Dr. West states that he reviewed the "pertinent medical records" of Ms. Mariakis, but he never identifies what records he reviewed. While Dr. West states that "the care provided by North Oaks and its physicians and nurses, was more probably than not below the applicable medical standard of care," and that caused Ms. Mariakis "injury, damage, and/or death," he never states what standard of care was owed to Ms. Mariakis by the North Oaks emergency department. Affidavits that are conclusory with no supporting underlying facts are legally insufficient to defeat a motion for summary judgment. Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Guillory v. The Chimes , 2017-0479 (La. App. 1st Cir. 12/21/17), 240 So.3d 193, 195 ; Charles v. Travelers Indem. Co. , 2015-0956 (La. App. 1st Cir. 5/10/16), 2016 WL 2669821, at *5 (unpublished). Thus, on its face, the plaintiff's expert's affidavit does not meet the requirements of La. C.C.P. art. 967(A).

On July 18, 2017, the plaintiff filed a supplemental memorandum in opposition to motion for summary judgment, attaching to it a medical report signed by Dr. West. Although not attached to an affidavit or sworn to in any way, the plaintiff argues that Dr. West's signed medical report is an extension of his prior-filed affidavit, wherein Dr. West stated, "I specifically reserve the right to supplement or amend this opinion, and further reserve the right to supplement this opinion with an expert report that provides a further detailed explanation of my expert findings." North Oaks did not timely file a written objection to Dr. West's signed medical report in a reply memorandum.

Louisiana Code of Civil Procedure article 966(A)(4) provides that 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. Louisiana Code of Civil Procedure article 967(A) provides that affidavits may be supplemented by depositions, answers to interrogatories, or by further affidavits. Dr. West's expert medical report does not fall into any of those categories. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. Unifund CCR Partners v. Perkins , 2012-1851 (La. App. 1st Cir. 9/25/13), 134 So.3d 626, 632. However, La. C.C.P. art. 966(D)(2) provides that the court shall consider any documents filed in support of or in opposition to the motion for summary judgment to which no objection is made . Article 966(D)(2) further provides that "[a]ny objection to a document shall be raised in a timely filed ... reply memorandum." The law is well settled that the trial court cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence in making its decision whether to grant or deny a motion for summary judgment. Adolph , 227 So.3d at 321. Thus, since Dr. West's expert medical report was not objected to in accordance with La. C.C.P. art. 966(D)(2), i.e. , by raising the objection "in a timely filed ... reply memorandum," it must be accepted by the court.

In this case, Dr. West's affidavit, which was timely supplemented with his expert medical report without objection, is sufficient to create a genuine issue as to material fact. Based on our review of the report and Dr. West's curriculum vitae detailing his work experience as a licensed doctor specializing in emergency medicine, we find that the plaintiff has produced factual support sufficient to establish the existence of a genuine issue of material fact as to whether the care provided by North Oaks to Ms. Mariakis fell below the applicable standard of care for emergency health care providers, which caused her injury, damages, and death. Dr. West's expert medical report is sufficient to defeat North Oaks's motion for summary judgment.

Based on the foregoing, we vacate the motion for summary judgment in favor of North Oaks, and we remand this matter to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to the defendant/appellee, Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Health System.

VACATED; REMANDED.

      At the time of invocation of the medical review panel, the Louisiana Medical Malpractice Act was set forth in La. R.S. 40:1299.41, et seq. ; however, HCR No. 84 of the 2015 Regular Session redesignated the Act to La. R.S. 40:1231.1, et seq.

      Although Michael Andrew Mariakis initially joined his brother as a plaintiff in this lawsuit against North Oaks, by judgment dated October 9, 2015, Michael's claims were dismissed and, thus, he is no longer a party to this suit.

      The plaintiff misidentified North Oaks Health System, a Professional Medical Corporation, which is actually Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Health System ("North Oaks").

      The record demonstrates that North Oaks had knowledge that Plaintiff's medical expert was Dr. Liebermann as early as February 9, 2016, wherein it requested leave of court to add allegations to its answer based on Dr. Liebermann's February 21, 2014 deposition testimony.

      See Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and State v. Foret , 628 So.2d 1116 (La. 1993) (setting forth the policy for the pretrial assessment of the admissibility of expert testimony).

      This ruling is not at issue on appeal.

      Louisiana Code of Civil Procedure article 966(B)(2) provides that "[a]ny opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion." The hearing on North Oaks's motion for summary judgment, originally set for June 26, 2017, was continued until August 7, 2017. The plaintiffs' opposition and supplemental opposition and exhibits were timely filed on June 15 and July 18, 2017.

      The Louisiana Supreme Court has listed the following examples of obviously careless acts from which a lay person can infer negligence: fracturing a leg during examination; amputating the wrong arm; dropping a knife, scalpel, or acid on a patient; or leaving a sponge in a patient's body. Id.

      As noted, North Oaks objected to the affidavit of Dr. West. Despite the mandate of La. C.C.P. art. 966(D)(2), which provides "[t]he court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider," the trial court did not expressly rule on North Oaks's objection to Dr. West's affidavit.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Matthew A. HILLMAN v. Corey SENECA et al.
    18-167
    Court of Appeal of Louisiana, Third Circuit.
    October 3, 2018
    Adam G. Young, Young, Cotter & Meade, LLC, 315 S. College Road, Suite 163, Lafayette, LA 70503, Tel. 337-261-8800, Fax 337-234-3133, COUNSEL FOR PLAINTIFF/APPELLANT: Matthew Hillman.
    Court composed of Sylvia R. Cooks, John D. Saunders and Elizabeth A. Pickett, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Matthew Hillman (Plaintiff) filed suit against Corey Seneca (Defendant) and an unknown insurance company seeking damages for injuries sustained as the result of an unprovoked attack upon Plaintiff. Defendant did not file an answer to the petition.

Plaintiff obtained a default judgment and confirmed the judgment after a hearing on the matter. The evidence presented at the confirmation hearing in support of Plaintiff's claims consisted of Plaintiff's testimony and the "Sworn Narrative [Statement] of Treating Dentist," Dr. Adrian M. Simms, DDS.

Plaintiff testified at the hearing giving his account of the attack and explaining his injuries. He testified he did not provoke the incident. His injuries required emergency medical treatment at Our Lady of Lourdes Hospital immediately following the attack. Plaintiff needed fifteen stitches to repair the damage to his upper lip. He visited his dentist two days after the incident, at which time he says Dr. Simms diagnosed a fracture to the backside of two of his front teeth. He made two additional visits regarding his injuries. According to this testimony, Plaintiff understood that the injury might heal on its own but only time would tell. As of the date of the hearing Plaintiff's injuries were not healed. Plaintiff explained he could not eat solid food for two months and endured "a great amount of pain and suffering or anguish because of [his] injury" and was still experiencing some level of pain as of the date of the hearing. He was unable to work his regular job as a private pilot for two months. Plaintiff testified his bill for the emergency room was $1,500 and his "out of pocket cost" for the dentist was "about $1,200."

Dr. Simms' written statement sets forth the following undisputed facts which corroborate Plaintiff's testimony:

1. Dr. Simms is a doctor of dental surgery and is a "Master of the Academy of General Dentistry."
2. He treated Plaintiff for injuries described in Plaintiff's petition beginning on January 4, 2017.
3. Plaintiff was "hit in the mouth with great force."
4. Plaintiff sustained fractures to two of his teeth referred to as "# 24 and $25 [sic]."
5. Plaintiff's injuries to his teeth will require treatment at a cost of $2,590.

The trial court awarded a total of $5,394.19 in damages itemized in the judgment as follows:

Special damages, including lost wages, past medical,
Past and future dental $2,894.19 General Damages $2,500

Plaintiff does not challenge the award of special damages but challenges the trial court's award of general damages asserting the award is abusively low.

LEGAL ANALYSIS

Louisiana Code of Civil Procedure Article 1703 provides: "A final default judgment shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy."

The appellate jurisdiction of courts of appeal extends to both law and facts. La. Const. art. V, § 10 (B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that was manifestly erroneous or clearly wrong. Stobart v. State, Dept. of Transp. and Development, 617 So.2d 880, 882, n. 2, (La.1993)...
In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Bordelon v. Sayer, 01-0717, p. 3 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340. This determination is a factual one governed by the manifest error standard of review. Id.

Arias v. Stolthaven New Orleans, L.L.C. , 08-1111 p. 5 (La. 5/5/09), 9 So.3d 815, 818.

Louisiana Code of Civil Procedure, Article 1702 (emphasis added) provides in pertinent part:

A preliminary default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to the entry of a final default judgment. The court may permit documentary evidence to be filed in the record in any electronically stored format authorized by the local rules of the district court or approved by the clerk of the district court for receipt of evidence ...
B. (2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering a final default judgment.
....
D. When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.
....

In Bryant v. Xtreme Machines, LLC , 16-693 pps. 2-3 (La.App. 3 Cir. 12/14/16), 208 So.3d 911, 913-14 (emphasis added), this court set forth the standard of review and the law applicable to default judgments:

In reviewing default judgments, appellate courts are restricted to determining the sufficiency of the evidence offered in support of judgment. Although there is a presumption that the evidence presented supports a default judgment, this presumption does not attach when the record of the confirmation hearing is before the appellate court. In such a case, the reviewing court is able to determine from the record whether the evidence upon which the judgment is based was sufficient and competent.... However, the trial court's conclusion concerning the evidence's sufficiency presents a factual issue which the manifest error rule governs. The manifest error standard of review obligates appellate courts to give great deference to the trial court's findings of fact. We will not reverse factual determinations, absent a finding of manifest error. Bordelon v. Sayer , 01-0717 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235, (citations omitted), writ denied , 02-1009 (La. 6/21/02), 819 So.2d 340.
This court recently discussed default judgments in Burley v. New York Life Insurance Co. , 15-263, p. 4 (La.App. 3 Cir. 11/25/15), 179 So.3d 922, 928, where we noted:
Louisiana Code of Civil Procedure Article 1701(A) allows a judgment of default to be entered against a defendant who fails to answer within the time prescribed by law. Confirmation of a default judgment under La.Code Civ.P. art. 1702(A) requires "proof of the demand that is sufficient to establish a prima facie case..."

In Hall v. Folger Coffee Co. , 02-920 pps. 12-13 (La.App. 4 Cir. 10/1/03), 857 So.2d 1234, 1243-44, writ denied , 03-1756 (La. 10/17/03), 855 So.2d 762, and writ denied , 03-3416 (La. 6/25/04), 876 So.2d 827 (emphasis added) the fourth circuit further explained that:

Confirming a default judgment is akin to a trial at which only the plaintiff is present. 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise:Civil Procedure § 12.3 (1999). At such trial, the unopposed plaintiff must comply with a set of special, somewhat strict rules in proving his claim. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof § 2.9 (1999). The following special rules are pertinent to the present case.
First, the plaintiff is confined to the facts and the theories pled in his petition; he may not expand his pleadings by introducing evidence at the confirmation hearing. Thus, the plaintiff is precluded from obtaining a default judgment "different in kind from that demanded in the petition." La. C.C.P. art. 1703 ; see Spear v. Tran, 96-1490 (La.App. 4 Cir. 9/18/96), 682 So.2d 267. However, the Louisiana Supreme Court has held that "the pleadings which lead up to the demand, or prayer, upon which a default judgment is based are to be construed no more restrictively than pleadings suggestive of other judgments." Royal Furniture Co. of Baton Rouge, Inc. v. Benton, 260 La. 527, 532, 256 So.2d 614, 616 (1972).
Second, "[b]ecause at a default confirmation there is no objecting party, to prevent reversal on appeal, both plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence" that establishes a prima facie case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., and Kerry Triche, Handbook on Louisiana Evidence Law 639 (2003 ed.). As a corollary, "[e]xcept as authorized by the Code of Civil Procedure Article 1702, or evidence that fits within one of the exceptions provided by [the Louisiana Evidence] Code, hearsay evidence is inadmissible to confirm a default." Id. ; see La. C.E. art. 1101(A) (providing that "[e]xcept as otherwise provided by legislation, the provisions of this Code shall be applicable to the determination of fact ... in proceedings to confirm a default.")
Third, depending on the nature of the plaintiff's demand, Article 1702 sets forth several exceptions to the rule against the use of hearsay evidence at the confirmation hearing. One of those pertinent exceptions is that "[w]hen a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such [delictual] demand." La. C.C.P. art. 1702(B)(2). Another pertinent exception is that "[w]hen the demand is based upon a claim for personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony." La. C.C.P. art. 1702(D) ; see Smith v. Lewis, 597 So.2d 1267 (La.App. 3 Cir.1992) (construing this provision to mean that a treating physician's affidavit that incorporates an attached narrative report is a "sworn narrative report of the treating physician" sufficient to establish a prima facie case).

In reviewing the propriety of the trial court's award of general damages we recognize that we are constrained to accord great deference to the trial court's determination of general damages:

In considering whether an award of general damages is excessive or inadequate, we are guided by the decision in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), wherein our supreme court noted that "the discretion vested in the trier of fact is 'great,' and even vast, so that an appellate court should rarely disturb an award of general damages." Under Youn, "[t]he initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the 'much discretion' of the trier of fact." Id. at 1260. Only after the initial inquiry is answered in the affirmative should the appellate court increase or reduce the award. Id. In making the initial inquiry, the reviewing court should not use "a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case." Id. at 1260. Such prior awards should be considered only after the reviewing court concludes that there has been an abuse of discretion. Id.

Baltazar v. Wolinski , 10-757 pps. 12-13 (La.App. 3 Cir. 12/8/10), 53 So.3d 591, 599, writ granted, judgment aff'd in part, rev'd in part , 11-51 (La. 3/4/11), 56 So.3d 947, and writ denied , 11-58 (La. 3/4/11), 58 So.3d 475.

Upon review of the evidence presented through Plaintiff's testimony, corroborated by Dr. Simms' statement, we find the trial court abused its "vast" discretion in making an award of only $2,500 in general damages. Plaintiff, while minding his own business, enjoying social time at a friend's home, was violently attacked without provocation. As we have previously stated, Plaintiff was struck with such force in the face he required emergency medical attention including fifteen stitches to repair his lip. He "sustained fractures to two of his teeth." As a result of this violent assault, Plaintiff "could not eat solid food for two months." He endured "a great amount of pain and suffering or anguish because of this injury" and was still experiencing some level of pain as of the date of the hearing. Further, he was unable to work his regular job for two months. This attack upon Plaintiff was violent and traumatic causing months of pain and suffering. As of the date of the hearing the outcome of Plaintiff's injuries and resulting pain and suffering were still unresolved and unknown.

We recognized in Baltazar , 53 So.3d at 600, that we are constrained by the decisions of the Louisiana Supreme Court to increase an abusively low award "to the lowest amount which is reasonably within the court's discretion, Ryan v. Zurich Am. Ins. Co., 07-2312, p. 7 (La.7/1/08), 988 So.2d 214, 219." Once we have determined an award is abusively low, "we refer to prior awards in similar cases to determine the lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976)," Id. In Dubroc v. Dupar , 95-1107 (La.App. 3 Cir. 1/31/96), 670 So.2d 349, 351 we reversed an $8,000 award for soft tissue injuries and three fractured teeth as inadequate. In that case the plaintiff continued to suffer from his injuries a year after the accident and faced dental procedures at an estimated cost of $2,700. We increased Mr. Dubroc's general damage award to $25,000.

For the reasons as stated we affirm the trial court's judgment below except we amend the general damage award to increase it to $10,000.00, this being the lowest amount reasonably within the court's discretion to compensate Plaintiff. All costs of this appeal are assessed against Defendant, Corey Seneca.

AFFIRMED AS AMENDED; RENDERED.

      No documents or exhibits were attached to Dr. Simms' statement, and no certified medical records were introduced nor placed in evidence by trial counsel in support of Plaintiff's testimony. There are uncertified medical bills and a letter from Dr. Simms contained in this record which were attached to Plaintiff's "Supplemental Memorandum In Support of Default Judgment" filed on May 10, 2017, months after the confirmation hearing. Uncertified medical bills and a photographic copy of a letter attached to this supplemental memorandum are inadmissible hearsay.


author: Judge, Dale N. Atkins

text:
    CENTRAL BUILDING SERVICES, LLC v. ST. AUGUSTINE HIGH SCHOOL, INC., New Orleans, Louisiana d/b/a St. Augustine High School
    NO. 2018-CA-0427
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 17, 2018
    James M. Williams, Inemesit U. O'Boyle, Patrick R. Follette, CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, LLP, One Galleria Boulevard, Suite 1100, Metairie, LA 70001, COUNSEL FOR PLAINTIFF/APPELLEE
    J. Marc Vezina, Kelli M. Khalaf, VEZINA AND GATTUSO, L.L.C., 401 Weyer Street, P. O. Box 461, Gretna, LA 70054, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins )
   Judge, Dale N. Atkins

St. Augustine High School appeals a partial summary judgment granted in favor of Central Building Services, Inc. For the reasons set forth below, we dismiss the appeal and remand for further proceedings.

BACKGROUND

This case involves a contract dispute between St. Augustine High School ("St. Augustine") and Central Building Services, Inc. ("Central") arising from a janitorial services contract. Pursuant to the contractual language, termination of the contract for any reason other than non-performance must occur at least 30 days before the contract's automatic renewal date, and notice of termination must be mailed via the United States Postal Service ("USPS"), certified mail, return receipt requested. It is undisputed that St. Augustine mailed notice of termination in a timely fashion, yet the termination letter was mailed via Federal Express, not USPS. Central therefore filed a motion for summary judgment asserting breach of contract and requesting damages commensurate with the terms of the contract.

At the September 8, 2017 hearing on Central's motion for summary judgment, the district court granted partial summary judgment in favor of Central and against St. Augustine High School for failure to provide notice of termination according to the explicit provisions outlined in the contract. However, the district court denied summary judgment on the issue of damages in open court.

On October 5, 2017, within 30 days of the district court's September 8 ruling in open court, St. Augustine filed a Petition for Devolutive Appeal. The district court signed the Order granting the devolutive appeal the same day.

After the appellate record was lodged in this Court, Central filed a Motion to Dismiss Appeal for Lack of Jurisdiction. Central argues that the judgment being appealed is a partial summary judgment that was not designated as final and appealable under La. C.C.P. art. 1915 (B), nor did the district court express any reason why the issue should be immediately appealed. As such, the judgment on appeal is not a final judgment and cannot be considered on appeal. We agree.

DISCUSSION

"[A] judgment that only partially determines the merits of an action is a partial final judgment and, as such, is immediately appealable only if authorized by La. C.C.P. art. 1915." O'Bannon v. Moriah Tech., Inc. , 2017-0728, p. 6 (La. App. 1 Cir. 3/29/18), 248 So.3d 392, 398 (citing Rhodes v. Lewis , 2001-1989, p. 3-4 (La. 5/14/02), 817 So.2d 64, 66 ).

La. C.C.P. art. 1915"divides partial judgments into two groups: (1) those under Article 1915 (A), which lists six specific types of partial final judgments that are appealable without being designated as final by the trial court; and (2) those covered by Art. 1915 (B), which provides that any other partial judgment (excluding those listed in Part A) is not deemed to be final, and not subject to appeal, unless the trial court designates it as such." Andrew Paul Gerber Testamentary Trust v. Flettrich , 2016-0065, pp. 4-5 (La. App. 4 Cir. 11/2/16), 204 So.3d 634, 637-38.

Paragraph (3) under La. C.C.P. art. 1915 (A) includes summary judgments as one of the types of judgments that are immediately appealable without being designated as final, unless the summary judgment is granted pursuant to La. C.C.P. art. 966 (E). Article 966 (E) provides that "a summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties." In other words, if a partial summary judgment is granted on a particular issue, as is the case here, then Article 1915 (A) does not apply. Instead, the provisions of La. C.C.P. art. 1915 (B) would apply. Under La. C.C.P. art. 1915 (B) :

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay .
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

St. Augustine opposes Central's Motion to Dismiss Appeal by arguing first that the district court's judgment was final because the portion of the judgment granting summary judgment went to the issue of liability, and the court's judgment in this case resolved liability but not damages. In support of this argument, St. Augustine references La. C.C.P. art. 1915 (A)(5), which provides that a judgment is final if a court "signs a judgment on the issue of liability when that issue has been tried separately by the court or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury." Second, St. Augustine argues that even if the judgment is not a final judgment, this Court may convert the appeal into a supervisory writ application, because it filed the petition for appeal within the 30-day time period allowed for seeking a supervisory writ.

We find no merit to St. Augustine's first argument, as La. C.C.P. art. 1915 (A)(5) does not apply in these circumstances. Contrary to St. Augustine's argument, the district court's judgment does not resolve all issues of liability; indeed, at the September 8, 2017 hearing, the court seemed to suggest that if Central were also found liable because it allegedly "performed in a substandard manner," this would or could have some bearing on damages. More importantly, because this is a partial summary judgment granted pursuant to La. C.C.P. art. 966 (E), Article 1915 (B)(2), which specifically addresses motions for partial summary judgment, applies rather than Article 1915 (A)(5). Under Article 1915 (B)(2), in the absence of a determination that the judgment is final and there is no just reason for delaying the appeal, the judgment shall not constitute a final judgment for the purposes of an immediate appeal.

St. Augustine's second argument - that this Court may convert the appeal to a supervisory writ - has some merit, however, because this Court has indeed held that it may, in its discretion, convert an improper appeal to a supervisory writ application when certain criteria are met, as expressed in Mandina, Inc. v. O'Brien , 2013-0085 (La. App. 4 Cir. 7/31/13), 156 So.3d 99 :

In certain circumstances, this court has exercised its discretion to convert an appeal of an interlocutory judgment that is not immediately appealable into a supervisory writ application ... when the following two circumstances both are present: (i) the motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal. (ii) When the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure the fundamental fairness and judicial efficiency, such as where reversal of the trial court's decision would terminate the litigation.

2013-0085,p. 8, 156 So.3d at 104. See also Forstall v. City of New Orleans , 2017-0414, p. 5 (La. App. 4 Cir. 1/17/18), 238 So.3d 465, 469 ; Herlitz Constr. Co., Inc. v. Hotel Inv'rs of New Iberia, Inc. , 396 So.2d 878 (La. 1981). Here, St. Augustine filed its Petition for Devolutive Appeal within 30 days of the district court's September 8, 2017 ruling from the bench, thereby satisfying the first prong of the Mandina test. In our view the second prong is not satisfied under Mandina , however, because a reversal of the judgment will not terminate the litigation and is not necessary to ensure fundamental fairness and judicial efficiency. We therefore decline St. Augustine's invitation to convert the appeal to a supervisory writ. St. Augustine is in no way precluded from appealing the district court's partial summary judgment once a final judgment has been entered in this matter. See Joseph v. Wasserman , 2017-0603, p. 8 (La. App. 4 Cir. 1/10/18), 237 So.3d 14, 20 ("As a general rule, appellate courts decline to exercise their supervisory jurisdiction when an adequate remedy exists by appeal."); Urquhart v. Spencer , 15-1354, 15-1355, p. 4 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074, 1078 ("an adequate remedy by appeal will exist upon the entry of a precise, definite, and certain judgment containing the decretal language necessary for our appellate review.").

CONCLUSION

Central Building Service, Inc.'s Motion to Dismiss Appeal for Lack of Jurisdiction is granted. St. Augustine's appeal of the partial summary judgment entered against St. Augustine and in favor of Central shall be dismissed and the matter remanded to the district court for further proceedings.

MOTION TO DISMISS APPEAL GRANTED, CASE REMANDED

      Even if the partial summary judgment were final and appealable, there was an additional procedural flaw that existed at the time that St. Augustine filed its Petition for Devolutive Appeal: no written judgment had been signed and entered into the record, as required for a final judgment under La. C.C.P. art. 1918. If the judgment had otherwise been final and appealable, however, this procedural flaw would have been cured when the district court subsequently signed a written Judgment on October 31, 2017. See State v. Landry , 2007-1013, p. 2 (La. App. 3 Cir. 9/19/07), 966 So.2d 690, 692.


author: Judge Joy Cossich Lobrano

text:
    Cassandra LEWIS v. B-3 PROPERTY d/b/a B-3 Consulting, Blair Bail Bonds, and ABC Insurance Company
    NO. 2018-CA-0428
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 24, 2018
    J. Michael Daly, Jr., WALKER DALY, LLP, 3939 North Causeway Boulevard, Suite 200, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLEE
    Ike Spears, Diedre Pierce Kelly, SPEARS & SPEARS, 909 Poydras Street, Suite 1825, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
   Judge Joy Cossich Lobrano

In this tort litigation, defendants/appellants, B-3 Property d/b/a B-3 Consulting ("B-3"), Blair Bail Bonds ("Blair"), and St. Roch Villa, LLC ("St. Roch"), appeal the December 20, 2017 judgment of the district court, which granted summary judgment in favor of plaintiff/appellee, Cassandra Smith ("Smith"). For the reasons that follow, we find that the judgment lacks the required decretal language, and is not a final appealable judgment. Accordingly, we dismiss the appeal without prejudice and remand this matter to the district court.

On May 27, 2011, Smith filed a petition for damages against B-3 and Blair. Smith alleged that B-3 and/or Blair owned and operated the apartment complex where Smith lived. Smith further alleged that, in "June or July of 2010," she sustained injuries when she slipped and fell in a puddle of algae on the ground, which formed as a result of a leak in her apartment's air conditioner. According to Smith's petition, B-3 and Blair are liable for negligence. On September 22, 2014, St. Roch was added as a defendant via a supplemental and amending petition, in which Smith alleged that St. Roch and/or B-3 and/or Blair owned and operated the apartment complex where Smith lived and, consequently, are liable for negligence.

On May 19, 2015, Smith filed a motion for summary judgment against B-3 and Blair on the issue of negligence. On August 28, 2015, summary judgment was denied. On August 8, 2017, Smith filed a second motion for summary judgment against B-3 and Blair on the issue of negligence. The motion did not seek summary judgment against St. Roch. On December 20, 2017, the district court granted summary judgment. This appeal followed.

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

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

This Court has held that, in multiple defendant cases, the "failure to name the particular defendant cast in judgment results in the invalidity of the judgment." Urquhart v. Spencer , 2015-1354, p. 4 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077 (quoting Freeman v. Zara's Food Store, Inc. , 2016-0445, p. 15 (La. App. 4 Cir. 11/2/16), 204 So.3d 691, 700 ) ). "The failure to name the defendant against whom the judgment is rendered in a case with multiple defendants makes the judgment fatally defective, because one cannot discern from its face against whom it may be enforced." Urquhart , 2015-1354, p. 4, 204 So.3d at 1078 (quoting Freeman , 2016-0445, p. 15, 204 So.3d at 701 ). "Moreover, such a judgment 'does not determine the rights of the parties because it does not cast any defendant in judgment and it does not express the degree of fault of each defendant as a percentage.' " Freeman , 2016-0445, p. 15, 204 So.3d at 701 (quotation omitted).

Here, the district court's December 20, 2017 judgment states, in relevant part:

Plaintiff's Motion for Summary Judgment came for hearing before this Honorable Court on November 17, 2017.
Present on said date were:
J. Michael Daly, Jr., attorney for Plaintiff
Ike Spears, attorney for Defendants
The Court, after reviewing the pleadings and listening to the arguments of counsel GRANTED plaintiff's Motion for Summary Judgment and granting the relief prayed for in said Motion and Memorandum.
Accordingly, it is hereby Ordered that plaintiff's Motion for Summary Judgment be and is hereby GRANTED, and that there be Judgment rendered herein in favor of the plaintiff and against the defendants. This Motion is GRANTED with full prejudice, each party to bear its own costs.

Applying the above principles to this matter, we find that the judgment does not satisfy the requirements for a final appealable judgment. The judgment does not name the party against whom the ruling is ordered and merely states that judgment is rendered "against the defendants." It does not specify which defendants are cast in judgment or provide any degree of fault for each defendant as a percentage. The judgment also does not specify what relief is granted; rather, the judgment merely states that it grants "the relief prayed for in said Motion and Memorandum." As a result, one must look to extrinsic documents or pleadings in order to discern what the district court's ruling entails. The absence of this necessary decretal language means that the judgment is not final and appealable. We, therefore, lack appellate jurisdiction to address the merits of the appeal.

Under certain circumstances, this Court has exercised its discretion to convert " 'appeals' of non-appealable judgments to applications for supervisory writs in those cases in which the motions for appeal were filed within the thirty-day period allowed for the filing of applications for supervisory writs." Favrot v. Favrot , 2010-0986, p. 6 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1104. See also Rule 4-3, Uniform Rules-Courts of Appeal. Here, however, the appellants filed a Notice of Intent and Motion to Fix Time for Filing of Appeal on February 7, 2018, forty-nine (49) days after the district court judgment was rendered.

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

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

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

APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED

      Rule 4-3 of the Uniform Rules of Courts of Appeal provides, in pertinent part: "[t]he judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the appellate court. The return date in civil cases shall not exceed 30 days from the date of notice, as provided in La. C.C.P. art. 1914...."


text:
    Quinetta RIVET v. DEPARTMENT OF POLICE
    NO. 2018-CA-0229
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 24, 2018
    Corey S. Lloyd, Donovan A. Livaccari, LIVACCARI LAW LLC, 101 W. Robert E. Lee Blvd., Suite 402, New Orleans, LA 70124-2472, COUNSEL FOR PLAINTIFF/APPELLANT
    Corwin St. Raymond, ASSISTANT CITY ATTORNEY, Elizabeth Robins, DEPUTY CITY ATTORNEY, Sunni J. LeBeouf, CITY ATTORNEY, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods )
   Judge Joy Cossich Lobrano

This is a civil service case. Plaintiff/appellant, Quinetta Rivet ("Rivet"), appeals the January 9, 2018 decision of the Civil Service Commission ("CSC" or "Commission") upholding the suspension and termination of her employment by the appointing authority, the New Orleans Police Department ("NOPD"). For the reasons that follow, we affirm the decision of the CSC.

Rivet was employed by the NOPD as a police technician and had permanent status as a classified employee. She was not a commissioned police officer. She worked in an office where her job duties included answering telephone calls for the NOPD's child abuse unit. Rivet was disciplined for (1) leaving work without the permission of her supervisor, Sergeant Arnold Williams ("Sgt. Williams"); and (2) providing a false statement - that Sgt. Williams had given Rivet permission to leave work - to Sergeant Trinell Franklin ("Sgt. Franklin") of the Public Integrity Bureau ("PIB"), during Sgt. Franklin's disciplinary investigation of Rivet's conduct.

Following a pre-discipline hearing, on July 9, 2015, Superintendent Michael Harrison issued a discipline letter to Rivet, stating that she violated NOPD internal rules relative to performance of duty, professionalism, and truthfulness. For the violations concerning performance of duty and professionalism, Rivet received three suspensions of three days each, for a total of nine days. For the violation concerning truthfulness, Rivet's employment with the NOPD was terminated.

On July 10, 2015, Rivet appealed her termination to the CSC. The CSC hearing went forward on July 28, 2016, July 20, 2017, and August 8, 2017. On December 13, 2017, the hearing examiner issued his report in which he recommended that the appointing authority met its burden of proof and established by a preponderance of the evidence that (1) Rivet was disciplined for cause; (2) Rivet's conduct impaired the efficiency of the public service; (3) the discipline imposed was commensurate with the offense; and (4) Rivet was not denied due process. On January 9, 2018, the CSC denied Rivet's appeal, upholding her suspension and termination. This appeal followed.

This Court has summarized the governing standard of review and applicable legal principles as follows:

• An employer cannot subject a permanent classified civil service employee to disciplinary action except for cause expressed in writing. La. Const. Art. X, § 8 (A); Walters v. Dep't of Police , 454 So.2d 106, 112 (La. 1984).
• Cause for discipline of an employee exists whenever the employee's conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Dep't of Police , 558 So.2d 1311, 1315 (La. App. 4th Cir. 1990).
• "The appointing authority is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause." Whitaker v. New Orleans Police Dep't , 03-0512, p. 5 (La. App. 4 Cir. 9/17/03), 863 So.2d 572, 575.
• The employee may appeal from such a disciplinary action to the Commission. On appeal, the Commission has a duty to decide independently from the facts presented whether the appointing authority had good and lawful cause for taking the disciplinary action and, if so, whether the punishment imposed was commensurate with the infraction. Walters , 454 So.2d at 113.
• "The authority to reduce a penalty can only be exercised if there is insufficient cause." Whitaker , 03-0512 at p. 4, 863 So.2d at 575 (citing Branighan v. Dep't of Police , 362 So.2d 1221, 1223 (La. App. 4 Cir. 1978) ). Further, a legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. Branighan , 362 So.2d at 1221. The Commission may not merely substitute its judgment for the appointing authority's judgment. Whitaker , 03-0512 at p. 5, 863 So.2d at 576.
• On appeal, the standard of review is established by the constitutional rule that the Commission's decision is subject to review on any question of law or fact. La. Const. art. X, § 12. A multifaceted standard of appellate review applies. First, as in other civil matters, deference must be given to the Commission's factual findings, which should not be disturbed unless manifestly erroneous or clearly wrong. Second, in evaluating the Commission's determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the appellate court should not modify the Commission's decision unless it is arbitrary, capricious, or characterized by an abuse of discretion. Bannister [v. Department of Streets] , 95-404 at p. 8, 666 So.2d [641] at 647 [ (La. 1996) ]. Arbitrary or capricious means there is no rational basis for the action taken by the Commission. Id.

Abbott v. New Orleans Police Dep't , 2014-0993, pp. 7-8 (La. App. 4 Cir. 2/11/15), 165 So.3d 191, 197 (quotation omitted).

On appeal, Rivet does not challenge her suspensions. Rather, she seeks appellate review of her termination, raising the following three issues: (1) whether there was legal cause for her discipline; (2) whether her discipline was commensurate with the offense; and (3) whether she was afforded due process.

We first address Rivet's argument that the CSC erred in finding legal cause existed for her discipline. In an appeal before the CSC, "[t]he appointing authority has the burden of proving, by a preponderance of the evidence that the complained-of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority." Cure v. Dep't of Police , 2007-0166, p. 2 (La. App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094 (citing Marziale v. Dep't of Police , 2006-0459, p. 10 (La. App. 4 Cir. 11/8/06), 944 So.2d 760, 767 ).

The CSC upheld NOPD's termination of Rivet's employment for violation of the Truthfulness Rule, which is found in NOPD Rule 2, Paragraph 3, and provides as follows:

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.

In rendering its decision, the CSC considered the following testimony to be pertinent. Sgt. Williams testified that, on the morning of April 17, 2015, Rivet was the only employee on duty in the child abuse unit's office. Sgt. Williams was in the office but was off duty and completing paperwork during his off-duty time. Shortly after Rivet arrived at work, she proceeded to Sgt. Williams' office, seeking permission to leave work to meet a repairman who was at her home. Sgt. Williams was adamant that he denied Rivet permission to leave work. Rather, he explained that he told Rivet that she could not leave work because she was the only person on duty, and someone needed to be in the office to answer the telephones. After he discovered that Rivet left the office, Sgt. Williams called her on her cell phone and repeated that she did not have permission to leave work, to which Rivet responded "Well, I'm doing what I have to do. It's an emergency." Rivet later returned to work after having been absent for three hours.

Sergeant Randi Gant ("Sgt. Gant") testified that, on April 17, 2015, Rivet came into Sgt. Gant's office, visibly upset, and stated that she "wanted to talk to someone she could trust." Rivet was concerned that she was "going to get written up." Rivet then told Sgt. Gant that Sgt. Williams denied Rivet's request to take an early lunch to meet a repairman, but she left anyway.

Rivet testified that when she asked Sgt. Williams for permission to leave work, he told her to "go, go," and she interpreted his response as permission to leave work. Rivet did not complete any emergency furlough paperwork. She did not recall which repairman had called her or what kind of emergency repair was done to her home. She failed to explain why she did not return to the office at the time that Sgt. Williams called to tell her she did not have permission to leave work.

Sgt. Franklin testified that she was assigned Rivet's disciplinary investigation and took several administrative statements. Sgt. Williams gave a statement that he denied Rivet permission to leave work. Sgt. Gant gave a statement that Rivet admitted that Sgt. Williams denied Rivet permission to leave work but Rivet left work anyway. Rivet, however, gave a statement that Sgt. Williams did not refuse her request to leave work and told her to "go, go." Sgt. Franklin concluded that Rivet violated the Truthfulness Rule by giving an administrative statement that Sgt. Williams "gave her permission when in fact he did not."

Rivet argues that the Truthfulness Rule does not apply; her statement was not "material" because it did not affect the outcome of any investigation. We disagree. According to the Truthfulness Rule a "statement is material when it could have affected the course or outcome of an investigation." (Emphasis added.) Rivet was disciplined specifically for a statement she made to Sgt. Franklin during the investigation of Rivet's conduct. Rivet's statement contradicted statements by Sgt. Williams and Sgt. Gant. There is ample support in the record for the NOPD's and CSC's findings that Rivet reported untrue facts to Sgt. Franklin that could have affected Sgt. Franklin's investigation.

Rivet also claims that she did not violate the Truthfulness Rule because she had no "intent to deceive." Rivet's argument focuses only on her conversation with Sgt. Gant, which we find does not absolve Rivet of any intent to deceive Sgt. Franklin in her investigation. Rather, Rivet's statement to Sgt. Franklin substantiates the CSC's finding that Rivet intended to deceive Sgt. Franklin. The CSC reviewed the testimony of all witnesses and deferred to the hearing officer's assessment that Rivet was not a credible witness. Again, the record supports the CSC's conclusion that "Rivet understood that she did not have permission to leave her post, but did so anyway because she felt her personal emergency took preceden[ce] over her professional responsibilities." Rivet's argument lacks merit.

We next turn to Rivet's argument that the CSC erred in finding the discipline was commensurate with the offense. The section of the NOPD Procedural Manual that contains the Disciplinary Hearings and Penalty Schedule (the "NOPD penalty matrix") was introduced into evidence at the CSC hearing. In the NOPD penalty matrix, the only penalty provided for violation of the Truthfulness Rule is termination of employment. Rivet argues, however, that termination was an overly harsh penalty under the facts of her case. She contends that this was her first discipline in her nineteen-year career with the NOPD and that she was accused of a "minor" offense. She also complains that she was a civilian employee who worked in an office and was not a commissioned police officer. According to Rivet's argument, factors other than the NOPD penalty matrix should have been considered in imposing her discipline.

Citing to Honore' v. Dep't of Pub. Works , 2014-0986, p. 17 (La. App. 4 Cir. 10/29/15), 178 So.3d 1120, 1131, Rivet argues that the CSC should have considered "the employee's work ethic, prior disciplinary records, job evaluations, and any grievances filed by the employee" in determining whether termination was an excessive penalty. We find Honore distinguishable from the facts before us. Honore did not involve an NOPD employee. As this Court explained in Stevens v. Dep't of Police , 2000-1682, p. 8 (La. App. 4 Cir. 5/9/01), 789 So.2d 622, 627 (internal citations omitted):

The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Indeed, the Commission should give heightened regard to the appointing authorities that serve as special guardians of the public's safety and operate as quasi-military institutions where strict discipline is imperative.

In its decision, the CSC found that, despite Rivet's role as a civilian employee, rather than a commissioned police officer:

...NOPD has the responsibility to demand that all of its employees conduct themselves according to the highest levels of integrity. Even administrative and ministerial tasks within NOPD's operations involve (or have the potential to involve) criminal investigations. NOPD's mission is to provide safety and security to the residents of New Orleans, and to do so ethically and in a way that promotes community. It cannot accomplish this mission if the residents do not trust NOPD personnel. Finally, the undersigned Commissioners have adopted the hearing examiner's finding that Appellant [Rivet] was evasive and not credible during her testimony. Appellant was under oath during her testimony and was not forthcoming or honest.
Based upon NOPD's role in the community, the undersigned Commissioners do not believe that dismissal is an arbitrary or capricious level of discipline for employees who are purposefully deceitful.

We find this reasoning persuasive.

Moreover, the infraction in Honore carried a range of available penalties; the factors examined in Honore are intended to evaluate the appropriateness of a particular penalty within that range of penalties. Thus, the question before this Court in Honore was whether the CSC abused its discretion in upholding the severest of those penalties. Here, however, no range of penalties applies to violations of the Truthfulness Rule. The NOPD, in its discretion as appointing authority, adopted its penalty matrix in which termination is the only penalty for violation of the Truthfulness Rule. Chief Rannie Mushatt, Deputy Superintendent of the Investigative Support Bureau, explained in his testimony that Rivet was terminated because termination is the only penalty for violation of the Truthfulness Rule.

As this Court stated in Pope v. New Orleans Police Dep't , 2004-1888, pp. 7-8 (La. App. 4 Cir. 4/20/05), 903 So.2d 1, 5 (quoting James v. Sewerage & Water Bd. of New Orleans , 505 So.2d 119, 121 (La. App. 4th Cir.1987) :

It is not the job of the Commission to decide who should be disciplined how. The appointing authority is charged with the operation of his department. He is the one who must run the department, an obviously necessary part of which is dismissing or disciplining employees. While he may not do so without cause, he may, and indeed must, within the exercise of sound discretion, dismiss or discipline an employee for sufficient cause. The Commission is not charged with such operation or such disciplining.

In reviewing an appointing authority's disciplinary decisions, the CSC's "authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty." Pope , 2004-1888, p. 5, 903 So.2d at 5 (citing Branighan , 362 So.2d at 1222 ).

While Rivet encourages this Court to undertake a form of "downward departure" with respect to her discipline, we have no authority to do so in this case. It is well-settled that this Court should not modify the discipline imposed by the CSC unless it was "arbitrary, capricious, or characterized by an abuse of discretion." Cure , 2007-0166, p. 2, 964 So.2d at 1094-95 (citation omitted). A decision by the CSC is "arbitrary or capricious" only if there is no rational basis for the action taken by the CSC. Id. , 2007-0166, p. 2, 964 So.2d at 1095 (quotation omitted). This Court has explained:

In practice, we afford great deference to the CSC's ruling supporting the decision of the appointing authority. See Serignet v. Dept. of Health , 08-0469, p. 10 (La. App. 4 Cir. 5/20/09), 15 So.3d 1019, 1025. Neither the CSC nor a reviewing court should "second-guess" an appointing authority's decisions. See Lange v. Orleans Levee District , 10-0140, p. 17 (La. 11/30/10), 56 So.3d 925, 936.... Moreover, neither the CSC nor the reviewing court may serve as a de facto pardon board. Id. "[S]ympathy is not a legal standard." Id.

Byrd v. Dep't of Police , 2012-1040, p. 10 (La. App. 4 Cir. 2/6/13), 109 So.3d 973, 980.

Despite Rivet's lengthy career with the NOPD and lack of prior discipline, we find no law or evidence in the record that would permit us to reach the conclusion that Rivet seeks. While termination seems harsh, this penalty is specifically provided for in the NOPD penalty matrix. The NOPD acted within its authority to apply its own penalty matrix and in determining that the NOPD cannot employ workers who make false statements. Considering the NOPD's role in the community and the necessity for strict discipline in quasi-military institutions like police departments, we cannot say that the CSC acted arbitrarily or capriciously in upholding the decision of the NOPD.

Lastly, we address Rivet's due process argument. Rivet claims that she had insufficient notice of the dates of her conduct or the reasons for which she was disciplined. This Court, relying on the United States Supreme Court's ruling in Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), has stated that "before a public employee ... is dismissed, she must be given notice and afforded an opportunity to respond to the charges against her." Webb v. Dep't of Safety & Permits , 543 So.2d 582, 582 (La. App. 4th Cir. 1989). "The [U.S. Supreme Court's] holding was based upon the 14th Amendment's Due Process Clause and the view that these public employees have a property interest in their employment." Id.

Likewise, Article X § 8(A) of the Louisiana Constitution provides that "[n]o person who has gained permanent status in the classified state or city civil service shall be subject to disciplinary action except for cause expressed in writing." "An appointing authority is required to afford an employee notice of the 'reasons'

for disciplinary action." Ellins v. Dep't of Health , 505 So.2d 74, 76 (La. App. 4th Cir. 1987) (citing La. R.S. 33:2423 ). In Montgomery v. Dep't of Streets , 593 So.2d 1352, 1354 (La. App. 4th Cir. 1992), this Court explained:

The purpose of the notice requirement established by the above article is to inform the employee of the charges against him in detail, and to limit and restrict the commission hearing to those charges. Ellins v. Department of Health , 505 So.2d 74, 76 (La. App. 4th Cir. 1987). Depending on the circumstances of the case, the employee must be informed of the time, place and nature of the alleged misconduct in sufficient detail to enable the employee to adequately prepare his defense. Department of Public Safety v. Rigby , 401 So.2d 1017, 1021 (La. App. 1st Cir.), writ denied 406 So.2d 626 (La. 1981). Municipal employees may not be disciplined for reasons other than those specified in the written notice. Polite v. Department of Welfare , 543 So.2d 529, 530 (La. App. 4th Cir. 1989).

"This written notice requirement pertains to the termination letter required after the employee has received a Loudermill pre-termination hearing." George v.Dep't of Fire , 93-2421, p. 10 (La. App. 4 Cir. 5/17/94), 637 So.2d 1097, 1104 (citing Brown v. Housing Authority of New Orleans , 590 So.2d 1258, 1260 (La. App. 1st Cir. 1991) ).

Rivet contends that the CSC erred by considering testimony regarding the events of April 17, 2015. She argues that these events are outside the scope of the July 9, 2015 discipline letter (the "2015 discipline letter"), which was issued to her after the pre-termination hearing. Rivet's argument stems from a typographical error in the 2015 discipline letter that went unaddressed by the litigants for two years. The 2015 discipline letter states that, on April 29, 2015, Rivet left her office to meet a repairman and held conversations with Sgt. Williams and Sgt. Gant concerning whether Rivet had permission to leave the office. These events, however, actually took place on April 17, 2015.

Rivet raised a similar argument to the CSC in a motion for summary disposition, wherein she contended that the 2015 discipline letter failed to provide her with sufficient written notice expressing the cause of her discipline for professionalism and truthfulness. The CSC denied Rivet's motion, finding that the 2015 discipline letter is "clear" that Rivet's "representations to Sergeant Franklin constitute the basis for the discipline administered by the NOPD." At the July 28, 2016 CSC hearing, Rivet made an oral motion to preclude "any statements or information regarding events that occurred on April 17, 2015" arguing that the order denying Rivet's motion for summary disposition requires that the hearing examiner "should restrict the case events of April 29th of 2015." The hearing examiner granted the oral motion.

On July 10, 2017, ten days before the CSC hearing resumed, the NOPD issued to Rivet an amended discipline letter (the "2017 discipline letter"), which was virtually identical to the 2015 discipline letter, except that the date of April 29, 2015 was corrected to April 17, 2015. Rivet argues that neither the 2015 discipline letter nor the 2017 discipline letter informed her how her conduct violated the Truthfulness Rule.

Both discipline letters contain the following description of Rivet's conduct:

Sergeant Williams advised you that you would not be allowed to relocate to your residence for personal business....
Sergeant Williams again informed you that you didn't have permission to leave the office to relocate to your residence....
...you met with Sergeant Randi Gant; of the ISB; and told her you left the office after being instructed not to do so. Sergeant Gant was later questioned and rendered a statement relative to this incident; her statement corroborated Sergeant Williams' statement....
In your statement to Sergeant Franklin ... You said you thought Sergeant Williams was having a bad day because he told you to go. You stressed that you would never leave without permission ...
Sergeant Franklin's investigation determined you left without permission and you were untruthful.

(Emphasis added).

We find that Rivet was adequately put on notice that the reason for her termination was her misrepresentation to Sgt. Franklin that she had permission to leave work; Rivet was not deprived of due process. On the facts before us, we decline to equate a mere typographical error in the date of conduct with an attempt to bring a new violation against Rivet. No new reasons for discipline were brought before the CSC. Rivet also fails to explain how she was prevented from mounting an adequate defense because of the 2015 or 2017 discipline letter. This argument is without merit.

Accordingly, for these reasons, we affirm the decision of the CSC to deny Rivet's appeal.

AFFIRMED

BARTHOLOMEW-WOODS, J., DISSENTS WITH REASONS

BARTHOLOMEW-WOODS, J., DISSENTS WITH REASONS

For the reasons that follow, I respectfully dissent from the majority's decision. I would reverse the Civil Service Commission's ("CSC") ruling, and order the New Orleans Police Department ("NOPD") to reinstate Ms. Rivet subject to a suspension.

NOPD dismissed Ms. Rivet and the CSC upheld her dismissal based on NOPD Moral Conduct Rule 2, Paragraph 3, "Honesty and Truthfulness." The Rule provides that "[e]mployees are required to be truthful at all times, in their spoken, written, or electronic communications, whether under oath or not, in all matters and official investigations relating to the scope of their employment and operations of the Department." In the present matter, Ms. Rivet was found to have made a false statement during the investigation of a disciplinary matter that was lodged against her regarding whether she had received permission to leave work during working hours. To that end, I agree with the majority's finding that Ms. Rivet did, in fact, not tell the truth during her disciplinary action investigation; however, I disagree that termination of her employment was the proper remedy and further find that such punishment was not commensurate with the infraction; thus, I find that the CSC's decision was arbitrary and capricious.

In reaching the aforementioned conclusion, I rely upon the NOPD's penalty schedule, as well as jurisprudence from this Court.

The NOPD Penalty Schedule ("the Schedule") provides the following for a violation of Moral Conduct Rule 2 Paragraph 3 Honesty and Truthfulness.

TITLE CAT 1st Offense 2nd Offense 3rd Offense Truthfulness [On Duty/Off Duty] Dismissal Dismissal Dismissal

Interestingly, although the Schedule implies that an employee can be terminated for a first offense, it goes on to proscribe penalties for both a second and a third sustained violation of this rule. By contrast, the Schedule provides the following discipline for a violation of Professional Conduct Rule 3 Paragraph 7 Use of Drugs/Substance Abuse Testing:

TITLE CAT 1st Offense 2nd Offense 3rd Offense On Duty/Off Duty Dismissal [BLANK] [BLANK]

Similarly, the Schedule provides the following discipline for a violation of Performance of Duty Rule 4 Paragraph 2 Instructions from Authoritative Source:

TITLE CAT 1st Offense 2nd Offense 3rd Offense Failure to render a statement in Dismissal [BLANK] [BLANK] an administrative investigation

Further, the Schedule provides the following discipline for a violation of Official Information Rule 6 Paragraph 5 Informants:

TITLE CAT 1st Offense 2nd Offense 3rd Offense On Duty/Off Duty Dismissal [BLANK] [BLANK]

The aforesaid different disciplines seem to suggest that if the NOPD intended for the violating employee to be terminated after a first offense for violating the "Honesty and Truthfulness" Rule, then the penalties for subsequent offenses would be left blank, as shown above for the other infractions. However, that is not the case.

As stated herein-above, I agree that the NOPD met its burden of proving that Ms. Rivet violated Moral Conduct Rule 2, Paragraph 3. However, with regard to the second prong of the review, whether NOPD's termination of Ms. Rivet is commensurate with her violation, in light of both her nineteen (19) year unblemished employment record, as well as applicable jurisprudence, I find that this is where the NOPD failed to meet its burden.

This Court has reasoned that

[t]ermination from permanent employment is the most extreme form of disciplinary action that can be taken against a city employee. Hills v. New Orleans City Council, [19]98-1101, p. 6 (La. App. 4 Cir. 12/09/98), 725 So.2d 55, 58. Cause that may justify some other lesser form of disciplinary action may not necessarily justify a dismissal. Dept. of Public Safety and Corrections, Office of State Police v. Mensman, [19]95-1950, p. 4 (La. 4/8/96), 671 So.2d 319, 321. In reviewing the disciplinary action taken by the Appointing Authority, "the Commission must consider whether the punishment was commensurate with the proven infractions under the circumstances. Id., [19]95-1950, p. 5, 671 So.2d at 322.

Honore' v. Dep't of Pub. Works , 2014-0986, p. 16 (La. App. 4 Cir. 10/29/15), 178 So.3d 1120, 1131, writ denied sub nom. Honore v. Dep't of Pub. Works , 2015-2161 (La. 1/25/16), 185 So.3d 749.

In Narcisse v. Dep't of Police , 2012-1267 (La .App. 4 Cir. 3/6/13), 110 So.3d 692, a case that is eerily similar to the present matter and based on the same NOPD rule, this Court affirmed NOPD's demotion of a police officer after finding that he failed to comply with his supervisors' verbal instructions, and NOPD's forty-five (45) day suspension of the officer after finding that he made several untruthful statements in violation of Moral Conduct Rule 2 Paragraph 3 Honesty and Truthfulness. [Emphasis added]. The CSC found that the officer was untruthful about his whereabouts during his work hours and permission to change his work schedule. The officer, who was assigned to the Public Integrity Bureau, reported to his supervisor that he had just spoken to an NOPD captain at Police Headquarters, when in fact, that particular NOPD captain was not present at Police Headquarters on the day in question. Further, the officer also claimed to have reported for duty and logged into a computer; a search of the computer's log-in record showed no indication that the officer had logged in.

In Parker v. Dep't of Police , 2007-1546 (La. App. 4 Cir. 1/24/08), 977 So.2d 180, this Court affirmed the CSC's reduction of an officer's penalty suspension. In the immediate aftermath of Hurricane Katrina, the officer completed her twelve (12) hour shift, and then, while off-duty, traveled from New Orleans to Baton Rouge to provide emergency funds and provisions to her husband and their six (6) children who had been living in the family's compact car for four (4) days after evacuating. The following day, the officer departed Baton Rouge at noon to return to New Orleans for her next ten (10) hour shift at 6:00 p.m.; as a result of the traffic, the officer arrived at 8:00p.m., two (2) hours late for her shift. NOPD found that the officer violated Performance of Duty Rule 4 and imposed a thirty (30) day suspension. The CSC found that NOPD met its burden of proof of the violation, but in consideration of mitigating factors, reduced the officer's suspension to ten (10) days.

Here, finding that Ms. Rivet's violation more in-line with the Narcisse and Parker cases, Ms. Rivet's penalty should not be termination, but rather a suspension. Prior to this one infraction, Ms. Rivet enjoyed a nineteen (19) year career with the NOPD without any other disciplinary issue. While she did, in fact, violate the Moral Conduct Rule, the drastic measure of termination, certainly does not fit the infraction and a suspension is a more suitable punishment.

For the aforementioned reasons, I respectfully disagree with the majority's opinion and find that the CSC abused its discretion and acted arbitrarily and capriciously. Accordingly, I would reverse the CSC's upholding of NOPD's termination of Ms. Rivet and order the NOPD to reinstate Ms. Rivet subject to a suspension.

      The parties ended the CSC hearing on July 28, 2016 in an attempt to reach amicable resolution of the claim. After the matter was not resolved, the hearing resumed on July 20, 2017 and August 8, 2017.

      There was one detective on duty, but he was in the field at the time that Rivet left work.

      Rivet's administrative statement is not a part of the record before us. The substance of the statement is discussed in Rivet's disciplinary hearing notification, both of her discipline letters, and Sgt. Franklin's testimony, all of which are a part of the record on appeal.

      Rivet also cites to Norbert v. LSU Health Sci. Ctr. , 2007-0161 (La. App. 1 Cir. 11/2/07), 978 So.2d 947 to support her argument that her discipline should be reduced. For the same reasons, we also find Norbert distinguishable, as the case did not involve an NOPD employee.

      We recognize that in certain reported cases, NOPD employees who violated the Truthfulness Rule prior to 2013 were suspended and/or demoted rather than terminated. See, e.g., Narcisse v. Dep't of Police , 2012-1267, p. 1 (La. App. 4 Cir. 3/6/13), 110 So.3d 692, 694 ; Pope , 2004-1888, p. 3, 903 So.2d at 3. The NOPD penalty matrix in the record was adopted on September 15, 2013, after the conduct at issue in those cases had occurred. We find no evidence in the record that, at the time of Rivet's conduct and discipline, the NOPD imposed any penalty other than termination for violation of the Truthfulness Rule.

      Termination of employment is also consistent with Rule IX, Section 1.1 of the Rules of the Civil Service Commission for the City of New Orleans, which provides:
      When an employee in the classified service is unable or unwilling to perform the duties of his/her position in a satisfactory manner, or has committed any act to the prejudice of the service, or has omitted to perform any act it was his/her duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service. The action may include one or more of the following:
      (a) termination from the service...

      La. R.S. 33:2423(B) requires that "[i]n every case of removal or reduction in pay of any employee in a competitive position in the classified service or of involuntary retirement or demotion of the employee, the appointing authority shall furnish the employee and the director a statement in writing of the reasons therefor."

      See fn. 1, infra .

      Neither discipline letter contains the date on which Sgt. Franklin took Rivet's administrative statement.

      The information contained in this chart was taken directly from the New Orleans Police Department's Procedure Manual's Disciplinary Hearing and Penalty Schedule in effect at the time of Ms. Rivet's alleged violations. This Court takes judicial notice of the NOPD Penalty Schedule, which is accessible in the public domain. Mendoza v. Mendoza , 2017-0070, p. 6 (La. App. 4 Cir. 6/6/18), 249 So.3d 67, 71, writ denied , 2018-1138 (La. 8/31/18), 251 So.3d 1083 ; Felix v. Safeway Ins. Co. , 2015-0701, p. 7 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 632 & n.10.