author: PICKETT, Judge.

text:
    Jacqueline J. GASPARD v. HORACE MANN INSURANCE COMPANY, et al.
    17-1140
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2018
    J. Lomax Jordan, Jr., Victor R. A. Ashy, 1817 West University Avenue, Lafayette, LA 70506, (337) 233-9984, COUNSEL FOR PLAINTIFF-APPELLANT: Jacqueline J. Gaspard
    C. Shannon Hardy, John. W. Penny, Jr., Penny & Hardy, 600 Jefferson Street, Suite 601, Lafayette, LA 70502, (337) 231-1955, COUNSEL FOR DEFENDANT-APPELLEE: Allstate Insurance Company
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   PICKETT, Judge.

Insured appeals the trial court's judgment that awarded her damages for injuries she sustained in an automobile accident but denied her claim for penalties and attorney fees for her uninsured motorist insurer's failure to make an unconditional tender under the uninsured motorist coverage provision of her automobile insurance policy. For the reasons discussed below, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On August 27, 2012, Jacqueline Gaspard's vehicle was rear-ended while she was stopped at a red light. She filed a suit for damages against the drivers and insurers of the two vehicles following her vehicle that were also involved in the accident. She also filed suit against Allstate Insurance Company, her uninsured motorist (UM) insurer, asserting that her damages exceeded the liability coverage of the party or parties who caused the accident. During the course of the litigation, the parties determined that the second vehicle behind Ms. Gaspard was 100% at fault for causing the accident. She settled her claims against that driver and his insurer for $50,000.00, the limits of his liability policy, and dismissed them. She also dismissed her claims against the other driver and his insurer.

Ms. Gaspard reserved her rights against Allstate and proceeded with her claims against it. She submitted demands, which included documentation of her injuries and treatment, to Allstate under McDill v. Utica Mutual Insurance Company , 475 So.2d 1085 (La.1985), seeking an unconditional tender under its UM policy. Allstate did not respond to her demands. Ms. Gaspard amended her claim against Allstate to include a claim for penalties and attorney fees under La. R.S. 22:1892 and 22:1973 for its failure to proffer an unconditional tender despite satisfactory proof that her injuries exceeded the underlying liability policy limits of Allstate's policy.

In August 2016, the trial court set the matter for trial March 13, 2017. In January 2017, an issue arose over whether the matter would be tried as a jury trial or a bench trial. Allstate demanded a jury in its answer, and the trial court signed an order setting a jury bond, as provided in La.Code Civ.P. art. 1734. Neither Allstate nor Ms. Gaspard timely filed a jury bond. After the delay for filing a jury bond lapsed, Ms. Gaspard filed a motion to have the trial court order a cash deposit to secure a jury, as provided in La.Code Civ.P. art. 1734.1, which the trial court granted. Allstate then filed a motion to rescind that order, asserting that Ms. Gaspard had waived the right to a jury trial because she had not posted a jury bond.

On February 2, 2017, the trial court held a status conference at which it heard counsel's arguments concerning Allstate's motion and granted the motion. The matter proceeded as a bench trial from March 13 through March 21, 2017. After Ms. Gaspard rested her case, Allstate moved for a directed verdict on her claims for penalties and attorney fees, which the trial court granted. Allstate then presented its defense. After Allstate rested, the parties presented closing arguments. At the conclusion of the arguments, the trial court rendered its decision in open court and stated oral reasons on the record. The trial court determined that the injuries Ms. Gaspard suffered in the August 2017 accident were an aggravation of injuries that she had suffered in a prior automobile accident on May 4, 2008. The trial court further determined that the aggravation of Ms. Gaspard's prior injuries was resolved by early February 11, 2013. It awarded Ms. Gaspard $3,314.37 in medical expenses and $8,000.00 in general damages.

On April 26, 2017, the trial court signed a judgment that conformed to its oral reasons. Ms. Gaspard filed a motion for new trial. After receiving Allstate's opposition to the motion for new trial, the trial court denied the motion and rescinded its prior order setting the motion for oral argument. On July 21, 2017, Ms. Gaspard filed a motion to recuse the trial judge, which was denied without a hearing. She then appealed the trial court's judgment.

ASSIGNMENTS OF ERROR

Ms. Gaspard assigns the following errors with the trial court proceeding and judgment:

1. The Trial Court Erred in Granting Defense Motion to Strike the Jury Trial;
2. The Trial Court Erred in Becoming the Finder-of-fact, and Should Have Self-Recused;
3. The Trial Court Erred in Denying Plaintiff's Motion for a New Trial Without a Contradictory Hearing;
4. The Trial Court Erred in Finding That Most of the Damages Proved Were Not Caused by the August 27, 2012 Crash;
5. The Trial Court Erred in Awarding Insufficient Amount of General Damages;
6. The Trial Court Erred in Not Awarding Damages For Lost Earning Capacity; and
7. The Trial Court Erred in Dismissing the Bad Faith Claims Against Allstate Insurance Company Pursuant to [ La.Code Civ.P. Article 1672 ].

DISCUSSION

Did the Trial Court Err in Granting Allstate's Motion to Strike the Jury Trial?

In her first assignment of error, Ms. Gaspard argues that the trial court erred in granting the motion to strike the jury trial filed by Allstate. On September 27, 2013, the clerk of court mailed a copy of the Jury Order the trial court signed pursuant to Allstate's demand for a jury trial in its answer. The Jury Order fixed the jury bond at $4,500.00. As noted by Ms. Gaspard, the Jury Order did not set a specific date by which the bond had to be posted. Instead, the following notice was stamped beside the trial court's signature: "Bond is to be posted no later than ninety (90) days prior to trial or this matter will be placed as a bench trial at the end of the docket." Allstate did not file a jury bond.

Ms. Gaspard argues the trial court improperly rescinded its order allowing her to make a cash deposit to secure a jury trial, thereby striking the jury. Allstate counters that Ms. Gaspard waived her right to a jury trial when she did not file a jury bond after it failed to file a jury bond. Allstate further argues that she should have filed a writ application with this court to have the issue addressed before the trial commenced and by failing to do so, she waived her right to have the issue addressed on appeal.

Central to the resolution of this issue are La.Code Civ.P. arts. 1733, 1734, and 1734.1. Article 1733 provides the method for obtaining a jury trial and requires that a party who wants a jury trial to file a pleading demanding a jury and a bond. La.Code Civ.P. art. 1733(A). It also provides that a motion to withdraw a demand for a jury trial must be in writing. La.Code Civ.P. art. 1733(B). Articles 1734 and 1734.1 allow for the filing of a bond or a cash deposit to cover the costs of a jury trial. La.Code Civ.P. arts. 1734(A) ; 1734.1(A). A bond must be posted no later than sixty days before the trial date, while a cash deposit must be made no later than thirty days before the trial date. Id. If the bond or deposit is not made by the applicable date, any other party has the right to file the bond or deposit to secure a jury trial. Id. Rule 12.0 of the Uniform District Court Rules provides that trial courts "may not require that the bond be filed or the costs paid more than 180 days before trial" and that a litigant's failure to timely post a jury bond or deposit "constitute[s] a waiver of trial by jury."

In Marshall v. Air Liquide-Big Three, Inc. , 11-990, p.15 (La.App. 4 Cir. 9/7/12), 107 So.3d 13, 26, writs denied , 12-2384 (La. 12/14/12), 104 So.3d 451, the court held:

The right to a jury in a civil trial is not constitutionally mandated. Riddle v. Bickford , 00-2408, p. 5 (La. 5/15/01), 785 So.2d 795, 799. If a "jury trial is not timely requested or sufficient bond not timely filed, the litigant loses the statutory right to a jury trial." Riddle , 00-2408 at p. 7, 785 So.2d at 799, citing Hall v. K-Mart , 99-0619 (La.App. 4 Cir. 3/1/00), 755 So.2d 1020 (untimely jury request), also citing Littleton v. Wal-Mart Stores, Inc. , 99-390 (La.App. 3 Cir. 12/1/99), 747 So.2d 701 (untimely cash deposit).

In her Motion to Fix Cash Bond, Ms. Gaspard acknowledged receipt of the September 27, 2013 Jury Order and that Allstate did not file a bond. She contends, however, that Allstate's failure to file a jury bond was a ploy to prevent her from having a jury trial. Her argument ignores that Article 1734(A) provides other parties "an additional ten days to file the bond," if the party who requested the bond does not file it. See also , La.Code Civ.P. art. 1734.1(A). Therefore, Ms. Gaspard had the right to secure a jury trial by filing a jury bond when Allstate failed to do so, but she did not. Accordingly, her failure to post the bond denied her a jury trial, not the trial court or Allstate.

Despite her protests that she desired a jury trial, Ms. Gaspard proceeded to trial without seeking review by this court of the trial court's rescission of its order allowing her to post a cash jury deposit and denial of her request for a jury trial. In Holmes v. Peoples State Bank , 35,072, p. 6 (La.App. 2 Cir. 9/26/01), 796 So.2d 176, 181, writ denied , 01-3139 (La. 2/1/02), 808 So.2d 342, cert. denied , 537 U.S. 897, 123 S.Ct. 197, 154 L.Ed.2d 167 (2002), the court held:

[T]he law is clear that when the court erroneously grants (or, in our view, refuses) a jury trial, the objecting party cannot wait until verdict and then decide whether to appeal; he must complain "prior to trial, either by application for writs or other appropriate means." Brown v. General Motors Corp. , 95-245 (La.App. 5 Cir. 10/18/95), 662 So.2d 531, writ denied , 95-3034 (La. 2/16/96), 667 So.2d 1055.

Ms. Gaspard waived her right to complain on appeal of the trial court's rescission of its order granting her the opportunity to make a cash deposit for a jury trial and trying the case in a bench trial.

Did the Trial Judge Err in Not Recusing Himself?

Ms. Gaspard first raised the issue of recusal in her motion for new trial. She also filed a separate motion to recuse the trial judge on July 21, 2017, in which she identified a number of reasons why the trial judge is biased and cannot be impartial. She argues that her attorney's candidacy for state legislator against the trial judge's brother in the 1990s caused the trial judge to be biased against her attorney. She references newspaper articles that were written during that time period and an order issued by another judge in 2000 that recused the trial judge below from continuing as judge in that matter. She also describes a conflict that developed between her attorney and the trial judge when her attorney, then a state legislator, sought to have the trial court's district redrawn such that the electorate that voted the trial judge into office would be redistricted to another district. She also cites occasions on which her attorney informed former clients of the trial judge, that the trial judge had committed malpractice while representing them. There are no references to current events or incidents that indicate the trial court is biased or prejudiced against Ms. Gaspard's counsel.

The Code of Civil Procedure identifies five situations in which a judge "shall be recused." La.Code Civ. P. art. 151(A). The only situation that might be applicable herein is when the trial judge:

(5) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.

Id. A judge "has full power and authority to act in the cause," until he recuses himself or a motion to have him recused is filed. La.Code Civ.P. art. 153. A motion to recuse must be filed before trial. La.Code Civ.P. art. 154. A judge can recuse himself from any case where "a ground for recusal exists." La.Code Civ.P. art. 152.

In In re Eleanor Pierce (Marshall) Stevens Living Trust , 17-111, 17-112, pp. 13-14 (La.App. 3 Cir. 10/4/17), 229 So.3d 36, 47 (footnote omitted), writ denied , 17-1868 (La. 1/29/18), 233 So.3d 613, another panel of this court addressed a situation in which the party seeking recusal of the trial judge argued, as Ms. Gaspard does, that Canon 3(C) of the Code of Judicial Conduct provides the standard for judicial recusal but concluded otherwise, explaining:

Significantly, Article 151"do[es] not include a 'substantial appearance of the possibility of bias' or even a 'mere appearance of impropriety' as causes for removing a judge from presiding over a given action." Slaughter [v. Board of Sup'rs of Southern Univ. , 10-1114 (La.App. 1 Cir. 8/2/11), 76 So.3d 465, 471, writ denied , 11-2112 (La. 1/13/12), 77 So.3d 970 ]. It instead requires a finding of actual bias or prejudice that is of a substantial nature, and not one based on merely conclusory allegations. Covington v. McNeese State Univ. , 10-0250 (La. 4/5/10), 32 So.3d 223. Furthermore, and as a foundational point, it is important to recall that "[a] judge is presumed to be impartial." Slaughter , 76 So.3d at 471. Thus, while we conclude that a court considering a motion to recuse directed at another judge may be informed by the contours of the Code of Judicial Conduct in its analysis of La.Code Civ.P. art. 151(A)(4), the reviewing judge's ultimate inquiry continues to question the existence of bias, prejudice or interest in the cause or outcome under that Article.

See also Pyles v. Weaver , 06-348, 06-644 (La.App. 4 Cir. 5/16/07), 958 So.2d 753, writ denied , 07-1674 (La. 11/2/07), 966 So.2d 603.

In Boone v. Reese , 04-979 (La.App. 3 Cir. 12/8/04), 889 So.2d 435, the plaintiff assigned error with the trial judge's failure to recuse himself due to his former employment with one of the defendants. The plaintiff did not file a motion to recuse the trial judge before the matter proceeded to trial. Another panel of this court held that the plaintiff's complaint was not preserved for appeal. See also Settle v. Bossier Parish Sch. Bd., 47,644 (La. App. 2 Cir. 7/3/12), 93 So.3d 1284, writ denied , 12-1569 (La. 7/11/12), 92 So.3d 347, which held that a party who fails to file a motion to recuse the judge prior to trial as required by La.Code Civ.P. art 154, despite having knowledge of the grounds for recusal waives his right to urge recusal.

Ms. Gaspard cites events that occurred twenty years ago as objective evidence that the trial judge knew he could not be impartial in trying her case. We have closely reviewed the record in this matter in conjunction with the plaintiff's arguments and find no objective evidence of the trial court being biased or impartial in the trial proceedings. Also, counsel for Ms. Gaspard knew on February 2, 2017, more than five weeks before the trial date, that her case would be decided by the trial judge, yet counsel did not to file a motion to recuse the judge before trial. Therefore, this complaint was not preserved for appeal.

Did the Trial Court Err in Denying the Plaintiff's Motion for a New Trial?

In her third assignment of error, Ms. Gaspard argues the trial court erred in denying her motion for new trial without holding a contradictory hearing on the motion. She cites La.Code Civ.P. art. 1972, which provides, in pertinent part: "A new trial shall be granted, upon contradictory motion of any party ... (1) "[w]hen the verdict or judgment appears clearly contrary to the law and the evidence" and "(2) [w]hen the verdict or judgment appears clearly contrary to the law and the evidence."

In Pittman v. Pittman , 01-2528, p. 5 (La.App. 1 Cir. 12/20/02), 836 So.2d 369, 373, writ denied , 03-1365 (La. 9/19/03), 853 So.2d 642, the court addressed this issue, explaining:

[A] motion for a new trial does not always necessitate a contradictory hearing. Sonnier v. Liberty Mutual Ins. Co. , 258 La. 813, 821, 248 So.2d 299, 302 (La.1971). But where the motion for new trial presents "the possibility that a contradictory motion might develop grounds for the trial judge to change his mind about his rulings ...," the Code of Civil Procedure may "clearly require" that a motion for new trial be set for contradictory hearing. Sonnier , 258 La. at 821-822, 248 So.2d at 302-303. Accordingly, we review the motion for new trial and attendant affidavits to analyze whether "the allegations in the motion were such as would 'clearly require' a contradictory hearing." Evans v. Ivy , 428 So.2d 886, 888 (La.App. 1 Cir.1983).

In her motion for new trial, Ms. Gaspard stated five grounds for a new trial; however, she only outlined the pertinent facts and presented argument regarding two of those grounds: the denial of jury trial and the trial judge's self-recusal. She assigns error with only four of the stated issues: the denial of a jury, self-recusal of the trial judge; the denial her claims for penalties and attorney fees, and the trial court's judgment is contrary to the evidence. The stated, but unaddressed, issues are the trial court's failure to consider a motion in limine during the trial and the trial court's refusal to allow her to present the testimony of two witnesses.

As previously discussed, the asserted grounds for the trial court's self-recusal were known to Ms. Gaspard's counsel long before this matter went to trial. As held in Boone , 889 So.2d 435, and Settle , 93 So.3d 1284, Ms. Gaspard's failure to seek recusal as provided in La.Code Civ.P. art. 154 waived her right to now urge recusal. See also Pyles, 958 So.2d at 760, where the court held that for the plaintiff to prove the trial court's denial of her motion for new trial constituted an abuse of discretion that warranted reversal, she must "show that [the trial judge's] failure to self-recuse affected the outcome of the trial."

Our review of the record reveals no objective evidence of bias by the trial judge, and as discussed below, there is no evidence that the trial judge's failure to self-recuse himself affected the outcome of the trial. Furthermore, the motion for new trial does not show that a contradictory hearing might have caused the trial court to reconsider its earlier rulings and findings of fact. Accordingly, we find no error with the trial court's denial of the motion for new trial without holding a contradictory hearing.

Did the Trial Court Err in Finding that Most of the Plaintiff's Damages were Not Caused by the Accident?

In this assignment of error, Ms. Gaspard argues the trial court erred in finding that the August 2012 accident caused her to suffer only an aggravation of injuries she sustained in her May 2008 accident and did not cause any additional injuries.

As plaintiff, Ms. Gaspard bears the burden of proving, by a preponderance of the evidence, "a causal relationship between the injury sustained and the accident which caused the injury." Maranto v. Goodyear Tire & Rubber Co. , 94-2603, 94-2615, p. 3 (La. 2/20/95), 650 So.2d 757, 759. To carry her burden of proof, she must prove "through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident." Id. Proof is sufficient to constitute a preponderance "when the entirety of the evidence, both direct and circumstantial, shows the fact or causation sought to be proved is more probable than not." Cangelosi v. Our Lady of the Lake Reg'l Med. Ctr. , 564 So.2d 654, 664 (La. 1989).

Causation is an issue of fact subject to the manifest error standard of review. Rando v. Anco Insulations, Inc. , 08-1163, 08-1169 (La. 5/22/09), 16 So.3d 1065. To reverse a trial court's determination of a fact under the manifest error standard, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist for the finding and that the record establishes the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Dep't of Transp. & Dev. , 617 So.2d 880 (La. 1993).

As the trier of fact, a trial court determines the credibility of the witnesses and has the prerogative of accepting or rejecting some or all of the witnesses' testimony, including expert witness testimony. Ryan v. Zurich Amer. Ins. Co. , 07-2312 (La. 7/1/08), 988 So.2d 214. The trial court's findings of fact, credibility evaluations, and inferences of fact should not be disturbed on appeal if they are reasonable. Sistler v. Liberty Mut. Ins. Co. , 558 So.2d 1106 (La. 1990). On review, an appellate court "must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently." Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 9 (La. 12/8/15), 193 So.3d 1110, 1116.

Just over four years before the August 2012 accident, on May 4, 2008, Ms. Gaspard was involved in another rear-end collision. The trial court held that the August 2012 accident aggravated Ms. Gaspard's pre-existing condition for six months. Ms. Gaspard contends, however, that she suffered new injuries in the August 2012 accident and that the trial court was manifestly erroneous in finding otherwise. Specifically, she argues that the August 2012 accident caused a previously injured disc in her cervical spine at C5-6, to herniate and dislocated her left shoulder.

The medical evidence shows that after the May 2008 accident, Ms. Gaspard complained of pain in her neck, left shoulder, and left arm. She also reported discomfort in the back of her left hand and trouble sleeping on that side. A 2008 MRI of her neck showed small left-sided disc herniations at C4-5 and C5-6 with some protrusion on the left side. In September 2010, Ms. Gaspard complained of left-sided neck and arm pain with numbness in three fingers on her left hand. Her pain was significantly higher at that time. Ms. Gaspard treated with Dr. Wyble through June 2011.

In January 2011, Ms. Gaspard began treating regularly with Dr. Tracy Richardson, a chiropractor. She complained of pain radiating down her left arm with tightness in the middle, ring, and pinky fingers. Ms. Gaspard indicated on her patient summary form that she had left neck, arm, and shoulder pain, as well as headaches since the May 2008 accident. In 2011, Ms. Gaspard also complained of difficulty lifting things and reported on a patient form, "I can barely lift anything." She also complained of sleep disturbance because of her left arm in 2011. She saw Dr. Richardson forty-one times between January 2011 and June 28, 2012, her last visit before the August 2012 accident. During that time, her complaints waxed and waned. Dr. Richardson testified that as of June 28, 2012, he considered her to be approaching maximum medical improvement but acknowledged that it was more likely than not she would continue to have some level of pain and discomfort in her neck, left arm, and left shoulder.

The August 2012 accident occurred at 6:40 in the morning as Ms. Gaspard was driving to work. She did not go to the emergency room after the accident as she had after the May 2008 accident. After work that day, she returned to Dr. Richardson, complaining only of a sore neck. Thereafter, Ms. Gaspard's complaints related to her neck, left shoulder, left arm, and occasional headaches, just as before the accident. She rated her pain as threes and fours, with the exception of September 24. On that day, she complained of a headache that she rated seven. She also complained of a headache on October 3, that she rated seven. On October 10, Ms. Gaspard rated her pain as two, and on October 17, she rated it as one. Thereafter, until early February 25, 2013, Ms. Gaspard's complaints to Dr. Richardson were essentially identical to her complaints before the August 2012 accident: complaints of pain in her neck, left arm, and left shoulder which she rated as one to two. When she returned on February 11, 2013, she rated her left arm pain as one to two and her other complaints as one. Two weeks later, Ms. Gaspard returned with complaints of increased pain in her neck and left arm which she rated as a seven. She also complained of pain in her left shoulder which she rated as nine and a headache she rated as seven.

After February 2013, Ms. Gaspard treated with Dr. Edward Scott Yerger, an orthopedist, who diagnosed her shoulder complaints as multidirectional instability (MDI) of her left shoulder. Dr. Yerger testified MDI was a congenital condition caused by laxity of the shoulder muscles that he described as a chronic condition that can be exacerbated by an injury.

Ms. Gaspard then sought treatment with Dr. John B. Sledge III, an orthopedic surgeon who subspecializes in spine-related issues and joint-related problems. Dr. Sledge ordered a new MRI of her neck and an MRI of her left shoulder. He opined Ms. Gaspard's new cervical MRI, showed a natural progression of C4-5 changes with an extruded fragment depicted on the 2008 MRI having been resorbed. He further testified that the MRI showed a new left-sided paracentral disc herniation with extruded fragment at C5-6. Dr. Sledge attributed this herniation and extruded fragment to the August 2012 accident; however, he agreed that Ms. Gaspard had some C5-6 pathology in 2008. In his opinion, the changes at C5-6 had to occur in a more acute and traumatic fashion than natural progression due to the extruded fragment.

Dr. Sledge acknowledged that Ms. Gaspard had experienced an acute change of circumstances in 2010 and that her symptoms at that time could correlate with her C5-6 issues. He also admitted that without additional testing having been performed when her complaints increased, there is no way to say whether those complaints were caused by the C5-6 herniation and fragment. Nevertheless, he opined that her symptoms alone do not explain the C5-6 changes and that there must have been an event to explain the injury that generated those specific symptoms.

Allstate had Ms. Gaspard examined by Dr. Michael Williams, an orthopedic surgeon who specializes in shoulders and elbows, and Dr. Neil Romero, an orthopedic surgeon with a subspecialty in the spine including the neck. Dr. Williams diagnosed Ms. Gaspard's left shoulder pain as capsulitis or frozen shoulder. Although he did not agree with Dr. Yerger's diagnosis of MDI, he agreed with his assessment that Ms. Gaspard's shoulder complaints are referred pain from her neck. Dr. Williams also disagreed with Dr. Sledge's diagnosis of dislocated shoulder, explaining that there would be obvious damage on the shoulder socket if her shoulder had been dislocated, and no such damage appeared on the MRI. He further explained that a dislocated shoulder causes such pain and discomfort that Ms. Gaspard most likely would have complained of pain at the time of the accident or shortly thereafter. As previously noted, Ms. Gaspard complained only of a sore neck the day of that accident; she did not complain of shoulder pain.

In January 2017, Dr. Romero examined Ms. Gaspard in connection with her neck pain. Based on his examination, Dr. Romero testified that his examination was essentially benign with the exception of complaints of pain and mild decreased range of motion. He compared the two MRIs of Ms. Gaspard's neck and noted that the July 2015 MRI showed a mild progression of issues at C4-5 with more progression of the issues at C-5-6. Based on her increased complaints of left arm, left shoulder, and neck pain with radiculopathy into her hand to Dr. Wyble in 2010, he opined those complaints were consistent with her current complaints which he felt were more progressive. In Dr. Romero's opinion, Ms. Gaspard's 2008 complaints and symptoms were consistent with the 2008 MRI, but her increase in complaints and symptoms that began in 2010 and continued thereafter were consistent with the 2015 MRI. In his opinion, Ms. Gaspard suffered an aggravation of her pre-August 2012 symptoms for three months or so then was back at her pre-accident level. Dr. Romero did not attribute any change between the 2008 and 2015 MRIs to the August 2012 accident.

The trial court concluded that Ms. Gaspard more likely than not suffered an aggravation of her condition that pre-existed the August 27, 2012 accident and that this aggravation lasted until early February 2013. The expert medical testimony conflicts with regard to the disc herniation at C5-6 and whether it was caused by the August 2012 accident or whether it was a natural progression of the condition evidenced on the 2008 MRI. It also conflicts with regard to the diagnosis for her left shoulder. Ms. Gaspard's complaints waxed and waned before and after the accident. As held by the trial court, Ms. Gaspard's complaints after the August 2012 accident returned to her pre-existing baseline of ones and twos that she had before the accident. We find the trial court's conclusion is reasonable and, therefore, not manifestly erroneous.

Were the Trial Court's Damage Awards Insufficient?

The trial court awarded Ms. Gaspard medical expenses in the amount of $3,314.37 and damages in the amount of $8,000.00 for six months of pain and suffering. Ms. Gaspard complains that these awards are too low.

An appellate court can disturb a trial court's award of general damages only if the record clearly shows that the award constitutes an abuse of discretion. Thibodeaux v. Donnell , 16-570 (La. 1/20/17), 219 So.3d 274. We note at this point, that to recover from a UM insurer, an insured must establish that "the tortfeasor was liable for damages in an amount in excess of the tortfeasor's liability insurance policy limits. Butler v. Allen, 00-1726, p. 5 (La.App. 1 Cir. 9/28/01), 808 So.2d 746, 749, writ denied, 01-2924 (La. 2/1/02), 808 So.2d 331. Accordingly, Allstate is not liable to Ms. Gaspard her damages exceed $50,000.00.

Although this court might have awarded more than $8,000.00 for six months of pain and suffering if it had been the trier of fact, that is not the standard of review. Bouquet v. Wal-Mart Stores, Inc. , 08-309 (La. 4/4/08), 979 So.2d 456. Under the circumstances of this case, we cannot say that the award is an abuse of discretion.

Special damages, such as medical expenses, must be proved with some degree of certainty. Wainwright v. Fontenot , 00-492 (La. 10/17/00), 774 So.2d 70. Special damages must be proved by a preponderance of the evidence. Cormier v. Colston , 05-507 (La.App. 3 Cir. 12/30/05), 918 So.2d 541. Our review of Ms. Gaspard's medical records shows that her medical treatment from the date of the accident through February 11, 2013, was by Dr. Richardson and that the trial court's award of $3,314.37 is accurate and not an abuse of discretion.

Did the Trial Court Err in Not Awarding Damages for Lost Earning Capacity?

Ms. Gaspard argues the trial court erred in determining that she suffered a loss of earning capacity. A loss of earning capacity award is not based merely upon the difference between an injured person's earnings before and after a disabling injury, but also on the loss or reduction of his ability to earn money. Hobgood v. Aucoin, 574 So.2d 344 (La. 1990). Ms. Gaspard did not assert a claim for lost wages because she did not miss any work due the accident. Based on the trial court's conclusion that Ms. Gaspard suffered only a six-month aggravation of her pre-existing condition, we find no error with its failure to award her damages for loss of earning capacity.

Did the Trial Court Err in Dismissing Ms. Gaspard's Claims for Penalties and Attorney Fees?

After Ms. Gaspard rested her case, Allstate moved for an involuntary dismissal of her claims for penalties and attorney fees under La. R.S 22:1982 and 1973. These two statutes outline the obligations insurers owe to their insureds to timely and fairly adjust claims upon receipt of proof of damages covered under a policy of insurance and the consequences for an insurer's failure adjust such claims as provided by the statutes. The trial court granted the motion and dismissed those claims. Ms. Gaspard argues the trial court erred in doing so.

As explained above, Allstate had no duty to pay Ms. Gaspard damages until she established that her damages exceeded $50,000.00. Having determined that the trial court's damage awards totaling $11,314.37 are not manifestly erroneous, we need not address this assignment of error.

DISPOSITION

The trial court's judgment is affirmed. All costs are assessed to Jacqueline Gaspard.

AFFIRMED.


source: Caselaw Access Project

author: Judge Rosemary Ledet

license: Public Domain

text:
    Edward Trent ROBINSON v. The CITY OF NEW ORLEANS; Dr. Jared Munster, in his Capacity as the Director of the Department of Safety and Permits; and the Board of Zoning Adjustments
    NO. 2018-CA-0032
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 16, 2018
    Sharonda R. Williams, FISHMAN HAYGOOD, L.L.P., 201 St. Charles Avenue, 46th Floor, New Orleans, LA 70170-4600, COUNSEL FOR PLAINTIFF/APPELLEE
    Daniel T. Smith, ASSISTANT CITY ATTORNEY, Shawn Lindsay, DEPUTY CITY ATTORNEY, Rebecca H. Dietz, CITY ATTORNEY, 1300 Perdido Street, City Hall-Room 5E-03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Paula A. Brown )
   Judge Rosemary Ledet

This is a zoning case. The plaintiff, Edward Trent Robinson, applied for a permit to operate a social club. Both the Director of the Department of Safety and Permits, Jared Munster, Ph. D (the "Director"), and the New Orleans Board of Zoning Adjustments (the "BZA") denied Mr. Robinson's request for a permit, finding the proposed use did not meet the definition of a social club under the Comprehensive Zoning Ordinance for the City of New Orleans ("CZO"). On Mr. Robinson's appeal, the trial court reversed. From the trial court's judgment, the City of New Orleans (the "City"), the Director, and the BZA (collectively, the "Appellants") appeal to this court. For the reasons that follow, we reverse the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This dispute arises out of Mr. Robinson's application to operate a social club to promote various cultural aspects of the City-the Mardi Gras Indians, art, food, and music. Before applying for the permit, Mr. Robinson registered the social club-the Crescent City Connection Gris-Gris Pleasure Aide and Social Club ("Crescent City")-with the Louisiana Secretary of State as a non-profit corporation. Crescent City is a tax-exempt entity; and Mr. Robinson is its president. Crescent City will be open to anyone who pays the membership fee; Mr. Robinson initially set the membership fee at $1,377 per year, coinciding with the street address for the selected venue. The selected venue for the social club is an old, former firehouse located at 1377 Annunciation Street in New Orleans, Louisiana (the "Property"). Mr. Robinson leased the Property from Tim Bonura/TMF Hotel Properties.

Under the CZO, the Property is located in the Historic Urban Neighborhood Business District ("HU-B1A") zoning district. In the HU-B1A zoning district, a social club is a permissible use; a live performance venue is not. See Section 12.2.A (Table 12-1) of CZO. A social club and a live performance venue are defined in Section 26.6 of the CZO as follows:

Social club or lodge. Structures operated by an organization or association for some common purpose, such as, but not limited to, a fraternal, social, educational, or recreational purpose or a union hall, but not including clubs organized primarily for profit or to render a service which is customarily earned on as a business. Such organizations and associations shall be incorporated under the laws of Louisiana as a nonprofit corporation or registered with the Secretary of State of Louisiana. Fraternities/sororities are not considered social clubs or lodges
Live performance venue . An indoor facility for the presentation of live performances, including musical acts, theatrical plays or acts, stand-up comedy, magic, dance clubs, and disc jockey performances using vinyl records, compact discs, computers, or digital music players. A live performance venue is only open to the public when a live performance is scheduled. Unless otherwise restricted by this Ordinance, a live performance venue may serve alcoholic beverages as an ancillary use but only when the venue is open to the public for the live performance. A live performance venue does not include any adult uses.

Classifying Mr. Robinson's proposal as a "Live Performance Venue/Bar," the Director denied Mr. Robinson's permit application. In his February 23, 2017 Letter of Determination, the Director gave the following reasons for his decision:

The proposal, as it is understood by the Department, contemplates a members-only social club which will operate a restaurant offering breakfast, lunch, and dinner meal service with live entertainment during lunch and dinner with additional music performances after dinner service on a nightly basis.
Upon evaluating the proposal and upon further clarification of the proposed operating parameters, the Department ... has maintained its initial determination that this proposal constitutes a Live Performance Venue/Bar, which is not a permissible use in the HU-B1A, Historic Urban Neighborhood Business District.
While we appreciate that the entity that will be operating the establishment is a non-profit social club for the benefit of its membership, the Department is bound by the language of the Comprehensive Zoning Ordinance in making this determination .... It is true that your proposal makes a distinction between being "open to the public" and being restricted to members only; however, the Department cannot differentiate between the availability of walk-up one-day-membership deposit entry and the sale of tickets for a performance.
Additionally, the definition of Social Club or Lodge ... "[excludes] clubs organized primarily for profit or to render a service which is customarily carried on as a business." As the uses contemplated within the social club are services customarily carried on as a business, the Department must analyze the proposal as that business type. Unfortunately a Live Performance Venue is not a Permitted Use within the HU-B1A Zoning district.

The Director further noted that the operating parameters set forth in Section 20.3 CCC of the CZA "are supplemental to the definitional standards provided in Article 26" and that "one must first look to the definitional requirements to determine the proper classification of the proposed use."

On April 10, 2017, Mr. Robinson appealed the Director's decision to the BZA. As part of his appeal, his attorney sent a letter to the BZA. Arguing Crescent City was in compliance with all the pertinent provisions of the CZO regarding the definition and use standards for a social club, his attorney stated the following:

• Crescent City is a [Section] 501(c)(7) [of the Internal Revenue Code] that is registered as a non-profit corporation with the Louisiana Secretary of State as such.
• Crescent City is seeking a permit to operate as a social club for a common purpose of promoting New Orleans arts, music, and culture.
• Crescent City is seeking to operate the social club at 1377 Annunciation, and not more than 50% of the floor space at that location will be used for office space.
• Crescent City anticipates serving food and beverages only to its members. It is anticipated that culinary instruction and training would be an aspect of the use of the space.
• Crescent City will comply with all laws and regulations related to lease of the space for any receptions.

Mr. Robinson's attorney also stated that the proposed business was not a live performance venue, as the Director found, for two reasons: "(1) the social club would not be open to the public and (2) the social club would not be open only during live performances."

On June 5, 2017, two representatives of the neighborhood sent emails to the BZA voicing their opposition to Mr. Robinson's proposed venture. First, Julie Simpson, the president of Coliseum Square Association, stated in her email that "the greater portion of [Mr. Robinson's] venture, evidenced by the large floor space taken up with a stage and viewing area for the stage, gave neighbors great pause in supporting the music component of his project." She further stated that "nightly live music was a very real part of this club." She observed that the building, which has no real sound deadening equipment, is very large with vintage windows and surrounded by residential properties on all sides.

The second email was from Louis J. Volz, III, a former president of Coliseum Square Association and a former City Planning Commission member. In his email, Mr. Volz stated that an attempt to have a social club that functions more as a live music and entertainment venue is inconsistent with the CZO and that "[t]he proximity of the proposed facility to residential components would be injurious to the residents of the neighborhood." He also stated that the "[m]ere use of a name that includes the term 'social club' is hardly dispositive of actual use and intent."

In an email exchange dated May 15, 2017, Mr. Robinson requested that the statement regarding his appeal on the BZA's agenda be clarified. Regarding Mr. Robinson's appeal, the BZA's agenda stated as follows:

Denial of permit (application number 17-02463-RNVN) to operate as a members only social club, which will serve meals and offer live entertainment during lunch and dinner service. The definition of "social club" prohibits operations for profit or to render a service customarily carried on by a business. The Director asserts live musical performances in a social club constitute activities customarily carried on by a business.

In his email, Mr. Robinson asserted that the BZA's agenda was "inaccurate, as Director Munster has officially recognized our intended occupancy as Social Club or Lodge as per city code [CZO Article] 20.3.CCC; however, yet [he] did not recognize the right to have live entertainment for our membership which is what we are seeking to appeal before the board."

In response, the Director, on the same date, wrote:

The request as state[d] on the agenda is correct. The question at issue is whether the use as it was proposed is properly classified as a social club or something different. You have changed the operating parameters since that time to bring it within what is allowable as a social club per this Department's standards.

Mr. Robinson replied: "[t]o be clear, we will [be] appealing our right as a 20.3.CCC to live entertainment before the BZA correct?" The City Planner replied:

You are technically appealing the determination of the Director of the Department of Safety & Permits pertaining to the letter dated February 23, "1377 Annunciation St.-permit application 17-02463-RNVN.["]
In reading that letter, the appeal will be focused around Article 26's definition of Social Club or Lodge. As Dr. Munster mentions below, "... whether the use as it was proposed is properly classified as a social club or something different."

At the June 12, 2017 BZA hearing, multiple witnesses testified, including Mr. Robinson, his attorney, the Director, and representatives of the neighborhood. The neighborhood representatives echoed the views expressed in Ms. Simpson's and Mr. Volz's emails; the gist of their testimony was that the proposed use of the Property was not as a social club, but rather as a live performance venue or nightclub. Mr. Robinson's attorney repeated the arguments set forth in her letter to the BZA. His attorney also emphasized that, in response to the Director's concerns, Mr. Robinson had removed the daily membership option from his proposed use of the Property. The Director replied that he had reservations about Mr. Robinson amending his business proposal "on the fly" and that the substance of his opinion would not change based on Mr. Robinson's revisions. He opined that "this is a live entertainment venue regardless of whether that membership has to be paid at the door, all $1,300 of it, or can be broken down across months or days."

Ultimately, the dispositive issue before the BZA was whether the Director correctly classified the proposal as a "Live Performance Venue/Bar." Addressing the classification issue, the Director testified that it is the role of the Department of Safety and Permits to make sure that a proposed use coincides with the use and definition standards in the CZO. The Director explained that "if it acts like a business, we have to treat it like the business it acts like." The Director determined that Mr. Robinson's proposed venture acts more like a live performance venue than a social club. Given that a live performance venue is not allowed in the HU-B1A zoning district, the Director requested that the BZA uphold his denial of the permit. The BZA voted three-to-one to deny the appeal.

On July 12, 2017, Mr. Robinson filed a "Verified Petition for Writ of Review," pursuant to Article 4.8(B) of the CZO and La. R.S. 33:4727(E)(1), in the trial court, naming Appellants as defendants. In his petition, Mr. Robinson averred that the Director's decision "looks beyond the fact that a social club is a permitted use in the zoning district." He averred that the Director denied his permit on the following two grounds:

(1) Mr. Robinson was seeking to establish a Live Performance Venue, which is not permitted in the HU-BIA zoning district[;] and
(2) the music and Mardi Gras Indian workshops would constitute live performances that are services customarily carried on as a business.

Mr. Robinson further averred that the BZA's decision is "not supported by the express language of the CZO, and the decision is, without question, arbitrary, unreasonable, and capricious considering the inconsistent application of the definition of 'social club.' " He still further averred that the definition of social club, as set forth in the CZO, is being applied differently to persons similarly situated, violating his right to equal protection.

On November 7, 2017, the trial court found the BZA's decision to uphold the Director's denial of the permit was arbitrary and capricious and, thus, reversed the decision. The trial court provided the following reasons for judgment:

Initially, the court notes that Mr. Robinson requested a permit to operate a social club. The club will be used by the Wild Magnolias[-a Mardi Gras Indian group-]as their home base to store and sew their suits and there will be live music on occasion. And, when [D]efendants voiced concerns that allowing a daily membership fee for members would appear to be a live performance venue rather than a social club, Mr. Robinson revised his business model to delete the daily membership fees as an option.
The court finds that this proposed social club meets the definition of a social club as it is incorporated under the laws of Louisiana and is registered with the Louisiana Secretary of State ....
While the BZA maintains that the proposed social club is actually a live music venue, in Flex Enterprises, Inc. v. the City of New Orleans , [00-0815 (La. App. 4 Cir. 2/14/01),] 780 So.2d 1145... the court held that when property is zoned to allow a specific type of establishment, AND the proposed establishment meets the zoning requirements, the BZA is arbitrary and capricious if it denies the permit simply because [the BZA] believes that the property will actually be used for an improper or illegal purpose.
In the case at bar, because the evidence reflects that Mr. Robinson applied to operate a social club, the proposed establishment meets the definition of a social club as provided in the CZO, and social clubs are permitted in HU-B1A zoning districts, the court finds that the BZA was arbitrary and capricious in denying Mr. Robinson's request for a permit to operate a social club at 1377 Annunciation Street.
This appeal followed.

STANDARD OF REVIEW

Summarizing the standard for reviewing decisions of the BZA, this court, in Ellsworth v. City of New Orleans, stated as follows:

The jurisprudence has recognized that "the decisions of the BZA, while subject to judicial review under La. R.S. 33:4727(e), are subject to a presumption of validity and are subject to judicial review only as to whether they are arbitrary, capricious or an abuse of discretion." The jurisprudence has further recognized that "[t]he reviewing court may not simply substitute its own judgment for that of the BZA." The jurisprudence has still further recognized that it " 'is not within the province of the appellate court to second guess a zoning decision that appears to have been based on appropriate and well-founded concerns for the public.' "

13-0084, pp. 6-7 (La. App. 4 Cir. 7/31/13), 120 So.3d 897, 902 (internal citations omitted).

In this context, we review the BZA's, not the district court's, decision. In re Aggrieved Practitioner , 17-0298, pp. 17-18 (La. App. 4 Cir. 11/15/17), 231 So.3d 761, 771, writ denied , 17-2085 (La. 2/9/18), 236 So.3d 1267 (observing that "an appellate court sitting in review of an administrative agency reviews the findings and ultimate decision of the administrative agency and not the decision of the district court"). "When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court." Bourgeois v. Louisiana State Racing Comm'n , 10-0573 (La. App. 4 Cir. 11/12/10), 51 So.3d 851, 856 (quoting Smith v. State, Dep't of Health and Hospitals , 39,368, p. 7 (La. App. 2 Cir. 03/02/05), 895 So.2d 735, 739 ). For this reason, " '[w]hen an appellate court reviews the district court's judgment, no deference is owed by the appellate court to the district court's fact findings or legal conclusions, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal.' " Aggrieved Practitioner , 17-0298 at p. 17, N. 12, 231 So.3d at 771 (quoting Bourgeois , supra (quoting Smith , supra ) ).

DISCUSSION

The principal issue presented in this appeal is whether the BZA's decision to uphold the Director's denial of Mr. Robinson's permit application was arbitrary and capricious. Resolution of this issue turns on the distinction between the use of the Property as a social club-the label Mr. Robinson places on it and a permissible use in the HU-B1A zoning district-and a live performance venue-the label the Director places on it and a prohibited use in that zoning district.

Appellants contend that the Director, when classifying the proposed use of the Property, reviewed Mr. Robinson's application based upon how the proposed venture would actually function. The Director, they contend, acted appropriately when he determined that the proposed venture, overall, is more akin to a live performance venue than a social club. They further contend that the Director and the BZA are vested with the discretion to make that type of determination, particularly when, as here, the unenumerated use-a live performance venue-is specifically excluded in the CZO from the underlying zoning district.

Appellants also contend that despite the "social club" label that Mr. Robinson places on his proposed venture and "despite that social clubs may have incidental live performances where the underlying zoning allows ," an organization that "render[s] a service which is customarily carried on as a business" is not a social club under Section 26.6 of the CZO. Appellants emphasize that Mr. Robinson proposes to have regular live music performances on the Property and that this is a service customarily carried on by a business. Appellants point out that "although live music is not prohibited as a use in a social club, it is also not an enumerated use by right." Appellants also point out that the BZA had the opportunity to agree with Mr. Robinson that live entertainment is inherently allowed in a social club, but it declined to do so. Based on the evidence presented, Appellants contend that the BZA's decision is neither arbitrary nor capricious.

Mr. Robinson counters that, in this case, Appellants are seeking to impose an additional restriction on a social club that is not included in the definition of that term in the CZO-that "a social club cannot have a purpose or carry on any activity that would otherwise be prohibited in the zoning district." The additional limitation that he contends Appellants are seeking to impose is that a social club cannot have live entertainment if it is not permitted in the zoning district. Citing Flex Enterprises , supra , Mr. Robinson contends that "if live entertainment seems inconsistent with the permitted use of a social club, such a prohibition of live entertainment must be clearly set forth in the CZO and not imposed on a case-by-case basis." Moreover, he contends that Appellants are seeking to apply the definition of social club differently depending on the location of the social club. He argues that, during the BZA hearing, other social clubs were discussed that are permitted to have live entertainment, establishing an equal protection violation. He, thus, contends that the BZA's decision to uphold the Director's decision, as the trial court found, was arbitrary and capricious.

We find the trial court erred in reversing the decision of the BZA for the following two reasons: (i) the BZA's decision is consistent with the CZO, which expressly restricts the use of property as a live entertainment venue; and (ii) the Flex Enterprises case, on which the trial court relies, is distinguishable. We separately address each reason.

CZO regulations on the use of property as a live entertainment venue

Three of the generic uses of property identified in the CZO are pertinent to the instant dispute-"Social club or lodge"; "Live performance venue"; and "Live entertainment-secondary use." The CZO definitions of the first two generic uses are set forth elsewhere in this opinion; the CZO definition of "Live entertainment-secondary use" is set forth below:

Live entertainment-secondary use. Any one (1) or more of any of the following live performances, performed live by one (1) or more persons, whether or not done for compensation and whether or not admission is charged: musical act, theatrical play or act, including stand-up comedy, magic, dance clubs, and disc jockey performances using vinyl records, compact discs, computers, or digital music players when the disc jockey is in verbal communication with the clientele of the establishment. Live entertainment-secondary use shall be part of a standard restaurant, specialty restaurant, indoor amusement facility or bar, and shall be approved separately. A standard restaurant, specialty restaurant, indoor amusement facility, or bar may be open to the public when no live performances are scheduled. Live entertainment-secondary use does not include:
A. Any such activity performed for the practice or private enjoyment of the residents of a dwelling and their guests.
B. Any adult uses.
C. Periodic entertainment at educational facilities or places of worship, performances at cultural facilities, performances at reception facilities, performances at weddings or similar religious events, the playing of recorded music over speakers without a disc jockey, poetry readings, or spoken word performances.
D. Musical accompaniment for patrons at a restaurant (standard or specialty), in conformance with [enumerated use standards].

Article 26.6 of the CZO.

The usage requirements for both "Live performance venue," and "Live entertainment-secondary use" are provided for in Section 20.3 JJ of the CZO as follows:

1. Live entertainment-secondary use is considered a separate principal use. Live entertainment-secondary use may only be established when allowed within a zoning district and in conjunction with a bar, standard restaurant, or indoor amusement facility.
2. Live entertainment-secondary use and live performance venues shall submit a noise abatement plan, to be reviewed by the Director of Safety and Permits, and all other appropriate City agencies, which shall address the intended use of amplification, noise levels, and need for soundproofing. Outdoor live entertainment areas located within thirty (30) feet of a residential district shall be a conditional use.
3. Live entertainment-secondary use and live performance venues shall submit a security and operation plan, with the following added:
a. For Live entertainment-secondary use, the days and hours of operation for the establishment's general operations as a standard restaurant or bar, and the days and hours of operation for the live entertainment component.
b. The configuration of the live entertainment area within the establishment.
c. Loading areas.
d. All Live entertainment-secondary use and live performance shall provide exterior security cameras.
4. Live entertainment-secondary use and live performance venues shall submit a summary of the number and location of places of worship, educational facilities, and parks and playgrounds within three-hundred (300) feet of the proposed location.
5. Windows and doors shall be closed during live entertainment performances and compliance with the City of New Orleans Noise Ordinance is required. In the Vieux Carré Districts, music of any kind is prohibited outside the building, unless authorized through the conditional use process.
6. If the live entertainment-secondary use and live performance venues use plans an increase in intensity, such as an expansion of floor area, increase in live performance area or increase in permitted occupancy, a security and operation plan shall be updated and resubmitted for approval. Revised security and operation plans shall be approved prior to the issuance of any permits.
7. Security and operation plans may be revised by the property owner or person authorized in writing by the owner. New plans shall be resubmitted for approval.
8. Because live entertainment-secondary use is only allowed with a bar, standard restaurant, or indoor amusement facility, when the submittal requirements of live entertainment-secondary use and standard restaurant or bar are duplicated, only one (1) set of submittal requirements is required to be submitted and updated.

As the above provisions reflect, the CZO regulates the use of property as a live entertainment venue in two ways: (i) as a primary use-a Live entertainment venue; and (ii) as a secondary use-a Live entertainment-secondary use. In the HU-B1A zoning district in which the Property is located, neither type of live entertainment venue is permitted. See Section 12.2.A (Table 12-1) of CZO.

The CZO also expressly excludes certain categories of performances from the live entertainment use category. The exclusions are enumerated in the definition of "Live entertainment-secondary use," quoted elsewhere in this opinion. The exclusions include adult uses, which are regulated elsewhere in the CZO; uses that are part of the general character of the property-"periodic entertainment at educational facilities or places of worship, performances at cultural facilities, performances at reception facilities, performances at weddings or similar religious events, the playing of recorded music over speakers without a disc jockey, poetry readings, or spoken word performances"-and "[a]ny such activity performed for the practice or private enjoyment of the residents of a dwelling and their guests." Article 26.6 of the CZO. The exclusions from the live entertainment use category do not include performances at a "Social club or lodge."

Given that neither type of live entertainment venue-"Live entertainment venue" or "Live entertainment-secondary use"-is permitted in the HU-B1A zoning district in which the Property is located coupled with the lack of an exclusion of live entertainment performances at a "Social club or lodge" from the live entertainment use category, the BZA's denial of Mr. Robinson's appeal is consistent with the CZO.

The Flex Enterprise s case is distinguishable

The trial court, in reversing the BZA, relied on the Flex Enterprises case. The trial court's reliance on that case is misplaced. In Flex Enterprises , the then-Director of Safety and Permits, Paul May, denied the plaintiff's request for a permit to operate a health club in the CBD-7 zoning district. Director May's reason for doing so included that the layout of the proposed business-the percentage of space dedicated to exercise equipment and the large number of little cubicles (fifty-two)-was inconsistent with a typical, bona fide health club. At the BZA hearing, a citizen testified that the proposed business was a "gay bathhouse," which he said was "clearly a spa as defined by our zoning ordinances." The BZA upheld Director May's decision to deny the permit, and the trial court found no evidence that the BZA acted arbitrarily or capriciously.

Reversing, this court in Flex Enterprises reasoned that Director May and the BZA were "seeking to impose additional requirements that are not expressed in the zoning ordinance, as well as limitations that are not expressed therein." Id. , 00-0815 at p. 11, 780 So.2d at 1152. Continuing, we stated as follows:

Whatever the true nature of the proposed establishment, the fact is that the record evidence indicates that the establishment qualifies as a "health club" under the New Orleans CZO, as it now reads .... If certain establishments are to be prohibited in an area either because they include certain items that seem inconsistent to zoning officials with the permitted uses of the zoning classification or because a certain percentage of the establishment is not devoted to a particular purpose, such rules must be clearly set forth in the official zoning ordinance, not imposed on a case-by-case basis.

Id. , 00-0815 at pp. 10-11, 780 So.2d at 1151-52. We thus concluded that the decisions of the BZA and Director May were arbitrary and capricious.

This case, as Appellants point out, is distinguishable from Flex Enterprises in the following three respects:

i. The Director's denial is based on the activities that Mr. Robinson actually proposes (regular live music performances) rather than a speculative fear of illegal or improper uses;
ii. Mr. Robinson's proposal includes uses not enumerated under the definition of a "social club"; and
iii. The use the Director identified is not allowed in the zoning district in which the Property is located.

Because an analysis of these three distinguishing factors is instructive in resolving the issue presented here, we separately address each factor.

Speculative fear of illegal or improper use

In Flex Enterprises , we held that the BZA could not base its denial of a permit on the legality or propriety of potential future activities at the proposed establishment. Thus, we found it was inappropriate to consider the suggestion, made by a member of the public, that the property would be used improperly as a "gay bathhouse." We reasoned that "[t]his appeal involves a zoning issue, not issues related to the legality or propriety of the activities to be conducted in the proposed establishment." Id. , 00-0815 at p. 10, 780 So.2d at 1151.

Here, in contrast, the Director denied the permit based on the use of the Property that Mr. Robinson actually proposed-regular live music performances. Indeed, the BZA application for Mr. Robinson's appeal states: "denial of permit ... to operate as a members only social club, which will serve meals and offer live entertainment during lunch and dinner service." In his email exchange dated May 15, 2017, Mr. Robinson stated that he was appealing Crescent City's "right as a [Section] 20.3.CCC to live entertainment." Moreover, at the BZA hearing, Mr. Robinson testified regarding the expanded live music performances he planned for weekends, stating that "Friday and Saturday nights were the nights we were considering having live entertainment that's outside of the traditional use of the club" and having "featured guests such as a Dr. John or someone larger" than the music performance area typically could accommodate. As Appellants point out, no one questions the general legality of live music entertainment in a venue in which it is permitted; however, in the HU-B1A zoning district in which the Property is located, live entertainment is not an enumerated permissible use.

Enumerated permissible uses

In Flex Enterprises , a citizen testified before the BZA (and presented an amicus brief in this court) that the proposed health club was actually a spa. This court observed that even if the club was in fact to be used as a spa, "a 'spa' is specifically classified as a 'health club' under the CZO definition, meaning that a 'spa' is a permitted use of property zoned CBD-7." Id. , 00-0815 at p. 10, 780 So.2d at 1151. Here, in contrast, the provision of live entertainment (music) is not an enumerated use within the definition of social club; and a live performance (entertainment) venue is not a permitted use in the HU-B1A zoning district. Appellants point out that Mr. Robinson seeks to provide "a steady stream of live music performances at the proposed establishment." Hence, the denial of the permit, as Appellants point out, was "based on a predominant use that is not enumerated by right."

Language of the CZO

In Flex Enterprises , Director May failed to apply the language of the CZO to the plaintiff's proposal to operate a health club. The CZO required that the space be a minimum of 4,000 square feet (the space in question was 11,000 square feet) and that it contain exercise equipment. The CZO specifically allowed services including spas and hot tubs. We reasoned that Director May's stated reasons for denying the permit-the percentage of space dedicated to exercise equipment and the large number of cubicles-addressed "issues entirely outside the definition of 'health club' in the CZO." Id. , 00-0815 at p. 9, 780 So.2d at 1151. We further reasoned that "the definition in the CZO does not exclude any types of spaces because they are inappropriate for 'health clubs.' " Id.

Here, in contrast, the Director's decision was based on an application of the definition of social club in the CZO, which excludes organizations "render[ing] a service which is customarily carried on as a business." Section 26.6 of the CZO. The Director examined Mr. Robinson's proposed venture and determined that it would provide regular live music performances-a service customarily carried on as a business. For this reason, the Director found that the proposed use is not a social club pursuant to the CZO. Upon categorizing the proposal as a live performance venue, the Director determined that it is not permitted in the zoning district and denied the application.

Recapping, contrary to Mr. Robinson's suggestion and unlike in Flex Enterprises , Appellants did not impose additional requirements or limitations not contained in the CZO when they denied the application for a permit to use the Property as a social club. The application was denied simply because Mr. Robinson's proposed use of the Property does not comply with the requirements for a social club in the CZO. Stated otherwise, his proposed use of the Property does not satisfy the definition of a social club because the exclusion for organizations "render[ing] a service which is customarily carried on as a business" applies.

The purpose of the exclusion is "to protect the traditional activities of private clubs, so long as they were confined to the use of members only and not made available to the public generally." City of Baltimore v. Poe , 224 Md. 428, 432, 168 A.2d 193, 195 (1961). Despite Mr. Robinson's deletion of the daily membership option, the Director testified before the BZA that, as proposed, the project will not be open exclusively to members. The Director emphasized that Mr. Robinson conceded additional family members and guests of members will be allowed to attend live music performances.

Regardless, contrary to Mr. Robinson's suggestion and consistent with the Director's position, any and all uses of a property are not permitted simply because such uses are conducted by a social club in a zoning district that permits social clubs; rather, the entire spectrum of zoning requirements applicable to the use of property must be considered. Voicing this view, the Director testified before the BZA as follows:

There are different elements that can fit into a single use, but we have to look at across the spectrum of what is allowable in that zoning district in making the determination. So it's not simply a matter of can a social club have live entertainment? It's a matter of can live entertainment be conducted in that zoning district?

Hosting regular live performances is not a permitted use in the HU-B1A zoning district in which the Property is located. Thus, the BZA's decision upholding the Director's decision was not arbitrary and capricious.

Mr. Robinson's suggestion that Appellants violated the equal protection clause by denying his permit application is unpersuasive. As Appellants point out, Mr. Robinson was not treated differently than other similarly situated organizations with the same zoning district or classification. See Beauclaire v. Greenhouse , 05-0765, p. 5 (La. 2/22/06), 922 So.2d 501, 505 (observing that "[t]he law merely requires equal application in similar circumstances"). At the hearing, the Director explained that if there are other social clubs in the City that are allowed to host live music performances, "it is because they are in different zoning districts that permit live performance venues or [have uses that were grandfathered in under an older zoning regime]." Mr. Robinson's equal protection argument is unpersuasive.

Lastly, Appellants assert that the trial court erred by not assessing the costs of this administrative appeal to Mr. Robinson under La. R.S. 33:4727(E)(5), which provides as follows:

The court may reverse or confirm, wholly or in part, or may modify the decision brought up for review. Costs shall not be allowed against the board unless it appears to the court that it acted with gross negligence, in bad faith, or with malice in making the decision appealed from. All issues in any proceedings under this Section shall have preference over all other civil actions and proceedings.

Because the statute focuses on the trial court's ability to impose costs on the Director, we find Appellees' request that we assess costs on Mr. Robinson based on the statute unpersuasive and decline to impose costs on him.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed.

REVERSED

      Mr. Robinson points out, in his brief, that the Property actually occupies three municipal addresses-1377 Annunciation Street, 1379 Annunciation Street, and 907 Terpischore Street. For this reason, he states he applied for three permits. The BZA and the trial court refer only to the application for 1377 Annunciation Street.

      As set forth in Section 12.1A of the CZO, the stated purpose of the HU-B1A zoning district is as follows:
      The HU-B1A Neighborhood Business District is intended to address an individual parcel or small cluster of parcels in non-residential use that exist within residential areas that have historically served the neighborhood and are located on a corner, including established corner stores. These historic neighborhood business uses are consistent with the character of the surrounding neighborhood and are intended to serve the immediate area with minimal impact on the surrounding residential uses.

      Section 20.3 CCC of the CZO imposes the following use standards for a social club or lodge:
      1. No more than fifty percent (50%) of the gross floor area may be used as office space for the social club or lodge.
      2. Social clubs and lodges are permitted to serve meals and alcoholic beverages on the premises for members only.
      3. Sleeping facilities are prohibited.
      4. Social clubs and lodges leased or used as reception halls shall comply with the requirements for reception halls of this Article.

      The Director also instructed Mr. Robinson that he could seek a text amendment to the CZO or a map amendment to rezone the Property to a district that allows live music performances, both of which would require review by the City Planning Commission and approval by the City Council.

      Mr. Robinson's attorney further pointed out that "other benefits would be offered to members, including music performances, performances by Mardi Gras Indians, workshops related to Mardi Gras Indian culture and costuming, music workshops, visual art displays and presentations, and the placement of a community garden at the site."

      On May 10, 2017, Mr. Robinson held a Neighborhood Participation Program ("NPP") meeting. In the notice scheduling the NPP meeting, he stated that "[t]he site is located in an HU-B1A Neighborhood Business District, where a Social Club or Lodge (20.3CCC) is a Permissible Use ...; however, as such the right to live-entertainment for our membership's enjoyment has been challenged which means we are required to apply for approval [to the BZA]." On June 5, 2017, Mr. Robinson's counsel, in a supplemental letter to the BZA, noted that the neighbors' concerns expressed at the NPP meeting included the use of the Property as an apparent live entertainment venue and the resulting noise.

      In their brief to this court, Appellants point out that "[b]etween filing his appeal [to the BZA] and the BZA hearing, Appellee [Mr. Robinson] agreed to a stipulation that no live entertainment will occur at the facility without a correlating Special Event permit, which allows live entertainment at discrete, specific events. The Director also issued a Special Event permit to allow certain performances at the location while the matter was being appealed." At the BZA hearing, Mr. Muster explained that Mr. Robinson would be eligible for a total of twelve Special Event permits per year and that each permit could be issued for up to three days. Theoretically, he could obtain thirty-six days of Special Event permits. At oral argument before this court, Appellants' counsel confirmed that Mr. Robinson was issued a permit to operate as a social club; however, in the event he wishes to have live music, he must apply for a Special Event permit.

      The Notice of Disposition states that "[t]he appeal shall be disallowed as the concurring vote for four (4) members of the Board was not attained. Thus, the appeal is denied."

      La. R.S. 33:4727(E)(1) provides as follows:
      Any person or persons jointly or severally aggrieved by any decision by the board of adjustment of any officer, department, board, or bureau of the municipality, may present to the district court of the parish or city in which the property affected is located a petition, duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.

      Article 26 of the CZO "contains definitions for generic uses allowed in the zoning districts and general terms used throughout the Ordinance." Section 26.1 of the CZO. Furthermore, the following rules regarding the generic use definitions are set forth in Section 26.3 of the CZO, which provides:
      A. Certain terms in this Article are defined to be inclusive of many uses in order to eliminate overly detailed lists of uses in the zoning districts established by this Ordinance. These terms are referred to as "generic uses."
      B. A use that is not specifically listed in a zoning district, does not fall within a generic use definition as defined in this Article, or is not interpreted as part of a generic use is prohibited.
      C. Any use specifically listed within any zoning district use table of this Ordinance or within the definitions cannot be considered part of a generic use definition.

      The enumerated use standards set for restaurants set forth in Article 26.6 of the CZO are as follows:
      1. During the performance of any musical accompaniment, all doors and windows in the restaurant shall remain closed. Any amplification used in support of a musical accompaniment shall be directed towards the patrons of the restaurant, and not toward any door, window or outdoor space.
      2. No cover charge shall be charged for any performance of any musical accompaniment.
      3. Full restaurant service shall continue during the performance of any musical accompaniment.
      4. No more than ten percent (10%) of a restaurant's seating area may be dedicated to a staging area for any performance of musical accompaniment.
      5. Aside from the portion of the restaurant seating area dedicated to the staging of the musical accompaniment, no restaurant seating may be removed or relocated during the performance in order to accommodate an audience and/or dance area.
      6. Performance of the musical accompaniment shall not be permitted beyond 10:00 p.m. on Sundays through Wednesdays, or beyond midnight on Thursdays through Saturdays.
      7. Musical accompaniment shall only be performed in the interior of a restaurant; outdoor musical accompaniment shall be subject to the general Live entertainment-secondary use regulations, as applicable.
      Any musical accompaniment for patrons at a restaurant that is not in conformance with the above standards shall be included within the definition of Live entertainment-secondary use above, and shall be subject to the applicable regulations. Notwithstanding anything herein to the contrary, any musical accompaniment for patrons at a restaurant within any Vieux Carré District shall be included within the definition of Live entertainment-secondary use.

      Section 12.2.A of CZO states:
      Only those uses of land listed under Table 12-1: Permitted and Conditional Uses as permitted uses or conditional uses are allowed within the Historic Urban Neighborhood Districts. A "P" indicates that a use is permitted within that zoning district. A "C" indicates that a use is a conditional use in that zoning district and would require a conditional use approval as required in Section 4.3 (Conditional Use). No letter (i.e., a blank space) or the absence of the use from the table indicates that use is not permitted within that zoning district.
      In Table 12-1, under the HU-B1A zoning district column, "Social club or lodge" has a "P"; "Live entertainment-secondary use" has no letter (i.e. a blank space); and "Live performance venue" is absent from the table. See Section 12.2.A (Table 12-1) of CZO. Thus, a social club is a permissible use; neither type of live entertainment use is permitted.

      A cultural facility is defined in Section 26.6 of the CZO as follows:
      A use that is open to the public and provides cultural services and facilities including, but not limited to, libraries, museums, aquariums, zoos, botanical gardens, and historical societies. A cultural facility may have ancillary retail uses, that offers items related to the facility for sale, and ancillary restaurants, which are only open during the hours of operation of the facility. A cultural facility may hold special events and receptions on-site, including events that take place after closing hours.

      A "Reception facility" is defined in Section 26. 6 of the CZO as follows:
      Reception facility . An establishment that functions as a hosting and rental facility or banquet hall for private events including, but not limited to, wedding receptions, holiday parties, and fundraisers, with food and beverages that are prepared and served on site or by a caterer to invited guests during intermittent dates and hours of operation. A reception facility is not operated as any kind of restaurant or bar with regular hours of operation. Live entertainment, excluding adult uses, may be included as an ancillary use of the private event and is not subject to a separate approval. Any business operating as a designated reception facility is not considered casual, temporary, or illegal due to the nature of the business operating intermittently for scheduled events with food and beverage service at the request of clients. Events scheduled by non-owners and/or operators shall be held a minimum of fifteen (15) times per year to uphold a legal operating status as a reception facility. (emphasis supplied).
      Reception facilities are subject to the following use requirement set forth in Section 20.3 WW of the CZO:
      1. A general admission fee or any other monetary donations (payment at the door to the general public) for entrance is prohibited, with the exception of fundraisers or events for bona fide non-profit organizations, places of worship or educational facilities.
      2. All events shall be held within a completely enclosed building. Live entertainment, if permitted as part of scheduled events, is subject to a closed doors and windows policy and compliance with the City of New Orleans Noise Ordinance. Music of any kind is prohibited outside the building, unless approved through the conditional use process.
      3. Outdoor lighting shall be directed away from adjacent residentially zoned property.
      4. Hours of operation are restricted to 10:00 a.m. and 12:00 midnight Sunday through Thursday. Hours of operation are restricted to 10:00 a.m. and 4:00 a.m. Friday through Saturday.
      5. A minimum distance of two-hundred (200) feet is required between any new reception facility and the nearest residential district.

      Likewise, in the notice of the NPP meeting, Mr. Robinson states that "the right to live-entertainment for our membership's enjoyment has been challenged which means we are required to apply for approval [to the BZA]." Mr. Robinson states in this brief to this court that, "[b]ased upon Dr. Munster's [May 15, 2017] email, [he] was led to believe that Dr. Munster's position regarding his permit had changed in light of the elimination of the daily membership fee. But at the BZA hearing on June 12, 2017, Dr. Munster maintained his position that the permit application should be denied."

      See also Carrere v. Orleans Club , 214 La. 303, 312-13, 37 So.2d 715, 719 (1948) (finding the exclusion inapplicable to an club "chiefly engaged in serving teas, luncheons, and dinners that are attended almost exclusively by members and their occasional guests").


author: Judge Terri F. Love

text:
    Terrie DOYLE v. SEWERAGE AND WATER BOARD
    NO. 2017-CA-0928
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 16, 2018
    Marc L. Frischhertz, Lloyd N. Frischhertz, Jr., FRISCHHERTZ POULLIARD FRISCHHERTZ & IMPASTATO, 1130 St. Charles Avenue, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    James E. Thompson, III, Jade Russell-Brown, Interim Special Counsel, SEWERAGE AND WATER BOARD OF NEW ORLEANS, 625 St. Joseph Street, Suite 201, New Orleans, LA 70165, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
   Judge Terri F. Love

This matter arises from termination of Terrie Doyle ("Ms. Doyle") from her employ with the Sewage and Water Board ("SWB"). Ms. Doyle seeks reversal of the Civil Service Commission's ("the Commission") ruling that denied her an award of back pay from the date of her termination.

In that Ms. Doyle's due process rights were not violated, the Commission did not err in denying Ms. Doyle back pay. Accordingly, we affirm the Commission's judgment.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Ms. Doyle was a classified employee with permanent status and worked as an Office Assistant Trainee for the SWB for the City of New Orleans. Ms. Doyle was suspended for five days for violating the SWB's attendance policy and was later terminated for a subsequent attendance policy violation. Between March and April 2016, the SWB issued to Ms. Doyle one verbal reprimand and seven written reprimands for violations of its attendance policy.

In a prior appeal, Doyle v. Sewage & Water Board , Doc. No. 8511 ("Doyle I ") involving the same parties, the Commission found that the SWB did not have sufficient cause to issue a written reprimand and three-day suspension related to a March 2016 absence. The Commission noted that Ms. Doyle had a "dismal record of punctuality and attendance, but that the incident... should have been classified as an excused absence" under the SWB's attendance policy. The Commission further held that the SWB could rely upon earlier reprimands in issuing future discipline.

In April 2016, the SWB subsequently issued to Ms. Doyle a five-day suspension for three additional written reprimands Ms. Doyle received following the three-day suspension vacated in Doyle I . Ms. Doyle did not contest the facts that resulted in her five-day suspension but alleged that the SWB attendance policy mandates a three-day suspension before the SWB may issue a five-day suspension. The SWB argued that it has the discretion to determine the appropriate level of discipline for violations of its attendance policy and that the penalty matrix serves as a guide.

In another incident, in May 2016, Ms. Doyle reported for work when at some time in the late morning she received a call from her daughter's school. The school informed her that her daughter had a temperature of 102 degrees. The school's policy required that her daughter remain away from school until she no longer had a fever or a physician released her to return to school. No one in Ms. Doyle's family was available to pick up her daughter. When Ms. Doyle received the call, both of Ms. Doyle's supervisors were meeting with new employees. Ms. Doyle did not enter the room where her supervisors were conducting the orientation, but she attempted to catch their attention through the window of the door. She was unsuccessful, so she decided to notify the office assistant, a higher ranking employee than Ms. Doyle. The office assistant agreed to let Ms. Doyle's supervisors know, and Ms. Doyle left work to pick up her daughter from school. Ms. Doyle left at 10:29 a.m., dropped her daughter off at her boyfriend's residence, and returned to work by 11:17 a.m. Ms. Doyle worked through her lunch break to make up the time she lost. Ms. Doyle received a written reprimand the following day because she "left work without informing [her] supervisor." Thereafter, Ms. Doyle received a letter from the SWB notifying her of her termination.

Ms. Doyle filed an appeal with the Commission, challenging her five-day suspension and termination. In August 2017, the Commission granted in part and denied in part Ms. Doyle's appeal. The Commission denied Ms. Doyle's appeal as to her five-day suspension. However, the Commission granted her appeal as to her termination and ordered Ms. Doyle reinstated but without back pay and emoluments. On appeal to this Court, Ms. Doyle seeks reversal of the Commission's denial of her request for back pay.

STANDARD OF REVIEW

This Court reviews findings of fact under the manifest error/clearly wrong standard of review. La. Const. art. X, § 12 (B); Thornabar v. Dep't of Police , 08-0464, p. 2-3 (La. App. 4 Cir. 10/15/08), 997 So.2d 75, 77. "In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the Civil Service Commission determination unless it is arbitrary, capricious, or characterized by an abuse of discretion." Id. (citing Cure v. Dep't of Police , 07-0166, p. 2 (La. App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094 ). A decision is arbitrary and capricious "if there is no rational basis for the action taken by the Civil Service Commission." Id. (citing Cure , 07-0166, p. 2, 964 So.2d at 1095 ).

Additionally, "review of procedural decisions and questions of law fall within the appellate court's traditional plenary function and is not limited to the abuse of discretion or arbitrary/capricious standards." Perkins v. Sewerage & Water Bd. , 95-1031 (La. App. 4 Cir. 2/29/96), 669 So.2d 726, 728.

DISCUSSION

On appeal, Ms. Doyle challenges the Commission's refusal to award her back pay after reinstating her employment. She claims she is entitled to back pay because her termination was illegal pursuant to La. R.S. 49:113, which states:

Employees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of illegal separation, against which amount shall be credited and set-off all wages and salaries earned by the employee in private employment in the period of separation.

Citing Perkins , Ms. Doyle contends that the written reprimands were issued in violation of the Commission Rules and her due process rights, requiring notice, and therefore, she is entitled to back pay.

The SWB alleges that Ms. Doyle attempts to create an issue of law where none exists by relying on her perceived rationale for her termination rather than the rationale the SWB actually relied upon. It avers that Ms. Doyle incorrectly claims that the rationale for her termination was the letters of reprimand. Rather, the SWB points to the Commission's decision which acknowledged the SWB's argument that Ms. Doyle's termination was based on her "entire work history." Further, the SWB maintains that there is no basis for Ms. Doyle's assertion that her due process rights were violated. It alleges that the evidence proves that Ms. Doyle received notice of her pre-termination hearing and was afforded a meaningful opportunity to respond.

La. R.S. 33:2424 states, in pertinent part, that in instances in which the Commission finds the disciplinary action to be unreasonable "the [C]ommission shall reinstate the employee under the conditions which it deems proper, and may order full pay for lost time." Id. (Emphasis added). However, "if the law was not followed in terminating an employee then his status as a civil servant was not affected and he remained entitled to payment for the period of illegal discharge." Perkins , 669 So.2d at 729 (citing Herman v. New Orleans Police Dep't , on reh'g , 238 La. 81, 113 So.2d 612, 617-18 (1959) ).

In this case, the Commission determined that based on Ms. Doyle's work record and the SWB's discipline policy, Ms. Doyle was on notice that her continued tardiness would result in substantial discipline; thus, there was ample justification to issue the five-day suspension. More importantly, the Commission determined that while the SWB argued that Ms. Doyle's termination was based on her "entire work history," the main motivation for terminating Ms. Doyle was the May 2016 incident. The Commission supported its finding by noting that, based on the SWB's discipline policy, the SWB could have moved for Ms. Doyle's termination after her third instance of tardiness for the month of April but elected not to do so. The Commission stated that generally "it is a prudent measure" for an employee to have a direct conversation with her supervisor before leaving work during a regularly scheduled shift. However, the Commission reasoned that given Ms. Doyle's "urgent need to act quickly [it did] not find it unreasonable for her to have asked a co-worker to inform her supervisors of the family emergency." Therefore, the Commission found the SWB did not have sufficient cause to terminate Ms. Doyle based on the May 2016 incident and reinstated Ms. Doyle's employment.

The Commission determined that the SWB lacked sufficient cause to terminate Ms. Doyle, but it did not find the SWB's termination of Ms. Doyle violated her constitutional right to due process. In Perkins , the SWB conceded that the employee's termination violated his due process rights in that he was only given oral notice of a meeting and was not informed that the purpose of the meeting was to discuss the charges made against him or given an opportunity to produce witnesses to support his version of the incident. Perkins , 669 So.2d at 727-28. Consequently, the Commission found his termination was illegal and he was entitled to back pay. Id. , 669 So.2d at 729. Ms. Doyle's termination, by contrast, complied in all respects with her procedural due process rights.

Ms. Doyle received notice of her pre-termination hearing and actively participated in the pre-termination process. The SWB issued a five-day suspension to Ms. Doyle, citing the three additional written reprimands it issued following the March three-day suspension. In concluding that there was sufficient cause to issue the five-day suspension, the Commission noted that Ms. Doyle did not contest the facts that led to the issuance of the five-day suspension. Similarly, despite having the opportunity to do so, Ms. Doyle did not contest the facts related to her three attendance reprimands at her pre-termination hearing. She only challenged the facts as it related to her final instance of absenteeism in May 2016. As the SWB points out, whether "a prior disciplinary action could have been overturned on due process grounds [has] no bearing on the facts that led to the disciplinary action in this case." We find that the SWB complied with the due process requirements during the termination proceedings. Because the SWB complied with the due process requirements and the law was followed, Ms. Doyle's reliance on Perkins is misplaced as her discharge was not illegal. Her discharge was without sufficient cause. Therefore, the Commission had the discretionary authority to deny Ms. Doyle back pay pursuant to La. R.S. 33:2424.

Moreover, the record is replete with evidence that Ms. Doyle "had a dismal record of punctuality and attendance." The Commission reasoned that while her actions in May 2016 do not amount to misconduct, Ms. Doyle has "benefitted" from the SWB's "lenient" attendance policy "by being late to her assignment on three separate occasions after being suspended for attendance violations and receiving numerous warnings regarding her unacceptable attendance pattern." Thus, the Commission held that Ms. Doyle's next substantiated violation of the SWB's attendance policy may serve as sufficient cause for termination. We find the Commission's factual findings indicate a rational basis for their decision to deny Ms. Doyle an award of back pay. Accordingly, we will not disturb the Commission's decision.

DECREE

We find Ms. Doyle's due process rights were not violated as she was provided notice of her pre-termination hearing and an opportunity to respond. Therefore, the present matter is distinguishable from Perkins . Further, we find the record establishes a rational basis for the Commission's decision to reinstate Ms. Doyle's employment, but deny her back pay. Therefore, we affirm the Commission's August 2017 judgment.

AFFIRMED