author: PERRET, Judge.

text:
    Tiwanna TAYLOR v. CITY OF ALEXANDRIA, et al.
    19-25
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Michael K. Cox Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPELLEE: Tiwanna Taylor
    Jerry L. Lavespere, Jr., Attorney at Law, 1805 Jackson Street, Alexandria, LA 71301, (318) 443-9926, COUNSEL FOR PLAINTIFF/APPELLEE: Tiwanna Taylor
    Ross A. Dooley, Ryan R. Brown, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, A.L.C., 8440 Jefferson Highway, Suite 301, Baton Rouge, LA 70809-7652, (225) 929-7033, COUNSEL FOR DEFENDANTS/APPELLANTS: City of Alexandria, Faron Johnson
    Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W. Perry, Judges.
   PERRET, Judge.

Plaintiff, Tiwanna Taylor, filed suit against defendants, Lieutenant Faron Johnson ("Lt. Johnson") and the City of Alexandria (collectively, "Defendants"), after her automobile was rear-ended by Lt. Johnson's vehicle. Following a one-day bench trial, the trial court found in favor of Ms. Taylor and awarded her $ 359,963.63 in damages. For the following reasons, we affirm the judgment of the trial court.

FACTS:

On March 10, 2016, Lt. Johnson was driving a 2009 Ford Crown Victoria police unit when he rear-ended Ms. Johnson's 2004 Honda Accord while approaching a red light on Bringhurst Street in Alexandria, Louisiana. According to Lt. Johnson, the accident occurred around 2:45 p.m., when he was on his way to the Alexandria Police Department to start his shift. When asked to describe how the accident occurred, Lt. Johnson testified as follows:

I was southbound on Mason Street in the right hand lane. Ms. Taylor was stopped at a traffic light in the right hand lane, red traffic signal. And I had spilled something on the front of me. I was already slowing down, but I looked down to brush it off, and when I looked up I - I struck her vehicle.

Lt. Johnson estimated that he was driving "two or three miles per hour" when he hit Ms. Taylor's vehicle and that his airbag did not deploy. He also testified that neither car had damage. However, on cross-examination, Lt. Johnson agreed "that the post-accident photographs reveal damage consistent with a rear - a low speed rear impact and specifically that it showed minor nicks ... and the rear bumper cover of Ms. Taylor's vehicle also demonstrated a horizontal crease with an adjacent paint chip" and that "there were also paint chips on the front of the bumper of [his] police unit[.]" Lt. Johnson further testified that at the time of the accident, he was wearing his police uniform, was in a marked police automobile, and was working, on a twenty-four hour on-call status, as a lieutenant for the City of Alexandria Police Department.

Ms. Taylor testified that on the day of the accident, she was on her way to work at the Naomi Heights Rehabilitation Center as a Certified Nurses' Assistant ("CNA"). When asked to describe her job, Ms. Taylor testified:

[A] CNA bathes - they have to bathe the patient, they have to dress the patient, they have to do direct care with the patient. That's brushing their teeth, washing their face, feeding them, dressing them, getting them in and out of bed, putting them in wheelchairs. It's a very physical job.

Ms. Taylor testified that prior to the accident, she neither had leg nor back pain that required regular medical treatment and that she did not have any difficulty performing her job duties. Although Ms. Taylor testified that she hurt herself in 2013 while working another job in Baton Rouge, she stated that she had no problems with her back or legs between that injury and the date of this accident and that she had no "problem doing any of the employment that [she] had in the years before the [subject] accident."

When asked to describe the March 10, 2016 accident, Ms. Taylor testified as follows:

I'm stopped, and I see a cop, and he didn't have on his lights or anything[,] so I wasn't required to get out of his way. So[,] I just glanced. I took a sip of soda, and before I knew it[,] I was going forward. You know, I went back but then I went forward with the soda. The soda didn't break[.]

Ms. Taylor testified that within a couple of hours after the accident, she "noticed that [her] legs and [her] back [were] hurting" and that she "asked a nurse for an Aspirin [.]" Although Ms. Taylor testified that she did not seek medical treatment until six days after the accident, she testified that during that six-day time period, she experienced excruciating pain in her legs and back.

On cross-examination, Ms. Taylor admitted to being in an accident on September 15, 2015, which was six months prior to the accident at issue. Specifically, Ms. Taylor admitted to rear-ending a vehicle and as a result, having property damage to her 2004 Honda Accord, the same car she was driving in the March 10, 2016 accident. Ms. Taylor also testified on cross-examination that she received an injection from Dr. Luna Walter, her primary care physician, on March 11, 2016, the day after the subject accident, for a medical condition not related to the accident of March 10, 2016.

Ms. Taylor also testified on cross-examination that she was involved in another automobile accident on January 13, 2017, but that she did not have any injuries despite her car being totaled. Ms. Taylor testified that her last month of working after the subject accident was in January 2017. At the conclusion of the cross-examination, Ms. Taylor testified that she does not expect to have any more medical procedures in the future and that her back surgery has relieved her pain down her legs, but that she still has back pain.

Dr. Gerald John Leglue, an expert in physiatry, rehabilitation, and medical acupuncture, also testified at trial. Dr. Leglue first treated Ms. Taylor on March 24, 2016, for complaints "of pain and paresthesias in both legs." When asked what kind of treatment he prescribed to Ms. Taylor on that day, Dr. Leglue responded that he placed her on steroids to reduce the swelling and inflammation and ordered "an MRI [magnetic resonance imaging ] of the low back." Dr. Leglue testified that Ms. Taylor's MRI was conducted on April 20, 2016, and that "she had an annular tear, the disc was cracked through" and "two protrusions." After reviewing the MRI report, Dr. Leglue "put her on a 20 pound lifting restriction" and suggested she consider "injections" or a "spine surgical evaluation."

When asked whether Dr. Leglue believed Ms. Taylor's back and leg pain were caused by the March 10, 2016 accident, he stated "[b]ased on her history, yes, sir." Dr. Leglue testified that he recommended Ms. Taylor see Dr. William Brennan in January 2017, after she had been having "peripheral symptoms for about nine months." When asked whether Ms. Taylor's problems were "consistent with a rear end motor vehicle accident," Dr. Leglue responded with "[c]ertainly it's consistent with trauma, and it can happen in that particular mechanism of injury, that['s] correct." Dr. Leglue further testified that all of the treatment he provided to Ms. Taylor was related to her motor vehicle accident on March 10, 2016.

On cross-examination, Dr. Leglue testified that he was not aware of Ms. Taylor's automobile accidents on September 15, 2015, and January 13, 2017. Dr. Leglue testified that Ms. Taylor underwent six sessions of regular traction in his office from September 13, 2016 to December 5, 2016, and that he released her to normal activities on January 9, 2017. Dr. Leglue testified that Ms. Taylor was released from his care on February 23, 2017. Dr. Leglue also testified that he treated Ms. Taylor with various pain medications from March 24, 2016 through December 2016.

Ms. Taylor's mother, Patricia Ann Landry, also testified at trial. When asked to describe Ms. Taylor's physical changes as a result of the subject accident, Ms. Landry stated: "Well, the things that she used to do, she's not really able to do them. She was very outgoing and active person, and she can't seem to do that now. It has changed a lot, sir." Ms. Landry testified that Ms. Taylor is still experiencing problems, and specifically testified: "Her [Ms. Taylor's] back hurts, she can't lift like she used to, you know. The things she used to do, she can - she just really cannot do them now."

Dr. Lloyd Robert Wade, III, an expert in biomechanics, testified, through deposition, on behalf of Ms. Taylor. Dr. Wade testified that "without seeing the physical inspection [of the two vehicles in the subject accident], the determination of speed would be an assumption based" and that "without accurate and reliable velocity data to determine occupant motion, the - - the characteristic of speed is purely an assumption." Thus, Dr. Wade found the testimony of Dr. Torrence Welch, Defendants' expert, that Lt. Johnson's Crown Victoria was traveling at less than four miles per hour at the time of impact "an unreliable finding" and that the Crown Victoria could have been going between ten and fifteen miles per hour. Dr. Wade testified that, in his opinion, an individual can experience a traumatic herniation of a lumbar intervertebral disc even during normal activities of daily living.

Dr. Melanie C. Firmin, a specialist in pain management, also testified through deposition. Dr. Firmin testified that on June 7, 2016, she began treating Ms. Taylor for "low back and leg pain that she [Ms. Taylor] temporally related to a motor vehicle accident that occurred on March 10, 2016." Dr. Firmin testified that the pain she was experiencing was due to the March 2016 accident since Ms. Taylor was asymptomatic prior to this incident. Dr. Firmin testified that she gave Ms. Taylor an epidural steroid injection (ESI) on June 16, 2016, to help with the back and leg pain. Dr. Firmin agreed that Ms. Taylor's complaints of pain were consistent with the April 20, 2016 MRI findings and that in her "professional medical opinion that the cause of the injury at L3-4 and L4-5 was a result of the MVA on 3/10/16[.]"

Dr. Brennan, an expert in the field of neurosurgery, also testified through deposition. Dr. Brennan testified that he first treated Ms. Taylor on July 8, 2017, for complaints of "low-back pain and numbness, tingling and pain down her right leg." Dr. Brennan's impression at that time was that Ms. Taylor suffered an "accident-induced lumbar disc herniation, L3-4, L4-5, with resultant right lower extremity lumbar radiculopathy." When asked whether Ms. Taylor's annular fissure was caused by the March 10, 2016 accident, Dr. Brennan testified that "it's more likely than not that that is one of the causes." On September 5, 2017, Dr. Brennan performed a hemilaminectomy and discectomy at L3-4 and L4-5. Dr. Brennan testified, in his opinion, the surgery he performed on Ms. Taylor was necessitated by the car accident on March 10, 2016.

Corporal Joshua Daigre, an employee with the Alexandria Police Department, testified at trial on behalf of the Defendants. Cpl. Daigre testified that he was called to the accident on March 10, 2016. Cpl. Daigre testified that upon his arrival at the accident scene, Ms. Taylor did not need any medical attention, he did not notice her holding her back or leg, and that he believed Ms. Taylor drove her own vehicle away after he completed the accident report. Cpl. Daigre testified that he considered this accident to "be a very minor crash." On cross-examination, Cpl. Daigre testified that Lt. Johnson was at fault for causing the accident.

Defendants also called Dr. Torrence Welch, an expert in biomechanical engineering and accident reconstruction, to testify at trial. When asked for his conclusions regarding the subject accident, Dr. Welch testified as follows:

Based on the calculations that I was able to perform, the police cruiser was traveling at less than four miles per hour at the moment that it contacted the back of Ms. Taylor's Accord vehicle. Because of that contact, it pushed her vehicle from its stop position up to a speed less than three miles per hour. So[,] in that instant of contact her vehicle accelerated from a stop to somewhere just less of three miles per hour. During that process what happened with her body is - she would have moved slightly backwards inside her vehicle and then returned to her original position. Now, what we know about accidents at that speed is that during that backward movement, because we're less than three miles per hour, there should be no closing of that gapless space between her head and the head restraint. It's a very small amount of motion that happens at that speed. As far as the injuries are concerned, I looked at injuries to her lumbar spine, which is where she sought treatment following the accident, and specifically looked at disc herniation injuries which were what were being addressed by her physicians. And the mechanism, the injury mechanism that's required for that particular injury wasn't present in this particular accident, meaning that those forces were inappropriate in location and direction to result in that particular type of - of injury. And so that's ... a broad overview of what - what my findings are.

Dr. Welch testified, in his opinion, the mechanism for a traumatic herniation of the lumbar vertebral disc was not present for Ms. Taylor in the March 2016 accident and that it is a fair statement to say that the accident "provided no impetus for the structural exacerbation, aggravation or progression of the preexisting degenerative condition present with her spine."

On cross-examination, Dr. Welch agreed that he "never made a physical examination of Ms. Taylor" and that he "didn't make a physical inspection of this Crown Victoria [Lt. Johnson's] vehicle[.]" Dr. Welch also testified that he based his "opinion of the damage to the vehicles on the photographic evidence" and that he "didn't physically inspect either of the two vehicles involved in this accident."

After hearing all the testimony, the trial judge found in favor of Ms. Taylor and against Lt. Johnson and the City of Alexandria. Specifically, the trial judge found that Lt. Johnson was 100% at fault in causing the March 10, 2016 accident and that he "was in the course and scope of his employment with [t]he City of Alexandria at the time of the accident[.]" The September 25, 2018 judgment found Lt. Johnson and the City of Alexandria jointly and solidarily liable to Ms. Taylor for $ 285,000.00 in general damages and $ 74,963.63 in special damages, for a total damage award of $ 359,963.63.

On appeal, Defendants allege the following three assignments of error: (1) the trial court erred in finding Ms. Taylor proved medical causation by a preponderance of the evidence; (2) the trial court's general damage award is grossly excessive; and (3) the trial court erred in holding the City of Alexandria and Lt. Johnson jointly and solidarily liable for the damages awarded to Ms. Taylor.

STANDARD OF REVIEW:

"The appellate jurisdiction of courts of appeal extend to both law and facts." Arias v. Stolthaven New Orleans, L.L.C. , 08-1111, p. 5 (La. 5/5/09), 9 So.3d 815, 818. In order for this court to reverse a trial judge's factual findings, manifest error must exist. Rosell v. ESCO , 549 So.2d 840 (La.1989). Under a manifest error standard of review, this court can only reverse if it finds, based on the entire record, that there is no reasonable factual basis for the factual finding and that the factfinder is clearly wrong. Stobart v. State , Dep't of Trans. and Dev. , 617 So.2d 880 (La.1993). As stated in Rosell, 549 So.2d at 844-45 (citations omitted):

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Thus, this court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. "The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses ... but also upon the proper allocation of trial and appellate functions between the respective courts." Canter v. Koehring Co. , 283 So.2d 716, 724 (La.1973).

DISCUSSION:

The first issue to address is whether the trial court manifestly erred in its finding that Ms. Taylor proved medical causation by a preponderance of the evidence. Defendants argue on appeal that "the evidence presented at trial overwhelmingly proved it is more probable than not that her [Ms. Taylor's] disc herniations and need for a lumbar procedure was not caused by the Subject Accident." In response, Ms. Taylor contends that the only medical testimony in this matter came from her treating physicians, all of whom testified that the accident on March 10, 2016, caused her back injury and leg pain. Thus, Ms. Taylor alleges that the medical causation is "crystal clear and undisputed by medical testimony."

In Maranto v. Goodyear Tire & Rubber Co. , 94-2603, 94-2615 (La. 2/20/95), 650 So.2d 757, the Louisiana Supreme Court set forth the burden of proof that must be met for a plaintiff in a personal injury case. The Supreme Court stated, in pertinent part:

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident.

Id. at 759 (citations omitted). As such, this court must look at the objective medical evidence presented by Ms. Taylor along with the testimony presented at trial, to determine whether the trial court committed manifest error in its finding that Ms. Taylor's injuries were caused by the subject accident.

The uncontroverted evidence in the record clearly shows that there is a causal connection between the March 2016 accident and Ms. Taylor's injuries, which necessitated the medical care she received from Dr. Leglue, Dr. Brennan, and Dr. Firmin. All three of Ms. Taylor's treating physicians testified that the March 10, 2016 accident caused her back injury, which required surgery by Dr. Brennan. Additionally, Ms. Taylor's MRI, which was conducted on April 20, 2016, showed that she had an annular tear with two protrusions. This medical evidence was uncontroverted, and we find nothing in the record to cast doubt upon it. Accordingly, we find no merit to this assignment of error.

The second issue to address is whether the trial court abused its great discretion in awarding Ms. Taylor $ 285,000.00 in general damages and $ 74,963.63 in special damages, for a total damage award of $ 359,963.63. Defendants argue that Ms. Taylor's September 6, 2017 lumbar procedure was more causally related to her intervening January 13, 2017 accident and that "[a]ny award for general and special damages should be reduced to damages in relation to the injuries and treatment sustained before January 9, 2017, when Plaintiff was released from her physicians' care and back to normal activities." Conversely, Ms. Taylor argues that "[b]ecause the trial court properly found that [her] injuries were caused by the accident [March 10, 2016], the trial court's damage award was appropriate." We agree.

The Louisiana Supreme Court, in Duncan v. Kansas City Southern R.R. Co. , 00-66, p. 13 (La. 10/30/00), 773 So.2d 670, 682 (citations omitted), defined general damages as "those which may not be fixed with pecuniary exactitude;" and "involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms." "Vast discretion is accorded the trier of fact in fixing general damage awards." Id. A trial court's findings on the amount of general damages is reviewed for abuse of discretion and "[i]t is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award."

Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1261 (La.1993), cert. denied , 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Only if the appellate court finds an abuse of discretion may it examine prior awards of general damages to determine the amount the trier of fact reasonably could award. Theriot v. Allstate Ins. Co. , 625 So.2d 1337 (La.1993).

After considering the evidence presented, we cannot say that the court's award of $ 285,000.00 in general damages was excessive, especially considering Dr. Brennan's testimony that despite the back surgery, Ms. Taylor's "leg pain did not completely go away" and that he "referred her to a pain management provider so that could continue" into the future. The medical evidence proved that Ms. Taylor suffered disc herniations at L3-4 and L4-5 in 2016, and that Dr. Brennan eventually performed a hemilaminectomy and discectomy at those levels in September 2017. As the Louisiana Supreme Court stated in Perniciaro v. Brinch , "[a] defendant takes his victim as he finds him and he is responsible for all the natural and probable consequences of his tortious conduct." 384 So.2d 392, 395 (La.1980). Thus, "[w]here the defendant's negligent action aggravates a pre-existing injury, he must compensate the victim for the full extent of this aggravation." Id. In this case, Ms. Taylor's medical bills totaled $ 74,963.63. Under these facts, we find no error in the trial court's special damage award of $ 74,963.63 and its general damage award of $ 285,000.00.

The third issue to address is whether the trial court legally erred in holding the City of Alexandria and Lt. Johnson jointly and solidarily liable for the damages awarded to Ms. Taylor. Defendants cite to Canter , 283 So.2d 716, for the proposition that Lt. Johnson should not be personally liable as an employee of the City of Alexandria because he was within his course and scope of employment at the time of the accident. In response to this argument, Ms. Taylor argues that the Canter case considered whether corporate officers could be held personally liable to third parties for their negligence and that Lt. Johnson is not a corporate officer and that he clearly had a personal duty toward other motorists to follow traffic laws. Thus, Ms. Taylor argues that Lt. Johnson breached a personal duty and caused her damages.

In Canter , the Louisiana Supreme Court recognized four exceptions where a shareholder or corporate director may be held personally liable for a corporation's negligence. The Louisiana Supreme Court specifically stated:

1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances-whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
4. With regard to the personal (as contrasted with the technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff's damages. If the defendant's general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or malperformance and has nevertheless failed to cure the risk of harm.

Id. at 721 (footnotes omitted). Thus, the Canter court held that an executive officer may be liable in tort where an officer owes a personal duty to a third party and breach of that duty results in injury. Accordingly, the exception requires that 1) the duty owed be personal to the plaintiff, and not of a general or administrative nature, 2) there be an act or omission which causes the breach, and 3) the breach proximately caused the plaintiff's injuries.

Louisiana Civil Code Article 1797 provides "An obligation may be solidary though it derives from a different source for each obligor." An employer and employee may be solidarily liable to the victim of a tort, though the obligation of the latter derives from the quasi-delict, La.Civ.Code art. 2315, and that of the former is imposed by law, La.Civ.Code art. 2320. See La.Civ.Code art. 1797, Revision Comments-1984, comment (b). "When a servant's actions during his employment create an unreasonable risk of harm to another, any resulting liability is solidary with that of his master." Foster v. Hampton , 381 So.2d 789, 790-91 (La.1980). Thus, as recognized in Sampay v. Morton Salt Co., 395 So.2d 326, 328 (1981), "The derivative nature of the employer's liability is of no concern to the victim, and he can compel either the employer or the employee to compensate him for the whole of his damages."

We find the Canter case distinguishable from the facts of this case because Lt. Johnson was not an officer or agent of a corporation at the time of the accident. Additionally, because it is undisputed that Lt. Johnson was in the course and scope of his employment with the City of Alexandria at the time of the accident, the City of Alexandria is vicariously liable for Lt. Johnson's torts under La.Civ.Code art. 2320. As stated in La.Civ.Code art. 2320, "Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." Accordingly, we find no merit in this assignment of error.

For these reasons, we hereby affirm the September 25, 2018 judgment that found in favor of Ms. Taylor and against the City of Alexandria and Lt. Johnson in the amount of $ 359,963.63. All costs of this appeal are assessed against the Defendants, the City of Alexandria and Lt. Johnson.

AFFIRMED.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Carl C. BROWN, Jr., et al. v. KABCO BUILDERS, INC., et al.
    18-928
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Fred A. Pharis, Pharis Law Offices, 831 DeSoto Street, Alexandria, LA 71301, (318) 445-8266, COUNSEL FOR PLAINTIFF-APPELLANT: Helen M. Brown, Jacqueline B. Hall, Estate of Carl B. Brown, Jr.
    Lamont P. Domingue, Voorhies & Labbé, P. O. Box 3527, Lafayette, LA 70502-3527, (337) 232-9700, COUNSEL FOR DEFENDANT-APPELLEE: Kabco Builders, Inc.
    Grant Herrin, Sidney W. Degan, III, R. Edward Blanchard, Brian W. Harrell, Degan, Blanchard & Nash, APLC, 5555 Hilton Avenue, Suite 620, Baton Rouge, LA 70808, (225) 610-1110, COUNSEL FOR DEFENDANT-APPELLEE: Bolton Mfd. Homes, Inc.
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   PICKETT, Judge.

Mobile home purchasers appeal the trial court's judgment vacating an arbitration award in their favor and granting the mobile home seller's and manufacturer's exceptions of peremption with regard to their one-year and two-year warranty claims. As discussed below, we reverse the trial court's judgment and confirm the award in favor of the purchasers.

FACTS

In April 2013, Carl Brown, Helen Brown, and Jackie Hall purchased a mobile home from Bolton Mfd. Homes, Inc. The mobile home was manufactured by Kabco Builders, Inc. and delivered and installed by Leesville Mobile Home Movers LLC. Pursuant to Louisiana law and the Browns' sale documents, their purchase of the mobile home is governed by the New Manufactured and Modular Home Warranty Act (NMMHWA), La.R.S. 51:912.1 -912.10. After the mobile home was delivered and installed, the Browns noticed numerous deficiencies with the construction of the home, including plumbing, flooring, roofing, and the joinder of the two sections of the home at the marriage line. The Browns attempted to address these deficiencies by presenting their complaints to the Louisiana Manufactured and Modular Housing Commission, as required by the NMMHWA. La.R.S. 51:912.5. Some, but not all, of the issues were resolved.

On June 26, 2015, the Browns filed suit against Bolton, Kabco, and Leesville. Bolton filed an answer generally denying the Browns' allegations and pleading affirmative defenses, including the fault of the plaintiffs and/or others and failure to state a cause of action under the NMMHWA. Kabco filed an exception of prematurity, asserting that the Browns had signed an arbitration agreement when they purchased their mobile home that required them to present their claims to an arbitrator, not a court. Leesville never responded to the suit.

The Browns denied having agreed to arbitrate their claims against Kabco, and Kabco's exception of prematurity was initially denied. Thereafter, the Browns were provided documentation evidencing their agreement to arbitrate their claims, and, in accordance with the agreement, the parties unsuccessfully attempted to mediate the Browns' complaints. The Browns then initiated arbitration by filing a Demand for Arbitration in which they named Bolton, Kabco, and Leesville as defendants. The arbitrator conducted a hearing over the course of two days in February and March 2018. On April 27, 2018, the arbitrator issued an award in favor of the Browns in which he denied Bolton's and Kabco's claims that the Browns' claims governed by one-year and two-year warranties were perempted and awarded the Browns actual and general damages, fees and expenses associated with the arbitration that they had previously paid, attorney fees, and legal interest to run from the date of the award. The arbitrator also assessed administrative fees and expenses and compensation and expenses of the arbitrator against the defendants.

The Browns filed a rule to show cause to confirm the arbitrator's award in the trial court. Bolton and Kabco each filed a motion to vacate the arbitrator's award, a peremptory exception of peremption, and a motion to consolidate the hearings on the motions to vacate the arbitrator's award. After conducting a hearing on the parties' filings, the trial court denied the Browns' rule to show cause to confirm the arbitrator's award and granted Bolton's and Kabco's motions to vacate the arbitrator's award. The trial court also granted Bolton's and Kabco's exceptions of peremption with regard to the Browns' one-year and two-year warranty claims provided in La.R.S. 51:912.4(A)(1)-(2) and dismissed those claims with prejudice. The trial court denied Bolton's and Kabco's exceptions of peremption in all other respects. On August 13, 2018, the trial court signed a judgment in conformity with these rulings. On August 16, 2018, the Browns filed a motion for devolutive appeal.

ASSIGNMENTS OF ERROR

The Browns assign the following errors with the trial court's judgment:

1. The trial court erred in denying plaintiffs' motion to confirm the award[.]
2. The trial court erred in vacating the arbitrator's award.
3. The trial court erred in acting as an appeal court, in effect, for the arbitration[ ] and substituting its own [judgment] on issues already consider[ed] and ruled on by the arbitrator.
4. The trial court erred in not signing a judgment in accordance with the arbitrator's award, modifying or correcting the award, or remanding the case to the arbitrator for a clarification.
5. The trial court erred in failing to award additional attorney[ ] fees for work done after the arbitration by undersigned counsel.

DISCUSSION

Partial Final Judgment

Bolton and Kabco urge that the Browns' appeal should be dismissed because the trial court's judgment granting in part and denying in part their exceptions of peremption is a partial final judgment that can only be appealed if the judgment has been designated a final judgment as provided in La.Code Civ.P. art. 1915(B). La.Code Civ.P. art. 1911(B). Pursuant to La.Code Civ.P. art. 1915(B)(1), a judgment that "sustains an exception in part, as to one or more but less than all of" a party's claims or demands "shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay."

The trial court's judgment does not include this required determination and designation, and Bolton and Kabco contend that the trial court's judgment does not "constitute a final judgment for the purpose of an immediate appeal[.]" La.Code Civ.P. art. 1915(B)(2). Therefore, they urge that this court does not have jurisdiction to consider the Browns' appeal and that it must be dismissed.

The Browns urge, however, that because they filed their notice of appeal within thirty days of the notice of judgment, this court has the discretionary authority to convert their appeal to an application for supervisory writs. See Cazelot v. Cazelot , 18-44 (La.App. 3 Cir. 6/27/18), 2018 WL 3159832 (unreported writ decision).

The judgment in this case was signed on August 13, 2018, and mailed to counsel on August 14. The Browns filed a motion for devolutive appeal on August 16, and the trial court signed the order granting the appeal on August 22. Notice of the appeal was issued August 22, well within thirty days of the notice of judgment being issued. This case has already been fully briefed and orally argued by the parties, and we find the motion and order for appeal in this matter to be a timely request for the setting of a return date for the filing of a writ application. Therefore, we grant the supervisory writ, as requested, and render an opinion.

Arbitration

Crescent Property Partners, LLC v. American Manufacturers Mutual Insurance Co. , 14-969, 14-973, pp. 6-7 (La. 1/28/15), 158 So.3d 798, 803-04 (citations omitted), outlined the purpose of arbitration and the legal concepts applicable thereto, explaining:

Arbitration is a mode of resolving differences through the investigation and determination by one or more individuals appointed for that purpose. The object of arbitration is the speedy disposition of differences through informal procedures without resort to court action. Because of the strong public policy favoring arbitration, arbitration awards are presumed to be valid. Judges are not entitled to substitute their judgment for that of the arbitrators chosen by the parties. It is well-settled in both state and federal courts that an award may be challenged only on the grounds specified in the applicable arbitration statutes, here La.Rev.Stats. 9:4210 and 9:4211. Those grounds do not include errors of law or fact, which we have reiterated are insufficient to invalidate an award fairly and honestly made. A court does not ordinarily sit in an appellate capacity over an arbitration panel, but instead must confine its determination to whether there exists one or more of the specific grounds for invalidation as provided by the applicable statute, here, La.Rev.Stat. 9:4210. The burden of proof rests upon the party attacking the award. As we explained in National Tea Co. [ v. Richmond , 548 So.2d 930, 932-33 (La.1989) ]:
Arbitration is a substitute for litigation. The purpose of arbitration is settlement of differences in a fast, inexpensive manner before a tribunal chosen by the parties. That purpose is thwarted when parties seek judicial review of an arbitration award.

The fourth circuit has also held that "[b]y consensually substituting arbitration for litigation, the parties are presumed to accept the risk of procedural and substantive mistakes of either fact or law by the arbitrators, which mistakes are not reviewable by the courts." Goodrich Petroleum Co., LLC v. MRC Energy Co. , 13-1435, p. 3 (La.App. 4 Cir. 4/16/14), 137 So.3d 200, 202-03, writ denied , 14-1199 (La. 9/19/14), 149 So.3d 249. Additionally, "any doubt as to whether a controversy is arbitrable should be resolved in favor of arbitration." J. Caldarera & Co. v. La. Stadium & Exposition Dist. , 98-294, p. 4 (La.App. 5 Cir. 12/16/98), 725 So.2d 549, 551.

There are four grounds for having an arbitration award vacated: (1) "the award was procured by corruption, fraud, or undue means"; (2) "there was evident partiality or corruption on the part of the arbitrators or any of them"; (3) "the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced"; or (4) "the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." La.R.S. 9:4210.

Bolton and Kabco argue that an additional jurisprudential ground, "manifest disregard of the law," exists for vacating an arbitrator's award. "Manifest disregard of the law" is an error by the arbitrator that is "obvious and capable of being readily and instantly perceived by an average person qualified to serve as an arbitrator." Crescent , 158 So.3d at 803, n.3. It "implies that the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore it or pay no attention to it." Id. Our supreme court has not adopted the rule, observing that the U.S. Supreme Court refused to apply the rule in Hall Street Associates, L.L.C. v. Mattel, Inc. , 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). In Hall , the Supreme Court held that the parties to an arbitration agreement could not expand the grounds for vacating an arbitration award beyond those provided in Sections 10 and 11 of the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 - 16, by including additional grounds to vacate an award in the agreement. For these reasons, we will not consider arguments pertaining to manifest disregard of the law.

The Merits

We note at the outset that the record before us includes only those documents submitted to the arbitrator that the parties have chosen to submit in support of their arguments. There is no transcript of the hearing conducted by the arbitrator. We further note that neither Bolton nor Kabco assert that they objected to any of the evidence submitted in the arbitration or to any of the arguments made by any party. Neither has shown that any evidence introduced at the hearings and considered by the arbitrator was introduced for a specified or limited purpose. Furthermore, they do not argue that they objected to the arbitrator considering any of the claims that the Browns asserted or the evidence supporting those claims. Lastly, neither Bolton nor Kabco have made arguments or identified evidence that shows the arbitrator conducted himself or the hearings in bad faith.

In their Demand for Arbitration, the Browns identified their claims as:

Suit against the manufacturer, Kabco Builders, Inc., the seller, Bolton Mfd. Homes, Inc., and the mover/installer, Leesville Mobile Home Movers, LLC, regarding a double-wide manufactured home installed in Ouachita Parish, Louisiana, under Louisiana's New Manufactured and Modular Home Warranty Act, L[a]. R.S. 51:912.1 - 51:912.10. Arbitration agreed to after unsuccessful mediation, based on documents signed by the consumers.
Specify the amount of money in dispute, if any: $ 150,000.00
State any other relief you are seeking: Attorney Fees Interest Arbitration Costs other: explain: general and personal injury damages

Their Demand for Arbitration references the suit they filed against Kabco and Bolton, seeking general and personal injury damages. Bolton and Kabco were served with copies of the Browns' suit and responded to the suit in the trial court. Additionally, the Browns attached a copy of their suit to their pre-hearing brief. In their pre-hearing and post-hearing briefs, they argued the NMMHWA was not their exclusive remedy and asserted that the arbitrator should consider their claims in light of awards made to claimants under the New Home Warranty Act, La.R.S. 9:3141 -3150, which is similar in some respects to the NMMHWA, as well as awards made to claimants for redhibition claims.

The arbitration agreement the Browns signed provides, in pertinent part:

Any and all disputes, controversies or claims of any kind or nature which arise from or relate to the subject manufactured home ... documents received, delivered or executed in connection therewith ... shall be governed by the Federal Arbitration Act ... shall first be mediated ... any unresolved claims shall be settled by binding arbitration administered by the [American Arbitration Association] in accordance with its Home Construction Arbitration Rules and Mediation Procedures ....

The agreement further provides: "The parties understand and agree that the arbitrator shall have all powers provided by law, and may award any legal or equitable relief, including, without limitation, money damages, declaratory relief and injunctive relief." This statement essentially restates Rule 43 of the Home Construction Arbitration Rules and Mediation Procedures entitled "Form and Scope of Award."

We consider the Browns' arguments that the trial court erred in vacating the arbitrator's award by examining the validity of Bolton's and Kabco's arguments that the trial court did not err in vacating the arbitrator's award. They first argue the arbitrator exceeded his authority in ruling on the issue of peremption. Neither Bolton nor Kabco filed an exception of peremption in the arbitration proceeding; however, both raised the issue of peremption in their pre-hearing and post-hearing briefs. Both argued at length that some of the Browns' warranty claims were subject to one-year and/or two-year peremptive periods, as provided in La.R.S. 51:912.4(1)-(2) and La.R.S. 51:912.6. They also outlined the applicable law and identified the specific claims asserted by the Browns that they believed were perempted.

Their arguments clearly presented a dispute that "arise[s] from or relate[s] to the subject manufactured home ... documents received, delivered or executed in connection therewith," i.e., the issue of peremption. The arbitrator did not exceed his authority in ruling on the issue.

Bolton and Kabco next argue the arbitrator deferred the issue of peremption to the trial court as opposed to deciding the issue himself. If that is the case, the trial court properly considered the issue of peremption. If not, the trial court erred in doing so. The arbitrator addressed the issue, stating:

It could be argued that this complaint is part of the statutory scheme which should interrupt pre-emption [sic] in addition to the actual filing of the suit. Not interpreting the complaint in this way leads to absurd and contradictory results contrary to public policy for resolving complaints. However, solving this conundrum shall be the purview of the Courts and the Legislature, not this [a]rbitrator.
This [a]rbitrator finds that the correspondence from "Kabco" of March 27, 2014, August 6, 2014[,] and February 3, 2015[,] to Daniel H. Wallis, Deputy Asst. Secretary of Louisiana Manufactured Housing Commission construed additional undertakings, warranties and guarantees to address the specified alleged shortcomings of the home for benefit of the Claimants. The next to last paragraph of the last letter cited (02-03-15) from the Service Manager of "Kabco"
reads as follows: "We understand this claim will remain open until all items are completed." Actions of employees and communications from both "Kabco" and "Bolton[,"] as the evidence clearly revealed, also constituted and bolstered these additional obligations undertaken by "Kabco" and "Bolton" to make the home "right" for the Claimants.

Considered in isolation, the arbitrator's initial comments possibly might be interpreted as an indication that he would defer the issue of peremption to the courts and/or legislature. His next statements show otherwise, however, because he proceeded to address the issue and determined that a letter written by Kabco to the Commission created new obligations in favor of the Browns.

Bolton and Kabco next argue the arbitrator exceeded his authority in basing its award in favor of the Browns on correspondence by Kabco to the Commission regarding the Browns' complaints reported in their February 2015 letter because no theory of liability was made known to them before or during the arbitration and no arguments were asserted with regard to the correspondence.

"Louisiana retains a system of fact pleading. La.Code Civ.P. art. 854, official revision comment (a)." Montalvo v. Sondes , 93-2813 (La. 5/23/94), 637 So.2d 127, 131. As a result, plaintiffs are not required to plead the theory of their case in their petitions. Ramey v. DeCaire , 03-1299 (La. 3/19/04), 869 So.2d 114. The arbitrator had the power to "award any legal or equitable relief, including, without limitation, money damages, declaratory relief and injunctive relief" and did not exceed his authority in basing his award on Kabco's letter to the Commission.

Bolton argues it was denied due process because the arbitrator held it liable for obligations undertaken by Kabco without its knowledge or consent. It contends that it was not a party to Kabco's letters and had no knowledge of the representations Kabco made in them. Kabco also argues it was denied due process because no arguments were made regarding its letters to the Commissioner being a basis of liability.

Arbitration proceedings are not held to the same strict rules as courts; regardless, an arbitrator must be vigilant in affording basic due process. Pennington v. Cuna Brokerage Sec., Inc. , 08-589 (La.App. 1 Cir. 10/1/08), 5 So.3d 172, writ denied , 08-2600 (La. 1/9/09), 998 So.2d 723. When reviewing an arbitration proceeding, an appellate court must determine whether a party to the proceeding has been "denied a fundamentally fair hearing." Id. at 176. "[A] fundamentally fair arbitration hearing requires, at a minimum, notice, opportunity to be heard and to present relevant and material evidence and oral argument before the decision makers." Id. at 177.

As noted above, the Browns argued in their briefs that their claims are analogous to redhibition claims wherein there is a presumption of solidary liability between manufacturers and sellers in redhibition actions. LeGros v. ARC Servs., Inc. , 03-918 (La.App. 3 Cir. 2/25/04), 867 So.2d 63. According to the arbitrator's award, the Browns also presented evidence showing personal injuries they suffered as a result of the deficiencies in the mobile home.

Bolton has not argued that it objected to any evidence introduced during the arbitration proceeding or that it was denied the opportunity to make any arguments it deemed appropriate in light of the other parties' arguments and the evidence presented. Moreover, it did not include copies of Kabco's letters with the other arbitration documents attached to its appellate brief. Therefore, Bolton has not established that it was denied a fundamentally fair hearing before the arbitrator.

Kabco also has not shown that the arbitrator denied any objections it made at the hearing or refused it the opportunity to present any arguments it chose with regard to the Browns' claims or its letters. Therefore, Kabco failed to show the arbitrator denied it a fair hearing.

Bolton and Kabco lastly argue the arbitrator's award violates the last ground for vacating arbitration awards, i.e., "[w]here the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." La.R.S. 9:4210(D).

We have not found any Louisiana case that addresses this issue in depth. Louisiana's arbitration law is virtually identical to the FAA, and determinations regarding the viability and scope of arbitration clauses are the same under either law. Aguillard v. Auction Mgmt. Corp. , 04-2804, 04-2857 (La. 6/29/05), 908 So.2d 1. Consequently, we may consider federal jurisprudence interpreting the FAA when considering Louisiana arbitration issues. Id.

In McVay v. Halliburton Energy Services, Inc. , 608 F.Appx 222, 225 (5th Cir. 2015), the court conducted a survey of cases summarizing the courts' conclusions regarding claims that an arbitrator imperfectly executed his powers such that a definite award was not made, stating:

In Antwine v. Prudential Bache Securities, Inc. , 899 F.2d 410, 413 (5th Cir.1990), the court found that the arbitrators had not imperfectly executed their powers under § 10(a)(4) because "[t]he award and statement provided by the arbitrators ... was clear and concise [and] lacked any hint of ambiguity," ....
.... The Second Circuit has described an arbitral award that is "final and definite" as one that "resolve[s] all the issues submitted to arbitration ... definitively enough so that the rights and obligations of the two parties, with respect to the issues submitted, do not stand in need of further adjudication." Rocket Jewelry Box, Inc. v. Noble Gift Packaging, Inc. , 157 F.3d 174, 176 (2d Cir.1998) (emphasis omitted). The Third Circuit has held that to be definite, an arbitration award must be "sufficiently specific as to be capable of implementation." See United Mine Workers of Am. Dist. No. 5 v. Consol. Coal Co. , 666 F.2d 806, 809-10 (3d Cir.1981). The Seventh Circuit has held that an arbitration award is definite if it "is sufficiently clear and specific to be enforced," IDS Life Ins. Co. v. Royal Alliance Assocs. , 266 F.3d 645, 650 (7th Cir.2001), and indefinite if it is "so badly drafted that the party against whom the award runs doesn't know how to comply with it," Smart v. Int'l Bhd. of Elec. Workers, Local 702 , 315 F.3d 721, 725 (7th Cir.2002) (citing IDS Life Ins. , 266 F.3d at 650 ).

Bolton and Kabco argue that the arbitrator's awards do not satisfy the requirements of La.R.S. 9:4210(D) because the awards against more than one defendant use the phrase "jointly and severally" to designate liability among them and Leesville. Louisiana courts have long held that joint and several liability is solidary liability. See Denoux v. Vessel Mgmt. Servs., Inc. , 07-2143 (La. 5/21/08), 983 So.2d 84, 92, which notes that the term "joint and several tortfeasors [is] the maritime analogue to our state's solidary obligors"; Wilkinson v. Parker , 18-431 (La.App. 5 Cir. 12/27/18), 263 So.3d 987, 992, where the court reiterated "that the common law term 'joint and several' is synonymous with the civil law term 'in solido'." Accordingly, the arbitrator's use of the phrase "jointly and severally" is held to be solidary liability. The arbitrator's award satisfies the requirements of the jurisprudence interpreting La.R.S. 9:4210(D).

Attorney Fees

The Browns seek an award of additional attorney fees for work performed in the trial court and before this court. They point out that the arbitrator awarded them actual and general damages and attorney fees by analogizing the NHWA and Prestridge v. Elliott , 03-94 (La. 6/4/03), 847 So.2d 789, to their claims. We decline to do so. The arbitrator's award of $ 25,000.00 represents a significant amount of time spent by their attorney presenting their claims. More importantly, neither the parties' arbitration agreement nor the NMMHWA provide for attorney fees.

DISPOSITION

For the reasons discussed above, Bolton Mfd. Homes, Inc. and Kabco Builders, Inc. failed to sustain their burden of proving the existence of any statutory ground for vacating the arbitrator's award. Accordingly, the trial court's judgment is reversed, and the arbitrator's award is reinstated. All costs of this appeal are assessed to Bolton Mfd. Homes, Inc., Kabco Builders, Inc., and Leesville Mobile Home Movers LLC, in solido.

REVERSED AND RENDERED.

      Ms. Hall is the Browns' daughter. Mr. Brown died after suit was filed, and Ms. Hall was authorized to litigate his claims.

      Louisiana Revised Statutes 51:912.5(A) states:
      Before undertaking any repair himself or instituting any action for breach of warranty, the owner shall give the commission written notice by filling out the consumer complaint form provided by the commission and submitting it by registered or certified mail within one year after knowledge of the defect, advising the commission of all defects. The commission shall then have the home inspected and a determination made on all defects listed by the owner. Thereafter, the commission shall give the appropriate builder a reasonable opportunity to comply with the provisions of this Part. Once the repairs are made, the commission shall have the home reinspected to determine if the repairs have been made in compliance with the building standards.

      The first circuit has also refused to recognize this jurisprudential rule. JK Devs., LLC v. Amtek of La., Inc. 07-1825 (La.App. 1 Cir. 3/26/08), 985 So.2d 199, writ denied , 08-889 (La. 6/20/08), 983 So.2d 1276. This court has discussed the rule but not applied it. See Detraz v. Banc One Sec. Corp. , 13-191 (La.App. 3 Cir. 10/9/13), 123 So.3d 875, writ denied , 13-2633 (La. 2/7/14), 131 So.3d 865 ; Mouret, v. Belmont Homes, Inc. , 12-55 (La.App. 3 Cir. 5/30/12), 91 So.3d 592 ; Young v. Peaslee Capital Grp., LLC , 08-1298 (La.App. 3 Cir. 4/1/09), 7 So.3d 1258, Louisiana Physician Corp. v. Larrison Family Health Ctr., L.L.C. , 03-1721 (La.App. 3 Cir. 4/7/04), 870 So.2d 575.

      Rule 43(a) provides: "a) The arbitrator may grant any legally available remedy or relief that the arbitrator deems just and equitable within the scope of the agreement of the parties, including but not limited to, equitable relief and specific performance of a contract."


author: MENDHEIM, Justice.

text:
    EX PARTE UTILITIES BOARD OF the CITY OF TUSKEGEE
    (In re: Jerry Tarver, Sr. v. Advanced Disposal Services South, LLC, et al.)
    1170234
    Supreme Court of Alabama.
    September 28, 2018
    Milton C. Davis, Tuskegee; and De Martenson, Jennifer H.R. Egbe, and Stewart W. McCloud of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioner.
    Ted L. Mann and Courtney Hutchinson Ealy of Mann & Potter, P.C., Birmingham; and Jeffrey E. Friedman and Jeffrey E. Friedman, Jr., of Friedman, Dazzio, Zulanas & Bowling, P.C., Birmingham, for respondent.
   MENDHEIM, Justice.

The Utilities Board of the City of Tuskegee ("UBT") petitions this Court for a writ of mandamus directing the Macon Circuit Court to vacate its December 7, 2017, order disqualifying UBT's retained counsel, Huie, Fernambucq & Stewart, LLP ("the Huie firm"), from representing UBT in a case pending before the trial court. We grant the petition and issue the writ.

I. Facts

On May 19, 2017, Jerry Tarver, Sr., sued UBT and numerous other defendants seeking damages based on alleged exposure to contaminated water purportedly caused by the defendants' combined and concurring negligence. More specifically, Tarver alleged that,

"[a]s a result of the negligent, unauthorized, unpermitted, and illegal discharging of waste products and hazardous chemicals and compounds into the Tallapoosa River, the water treatment facilities in Tuskegee and Macon County have been providing polluted water to [Tarver] for drinking, cooking, bathing, and [his] everyday use. Instead of properly treating the water from the Tallapoosa River, the water treatment facilities made the condition of the water worse."

One of the defendants, Advanced Disposal Services, Inc., is the corporate head of several of the other defendants, including the Tallassee Waste Disposal Center, Inc., which owns Stone's Throw Landfill in Tallassee. Tarver alleges that "Stone's Throw Landfill is a major source of pollutants discharged into the Tallapoosa River."

In June 2017, UBT retained the Huie firm and one of its attorneys, De Martenson, to represent UBT in Tarver's action and in several similar actions filed by other plaintiffs who had retained Tarver's counsel. On June 26, 2017, UBT filed its answer to Tarver's complaint, denying all material allegations and asserting certain affirmative defenses. Martenson and other attorneys in the Huie firm -- Jennifer Egbe, Jeremy Gaddy, and H. Lanier Brown II -- filed appearances for UBT as part of that answer.

In August 2017, Tarver's counsel sent Brown an e-mail asserting that Brown's service on the Alabama Environmental Management Commission ("the AEMC") created a conflict of interest regarding Brown's representation of UBT in Tarver's action. Brown has served on the AEMC since 2008, and he has served as its chairman since October 2013. On August 17, 2017, Brown filed a "Motion to Withdraw" as counsel from the action. In the motion, Brown stated that he "ha[d] performed no work on this case." On August 21, 2017, the trial court granted Brown's motion to withdraw.

On September 6, 2017, Brown resigned from the Huie firm and joined another law firm. Despite that fact, in a September 21, 2017, e-mail from Tarver's counsel to Martenson, Tarver asserted that the Huie firm should withdraw from the action because of the alleged conflict of interest created by Brown's participation in the firm's representation of UBT.

On October 5, 2017, UBT filed a "Motion to Determine Issue of Claimed Disqualification" in which it sought a determination as to whether the Huie firm had to withdraw from representing UBT in the action. Along with that motion, UBT submitted an affidavit from Brown in which he stated that his

"participation in the case was minimal at best. My involvement was limited to: (1) online research to determine the name of the attorney representing co-defendant Advanced Disposal (0.50 on June 26, 2017); (2) review of email received from Alafile with orders granting various pro hac vice motions (0.20 on July 17, 2017); and (3) review of email received from Alafile with multiple pleadings and statements filed in response to pro hac vice motions filed by various co-defendants (0.30 on July 26, 2017). I never performed any substantive work on this case."

Brown further averred that the Huie firm "never had any involvement in my service on the [AEMC], nor has [the Huie firm] ever represented either [the Alabama Department of Environmental Management] or the [AEMC]." He added that he had "no recollection of ever participating in, or presiding over, any administrative hearing that involved the Stone's Throw Landfill in Tallassee and/or complaints regarding the City of Tallassee's Waste Disposal Center."

On October 30, 2017, Tarver filed a "Motion to Disqualify" the Huie firm from representing UBT in his action. Tarver based his motion on Rule 1.11(a), Ala. R. Prof. Cond., which places restrictions on when a current or former government attorney may represent a private client. In the motion, Tarver asserted that "[t]he environmental issues in the present case have been argued and contested before Chairman Brown and the AEMC prior to and following the filing of this case."

In support of his motion to disqualify the Huie firm, Tarver submitted a transcript of a public meeting of the AEMC held on October 21, 2016, over which Brown had presided as chairman. Among the citizens to comment in that public meeting were Adam Johnston, who spoke on behalf of "Black Belt Citizens Fighting for Health and Justice," and Ron Smith, who stated that he represented the "Ashurst Bar/Smith Community." In the midst of expressing several concerns about various permits issued by the director of the Alabama Department of Environmental Management ("ADEM"), Johnston stated: "We also feel that the direct permitting of the Stones Throw Landfill in Tallassee has also violated rights of individuals' concerns [sic] and that if the Director would've never permitted that entity, then we wouldn't have these civil rights concerns." Smith complained about the odors permeating from the Stone's Throw Landfill to his house and the surrounding community as well as an alleged reduction in the fish population in the waters near the landfill. Smith further asserted that the AEMC was "taking the path of least resistence" in holding public meetings without taking action.

On November 17, 2017, the trial court heard the parties' arguments on the disqualification issue. On December 7, 2017, the trial court entered an order in which it concluded that "the Huie firm is due to be, and is hereby disqualified from further participation in this case, and all related cases, based upon the Alabama Rules of Professional Conduct, the Code of Alabama and controlling case law." In support of this conclusion, the trial court specifically cited Rule 1.11(a), Ala. R. Prof. Cond., and the minutes of the October 21, 2016, public meeting of the AEMC, which, according to the trial court, recorded comments from "a resident of the Ashurst Bar/Smith community in Macon County" who "addressed the AEMC concerning the community's ongoing problems with the 'Tallassee Waste Disposal Center' and presented a litany of complaints concerning alleged pollution coming from the landfill." The trial court also noted that Tarver had filed as an exhibit "a lawsuit filed and presently pending, on behalf of ADEM against the City of Tallassee, Alabama, for operation of its waste treatment facility which accepts waste from the Tallassee Waste Disposal center which is then treated and discharged into the Tallapoosa River." The trial court further observed:

"In ruling on the disqualification issue, the Court has taken into consideration the fact that the conflict of interest/disqualification issue was raised with the Huie firm very early in this proceeding and that virtually no discovery has been undertaken in the case. The Court notes that Mr. Brown, upon being advised of a potential conflict filed a Motion to Withdraw from this case, and all related cases, almost immediately. The Court finds there is a substantial overlapping of legal and factual issues in this litigation and related issues before ADEM and the AEMC which create a conflict as recognized by H. Lanier Brown which led him to withdraw. The Court also finds that Mr. Brown's conflict directly impacts the Huie firm, notwithstanding his recent departure from the Huie firm.
"The Court also notes that the [UBT] is represented by the Honorable Milton Davis and [Tarver] has stipulated that any disqualification motion does not extend to Mr. Davis nor his firm such that the Board will continue to be represented by counsel if the Huie firm is required to withdraw by disqualification."

Subsequently, UBT filed this petition for a writ of mandamus.

II. Standard of Review

"It is well settled that '[a] petition for a writ of mandamus is the appropriate vehicle by which to review an order disqualifying an attorney from representing a party.' Ex parte Tiffin, 879 So.2d 1160, 1164 (Ala. 2003). See also Ex parte Intergraph Corp., 670 So.2d 858, 860 (Ala. 1995) ; Ex parte Central States Health & Life Co. of Omaha, 594 So.2d 80 (Ala. 1992). 'A writ of mandamus will issue where the petitioner has demonstrated "a clear legal right to the relief sought." ' Ex parte Dowdell, 677 So.2d 1158, 1159 (Ala. 1996) (quoting Ex parte Clark, 643 So.2d 977, 978 (Ala. 1994) )."

Ex parte Regions Bank, 914 So.2d 843, 847 (Ala. 2005). In other words, "[t]he question before us ... is whether [UBT] has a 'clear legal right' to [be] represent[ed by the Huie firm] in this litigation." Ex parte Wheeler, 978 So.2d 1, 5 (Ala. 2007).

III. Analysis

We begin by observing that " '[a] trial court has the authority and the discretion to disqualify counsel for violating the Rules of Professional Conduct, and a "common sense" approach should be used.' " Ex parte Wheeler, 978 So.2d at 7 (quoting Ex parte Lammon, 688 So.2d 836, 838 (Ala. Civ. App. 1996) ). See also Roberts v. Hutchins, 572 So.2d 1231, 1233, 1234 (Ala. 1990) (noting that, "[i]n Ex parte America's First Credit Union, [519 So.2d 1325 (Ala. 1988) ], this Court adopted the 'common sense' approach to questions concerning the vicarious disqualification of lawyers" and that this " 'common sense' approach ... has been carried forward into the new Alabama Rules of Professional Conduct").

As we noted in the rendition of the facts, the trial court's finding that the Huie firm must be disqualified from representing UBT was ultimately based upon Rule 1.11(a), Ala. R. Prof. Cond. In pertinent part, Rule 1.11 provides:

"(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
"(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
"(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
"....
"(d) As used in this rule, the term 'matter' includes:
"(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties;
"(2) Any other matter covered by the conflict of interest rules of the appropriate government agency.
"...."

The idea of imputed disqualification of the law firm that employs a disqualified attorney stems from " ' "a doctrine of imputed knowledge" which posits that the knowledge of one attorney in a law firm is the knowledge of all attorneys in the firm.' " Matthew Lenhardt, Ethical Screens in the Modern Age, 50 Santa Clara L. Rev. 1345, 1350 (2010) (quoting In re Charlisse C., 45 Cal. 4th 145, 161, 84 Cal.Rptr.3d 597, 194 P.3d 330, 339 (2008), quoting in turn Adams v. Aerojet-Gen. Corp., 86 Cal. App. 4th 1324, 1333, 104 Cal.Rptr.2d 116, 122 (2001) ). Therefore, the propriety of Brown's disqualification must be established before his disqualification can be imputed to the Huie firm. UBT makes several arguments contending that Brown was not disqualified from representing UBT under Rule 1.11(a).

The core of UBT's arguments is the language of Rule 1.11 -- a rule that has received scant attention in our cases. Specifically, UBT contends that Tarver never demonstrated that, as a member of the AEMC, Brown "participated personally and substantially" in a "matter" connected with his representation of UBT in this action. Rule 1.11(a), Ala. R. Prof. Cond. UBT notes that Tarver's only specific support for his argument that Brown, as a member and then chairman of the AEMC, was in any way involved in a matter that touched upon the issues in this action was the minutes of the October 21, 2016, public meeting of the AEMC. However, an examination of the content of that public meeting shows that the citizen complaints Brown heard as chairman of that meeting were, at best, remotely related to this action.

Johnston complained about the fact that ADEM had granted a permit for the Stone's Throw Landfill in the first place. No evidence was presented indicating that the AEMC, or Brown in particular, had anything to do with ADEM's initial consideration or approval of the permit for that landfill. Moreover, as UBT observes, Brown and the rest of the AEMC had no power to do anything related to the landfill's permit at the October 21, 2016, public meeting. The AEMC has authority only to correct an "administrative action" of ADEM -- such as the approval of a permit -- through the administrative-hearing procedure initiated by "any person aggrieved by an administrative action of the department." § 22-22A-7(c), Ala. Code 1975. No evidence was presented indicating that Brown had ever participated in such a hearing concerning the permits approved for the Stone's Throw Landfill. Indeed, Brown testified by affidavit that he had "no recollection of ever participating in, or presiding over, any administrative hearing that involved the Stone's Throw Landfill in Tallassee and/or complaints regarding the City of Tallassee's Waste Disposal Center."

Smith's complaints at the public meeting on October 21, 2016, were even more generic. He complained about the odors that emanated from the Stone's Throw Landfill and intimated that the waters around his community near the landfill were polluted. Again, AEMC was not empowered to do anything about those complaints at the public meeting.

Even if we assumed that the October 21, 2016, public meeting was a "matter" in the sense that it fell within the ambit of the types of actions or items listed in Rule 1.11(d)(1), the citizen complaints highlighted by Tarver did not "involv[e the] specific party" Brown represented -- UBT. In other words, none of the complaints concerned the quality of the drinking water provided to citizens by UBT, which is the basis of Tarver's claims against UBT.

Tarver attempts to skirt this problem by contending that, under Rule 1.11(d)(2), "any action Chairman Brown took on behalf of the AEMC is a 'matter' for the purpose of Ala. R. Prof. Cond. 1.11(a)" because "[i]t is undisputed Brown represented the AEMC in his capacity as an attorney, and that the Ala[bama] R[ules] [of] Prof[essional] Cond[uct] apply to his representation of the AEMC." Tarver's brief, pp. 19-20. But Rule 1.11(d)(2) does not mean that because Brown sat on the AEMC by virtue of his status as an attorney, every action he took as a commissioner constituted a "matter" under Rule 1.11(a) that disqualified him from representing certain clients. Rule 1.11(d)(2) refers to "the conflict of interest rules of the appropriate government agency," meaning that a "matter" as described in conflict-of-interest rules of ADEM or the AEMC would also apply for purposes of Rule 1.11(a). (Emphasis added.) Neither Tarver nor the trial court cited any conflict-of-interest rules of ADEM or the AEMC that Brown allegedly violated by representing UBT.

Even if we ignored the foregoing problems and assumed that the October 21, 2016, public meeting of the AEMC constituted a "matter" for purposes of Rule 1.11(d), that meeting constituted Tarver's only evidence of Brown's connection to a "matter." Under any ordinary definition, that one meeting could not be categorized as "personal[ ] and substantial[ ]" "participat[ion]" in a matter by Brown. At best, Johnston's and Smith's complaints consisted of a few minutes of a one-hour-long meeting of the AEMC. According to § 22-22A-6(f), Ala. Code 1975, the AEMC must "meet regularly, at least once every two months," and "[s]pecial meetings may be called at the discretion of the chairman of the Environmental Management Commission." Brown has been an AEMC commissioner since 2008, yet Tarver was unable to present any other evidence of Brown's participation in a matter connected with this action or even with UBT.

Throughout his brief, Tarver conflates the AEMC and ADEM in a futile effort to paper over the lack of evidence of any substantial involvement by Brown in his capacity as an AEMC commissioner in matters connected with this action. See, e.g., Tarver's brief, pp. 8, 19 ("AEMC, as both developer of environmental regulations and final arbiter of application and enforcement, is so intertwined with ADEM the two cannot be separated."; "Chairman Brown represents the AEMC, and by extension, ADEM."). It is apparent from the statutory framework that created the AEMC, see §§ 22-22A-6 through 22-22A-7, Ala. Code 1975, that the AEMC is a body separate from ADEM that supervises ADEM in certain ways. See, e.g., Alfred F. Smith, Jr., and Ronald W. Farley, Negotiating and Litigating with the Alabama Department of Environmental Management, 61 Ala. Law. 322, 326 (2000) ("ADEM and the [A]EMC are two distinct entities. The [A]EMC is the governing oversight body for ADEM."). Actions taken by ADEM through its director cannot automatically be ascribed to the AEMC, which is most readily apparent from the fact that parties aggrieved by "administrative actions" taken by ADEM can challenge those actions before the AEMC. See § 22-22A-7, Ala. Code 1975. Despite this plain distinction, Tarver repeatedly makes generalized accusations against Brown in relation to ADEM for which he provides no supporting authority. See, e.g., Tarver's brief, pp. 16, 17, 18 ("Chairman Brown's participation in matters connected to this case is wide-ranging, personal, and substantial, and goes far beyond a single public hearing, and beyond his work at the Huie firm"; "[t]he vast public record demonstrates Chairman Brown personally and substantially participates in policy decisions that impact the level of protection [Tarver] and others near the Landfill receive from ADEM"; "[n]ot only has Chairman Brown directly listened to complaints regarding the Landfill, he participates in policy decisions that dictate the extent to which [Tarver] and others suffer impacts of the Landfill, and the level of protection afforded residents by ADEM"). If the public record actually supported these accusations, then it was incumbent upon Tarver to present such evidence to demonstrate Brown's disqualification under Rule 1.11(a). Yet, the transcript of the October 21, 2016, public meeting of the AEMC was Tarver's only submission of supporting evidence. As we have already stated, that evidence was insufficient to establish that Brown, as a commissioner of the AEMC, personally and substantially participated in a matter connected with this action.

Tarver also asserts that Brown, and by extension the Huie firm, must be disqualified because "[l]awyers must avoid even the appearance of impropriety." Tarver's brief, p. 13. However, an "appearance-of-impropriety" test in assessing whether an attorney should be disqualified under the Alabama Rules of Professional Conduct simply is not the law of our state. See UBT's reply brief, pp. 10-11.

"Both the ABA's Model Rules of Professional Conduct and Alabama's Rules of Professional Conduct, however, have since deleted their provisions concerning the appearance of impropriety in favor of the more precise rules governing client confidences, conflicts of interest and other matters. Thus, disqualification of counsel in this district can no longer be grounded on an appearance of impropriety."

Wade v. Nationwide Mut. Fire Ins. Co., 225 F.Supp.2d 1323, 1331 (S.D. Ala. 2002). Indeed, the commentary to Rule 1.10, Ala. R. Prof. Cond., which concerns imputed disqualification when attorneys move from one law firm to another, specifically notes that there are at least two problems with the

"rubric formerly used for dealing with vicarious disqualification[, i.e.,] the appearance of impropriety proscribed in Canon 9 of the ABA former Code of Professional Responsibility. First, the appearance of impropriety can be taken to include any new client-lawyer relationship that might make a former client feel anxious. If that meaning were adopted, disqualification would become little more than a question of subjective judgment by the former client. Second, since 'impropriety' is undefined, the term 'appearance of impropriety' is question-begging. It therefore has to be recognized that the problem of imputed disqualification cannot be properly resolved either by simple analogy to a lawyer practicing alone or by the very general concept of appearance of impropriety."

Comments to Rule 1.10 (as amended effective June 23, 2008), Ala. R. Prof. Cond. Because of these problems, the commentary counsels that "[a] rule based on a functional analysis is more appropriate for determining the question of vicarious disqualification." Id. This Court has expressed similar caution with regard to the disqualification of attorneys:

" ' "Disqualification of counsel, like other reaches for perfection, is tempered by a need to balance a variety of competing considerations and complex concepts. Disqualification in spasm reaction to every situation capable of appearing improper to the jaundiced cynic is as goal-defeating as failure to disqualify in blind disregard of flagrant conflicts of interest. Between these ethical extremes lie less obvious influences on the interest of society in the orderly administration of justice, on the interest of clients in candid consultation and choice of counsel, and on the interest of the legal profession in its representational soul." ' "

Ex parte Wheeler, 978 So.2d at 11 (quoting Ex parte Taylor Coal Co., 401 So.2d 1, 7 (Ala. 1981), quoting in turn Arkansas v. Dean Foods Prods. Co., 605 F.2d 380, 383 (8th Cir. 1979) ).

These thoughts, as well as the fact -- as we observed at the outset of this analysis -- that courts should take a "common-sense approach" to disqualification, are worth bearing in mind when assessing the trial court's imputation of disqualification to the Huie firm. The following are the facts actually presented to the trial court concerning Brown's involvement in this action: (1) Brown served as counsel for UBT for only 52 days; (2) it is undisputed that Brown performed no substantive work in UBT's defense during that short period; (3) Brown resigned from the Huie firm 2 weeks after he withdrew as counsel in this action, leaving the firm a month before the Huie firm filed its motion to determine the disqualification issue and almost 2 months before Tarver filed his motion to disqualify the Huie firm from representing UBT; and (4) Brown testified by affidavit, without substantive contradiction, that the Huie firm "never had any involvement in my service on the [AEMC], nor has [the Huie firm] ever represented either ADEM or the [AEMC]." A common-sense assessment of these facts dictates that, even if Tarver had presented some evidence to support the elements of Rule 1.11(a), Ala. R. Prof. Cond., which he did not, Brown's disqualification should not have been imputed to the Huie firm.

In sum, Tarver did not present evidence indicating that Brown, in his capacity as a commissioner of the AEMC, "personally and substantially" participated in a "matter" connected with his brief representation of UBT in this action. Rule 1.11(a), Ala. R. Prof. Cond. Therefore, Brown was not disqualified under the requirements of Rule 1.11(a), and no disqualification could be imputed to the Huie firm. Furthermore, even if Brown's disqualification could be justified, his minimal participation in defending UBT and his resignation from the Huie firm militate against imputing any potential disqualification of Brown to the Huie firm.

IV. Conclusion

For the foregoing reasons, we conclude that the trial court clearly erred by disqualifying the Huie firm from representing UBT. Therefore, we grant the petition for a writ of mandamus and direct the trial court to withdraw its December 7, 2017, order disqualifying the Huie firm from representing UBT in this action.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Shaw, Main, Wise, Bryan, and Sellers, JJ., concur.

      "The party moving for an attorney's disqualification ... bears the burden of proving the existence of a conflict of interest." Ex parte Tiffin, 879 So.2d 1160, 1164 (Ala. 2003). See also In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003) ("The party moving to disqualify counsel bears the burden of proving the grounds for disqualification.").

      The facts Tarver provides in his brief state, without any citation to authority, that ADEM approved the original permit for the Stone's Throw Landfill in 2001 and that ADEM approved a permit modification to expand the landfill in 2003. See Tarver's brief, pp. 8-9. Even if we assume such facts are accurate, ADEM's permit approvals occurred well before Brown joined the AEMC in 2008.

      Section 22-22A-6(b)(3) requires one member of the AEMC to be "an attorney licensed to practice law in the State of Alabama."

      Precisely because AEMC and ADEM are separate bodies, the trial court's reference to an action filed by ADEM against the City of Tallassee alleging that the city's wastewater-treatment facility discharges pollutants into the Tallapoosa River is irrelevant to the issue whether Brown was disqualified from representing UBT. There is no evidence indicating that the AEMC, or Brown in particular, had any involvement in ADEM's decision to file that action.