author: GRAVOIS, J.

text:
    Corey LAMBERT, Sr. v. Glenn DELCARPIO, Sheena Smith, Daniel Baker, Maria Landry, Denise Carpenter, Carl Nini and Darvell Edwards
    NO. 18-CA-712
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, COREY LAMBERT, SR., Willie M. Zanders, Sr.
    COUNSEL FOR DEFENDANT/APPELLEE, GLENN DELCARPIO, SHEENA SMITH, DANIEL BAKER, MARIA LANDRY, DENISE CARPENTER, CARL NINI AND DARVELL EDWARDS, Michael G. Fanning, Glenn D. Price, Jr.
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst
   GRAVOIS, J.

Plaintiff/appellant, Corey Lambert, Sr., appeals the trial court's August 21, 2018 judgment which granted defendants' exception of no cause of action and dismissed Mr. Lambert's defamation suit against defendants with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 18, 2018, Corey Lambert, Sr., former head football coach and assistant principal for discipline at John Ehret High School in Marrero, Louisiana, filed a suit for defamation naming the following members of the Jefferson Parish Public School System as defendants: Glenn Delcarpio, Sheena Smith, Daniel Baker, Maria Landry, Denise Carpenter, Darvell Edwards, and Carl Nini. The following facts and allegations were gleaned from Mr. Lambert's petition.

On April 18, 2017, Mr. Lambert and Maria Landry, principal of John Ehret, were called to a special conference at the Jefferson Parish School Board's Central Office regarding allegations that Mr. Lambert knowingly played an ineligible student-athlete and participated in sending a falsified document identified by the Louisiana High School Athletic Association. Mr. Lambert was cleared of those allegations, however, and returned to his coaching duties.

Subsequently, on April 19, 2017, Sheena Smith, John Ehret's Athletic Director, complained to Assistant Principal Glenn Delcarpio that she was concerned that Mr. Lambert might play an ineligible student. In response, Mr. Delcarpio contacted a former John Ehret co-worker, Carl Nini, who was serving as Athletic Director for the Jefferson Parish Public School System. Mr. Delcarpio was told by Mr. Nini to collect "letters of complaint" about Mr. Lambert. Mr. Delcarpio personally contacted John Ehret employees for "statements against Mr. Corey Lambert." On April 20, 2017, ten letters were given to Mr. Nini and Denise Carpenter, Chief of Student Support for the Jefferson Parish Public School System. Soon thereafter, Ms. Carpenter discussed the allegations against Mr. Lambert with Jefferson Parish Schools Superintendent Isaac Joseph. Ms. Carpenter was instructed by Superintendent Joseph to involve Darvell Edwards, the Executive Director of Principal Performance, in the investigation.

On April 24, 2017, Mr. Lambert met with Ms. Landry and Mr. Delcarpio regarding unapproved purchase orders, allegations of Mr. Lambert harassing teachers, and allegations of football players not being disciplined for serious offenses. Thereafter, Mr. Lambert was suspended from his job. A due process hearing was conducted on June 6, 2017 by the School System's Department of Human Resources regarding the various allegations against Mr. Lambert; it was recommended that Mr. Lambert be terminated. By letter dated August 8, 2017, Superintendent Joseph informed Mr. Lambert that he was being terminated for "willful neglect of duty and dishonesty." Subsequently, a state mandated post-termination hearing took place in October and November 2017 before a hearing officer.

Mr. Lambert's defamation suit alleges that the false allegations made against him resulted in his termination. Further, he asserts that defendants' false allegations against him were communicated to third parties in several ways. The petition alleges that Mr. Delcarpio, Ms. Carpenter, Ms. Smith and Ms. Landry defamed Mr. Lambert with false and malicious testimony during the public post-termination hearing. Additionally, Mr. Lambert alleged that "[f]alse and malicious letter [sic ] written and solicited by Daniel Baker [an English teacher at John Ehret] were communicated to third parties and the media via hearings held October and November 2017." Mr. Lambert contended that the false and defamatory statements solicited by Mr. Delcarpio were introduced to third parties and the media via letters and testimony presented at the public hearing. Finally, Mr. Lambert alleged that defendants injured his reputation and livelihood in violation of La. C.C. art. 2315 and his 14th Amendment liberty interest in his good name and reputation.

In response to the petition, defendants filed an exception of no cause of action, asserting that their statements and their testimony were protected by an absolute privilege since they were made during a quasi-judicial hearing or to a quasi-judicial officer charged with the duty to ascertain facts relative to the allegations of employee misconduct committed by Mr. Lambert. Specifically, defendants argued that the Jefferson Parish School Board is an administrative agency that has established written policies for its own governing, including a policy on investigations. Considering this, defendants argued that the Jefferson Parish School Board was mandated to investigate Mr. Lambert and was exercising a quasi-judicial function during its investigation.

Following a hearing on August 21, 2018, the trial court issued a written judgment sustaining defendants' exception of no cause of action and dismissing Mr. Lambert's case with prejudice. This appeal followed.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Mr. Lambert argues that the trial court erred in finding that defendants' alleged defamatory statements were subject to an absolute privilege based on testimony made during a quasi-judicial hearing because the hearing occurred in October and November 2017 and the statements were made prior to the hearing in April 2017 and published in media reports in August 2017. He argues that defendants' "own investigation" was based on the ten defamatory letters collected by Mr. Delcarpio after his private meeting with Ms. Smith.

Defendants respond that the absolute privilege applies not only to statements made during a quasi-judicial hearing, but also to statements made to an administrative officer while exercising the quasi-judicial functions of conducting a pre-hearing investigation. They argue that the April 2017 statements were made to Mr. Delcarpio, an employee of the Jefferson Parish School Board, during the School Board's pre-hearing investigation into the allegations of employee misconduct committed by Mr. Lambert. Thus, defendants argue, the contents of the April 2017 statements are protected by an absolute privilege.

The exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Khoobehi Props., LLC v. Baronne Dev. No. 2, L.L.C. , 16-506 (La. App. 5 Cir. 3/29/17), 216 So.3d 287, 297, writ denied , 17-0893 (La. 9/29/17), 227 So.3d 288. The appellate court reviews a trial court's ruling sustaining an exception of no cause of action de novo because the exception raises a question of law and the court's decision is based solely on the sufficiency of the petition. Id . The peremptory exception of no cause of action is triable on the face of the pleadings, and, for purposes of resolving issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id . Because Louisiana uses a system of fact pleading, a plaintiff is not required to plead a theory of recovery in his petition; however, mere conclusions of the plaintiff unsupported by facts will not set forth a cause of action. Id .

Defamation is a tort involving an invasion of a person's interest in his reputation and good name. Costello v. Hardy , 03-1146 (La. 1/21/04), 864 So.2d 129, 139 ; Sassone v. Elder , 626 So.2d 345, 350 (La. 1993). The essential elements of a defamation action are (1) defamatory words, (2) publication or communication to a third party, (3) falsity, (4) malice (actual or implied), and (5) resulting injury. Huxen v. Villasenor , 01-288 (La. App. 5 Cir. 9/25/01), 798 So.2d 209, 212. If any one of the required elements is not sufficiently proven, the cause of action fails. Costello , 864 So.2d at 140. Even when a plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows either that the statement was true, or that it was protected by a privilege, absolute or qualified. Costello , 864 So.2d at 141.

Under Louisiana law, communications made in a judicial or quasi-judicial proceeding carry an absolute privilege. Bienvenu v. Angelle , 254 La. 182, 223 So.2d 140, 144 (1969) (overruled on other matter, Gonzales v. Xerox Corporation , 254 La. 182, 320 So.2d 163 (1975) ). This protection is offered in such proceedings so that the witness, who is bound by his oath to tell the truth, may speak freely without fear of civil suit for damages for defamation. Bienvenu , supra .

Defendants rely on this Court's opinion in Connolly v. Stone , 01-929 (La. App. 5 Cir. 1/15/02), 807 So.2d 979, in support of their argument. There, the plaintiff, James Connolly, filed a defamation suit against Robert Stone regarding communications that Mr. Stone made about Mr. Connolly to the Jefferson Parish Board of Election Supervisors in respect to Mr. Connolly's duties as a Jefferson Parish poll commissioner. It was alleged that Mr. Stone made comments to the Deputy Clerk of Elections in Jefferson Parish about acts that Mr. Connolly committed during an election that was held on March 27, 1999. Mr. Connolly asserted that these statements led to his suspension, pending a hearing by the Board of Election Supervisors. The Jefferson Parish Clerk of Court/Chairman of the Jefferson Parish Board of Election Supervisors notified Mr. Stone and others who had worked with Mr. Connolly that the Board would be meeting to discuss Mr. Connolly's future and requested that they be present to voice their complaints in "this more formal atmosphere." Mr. Stone sent a written reply stating that he would not be able to attend the hearing, but would submit his observations about Mr. Connolly's conduct in writing. At the hearing, Mr. Stone's letter was introduced in lieu of his testimony and was attached to the record of the proceeding. The Board ultimately decided to allow Mr. Connolly to remain in his position. Thereafter, Mr. Connolly filed a defamation suit against Mr. Stone for his alleged comments and letter. In response, Mr. Stone filed an exception of no cause of action which the trial court sustained, finding the letter and its contents were absolutely privileged. Id . at 980.

On appeal, this Court cited Bienvenu , supra , where the Louisiana Supreme Court stated that the absolute privilege is extended to an administrative agency only when it is exercising judicial or quasi-judicial functions. This Court further considered the definition of "quasi-judicial" as:

A term applied to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.

Connolly , 807 So.2d at 981 (quoting Black's Law Dictionary, Fifth Edition).

In Connolly , this Court found that as the Jefferson Parish Board of Election Supervisors, acting on a statutory mandate, conducted their inquiry of Mr. Connolly to determine the veracity of the allegations against him, they were exercising a quasi-judicial function. Id . at 982. The Court went on to state that the investigation into Mr. Connolly included the "quasi-judicial functions of ascertaining the facts relative to allegations of negligence." The letter written by Mr. Stone was sent to the Jefferson Parish Board of Election Supervisors "within what can be deemed the scope of their quasi-judicial role." Thus, this Court found no error in the trial court's finding that Mr. Stone's letter was subject to an absolute privilege. Further, this Court agreed with the trial court in its finding that the statements Mr. Stone may have made to third parties in connection with the investigation of Mr. Connolly were subject to an absolute privilege as well as they were made by a non-party and a non-litigant to the hearing conducted by the Jefferson Parish Board of Election Supervisors. Id .

In the present case, upon review, we find the School Board had the authority to exercise quasi-judicial functions. See La. R.S. 17:81. The petition alleges that after a complaint was brought about Mr. Lambert by Ms. Smith, Mr. Delcarpio, the assistant principal, was told by Mr. Nini, the Athletic Director of the Jefferson Parish Public School System, to "collect letters of complaint." Eventually, as a result of the investigation, Mr. Lambert was terminated, and a state-mandated post-termination hearing occurred. We find that the School System was in the process of exercising its quasi-judicial authority at the time the letters were written. Mr. Nini requested the letters and thus was in the process of ascertaining the facts relative to allegations against Mr. Lambert. Accordingly, we find that the trial court did not err in determining that defendants' statements were subject to an absolute privilege. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Mr. Lambert argues that absolute privilege does not apply to his case because defendants were parties or litigants in the quasi-judicial proceedings held by the state-mandated hearing officer and the district court. He argues this case is distinguishable from Connolly because in Connolly , the defendant was a "non-party" or "non-litigant." However, in the present case, Mr. Lambert contends that defendants were "parties" or "litigants" who filed charges against him and wrote defamatory letters accusing him of wrongdoing in a court of law.

Louisiana has granted absolute immunity in judicial proceedings to a non-litigant, or a non-party witness. Lauga v. McDougall , 463 So.2d 754, 755 (La. App. 4th Cir. 1985), citing Moity v. Busch , 368 So.2d 1134, 1136 (La. App. 3d Cir. 1979) ; Hairford v. Long , 430 So.2d 393, 394 (La. App. 3d Cir. 1983) ; Bienvenu , supra . A "party" is defined as "one by or against whom a lawsuit is brought." Black's Law Dictionary (9th ed. 2009). A litigant is defined as "a party to a lawsuit." Black's Law Dictionary (9th ed. 2009).

Although Mr. Lambert argues on appeal that defendants "filed charges against him," we find no support for this in his petition. In his petition, Mr. Lambert alleged that defendants authored defamatory statements against him after a request for letters was made by Mr. Nini. Like the circumstances present in Connolly , the letters were written by defendants in connection with the investigation by the School System into the complaints against Mr. Lambert. Mr. Lambert further alleged that at the School Board's state-mandated public post-termination hearing, defendants defamed him with "false and malicious" testimony. We find that based on the allegations in the petition and the definitions of "party" and "litigant", defendants were not parties or litigants in the post-termination hearing before the School Board hearing officer, but merely were witnesses. Accordingly, their statements and testimony were subject to an absolute privilege. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Finally, in his third assignment of error, Mr. Lambert argues that the trial court failed to consider whether the privilege was abused, which requires that the grounds for abuse-malice or lack of good faith-be examined. He contends that this determination is normally a fact question for a jury.

Privileged communications are divided into two general classes: (1) absolute; and (2) conditional or qualified. Madison v. Bolton , 234 La. 997, 102 So.2d 433, 439 n. 7 (1958). The analysis for determining whether a conditional privilege exists involves a two-step process. Kennedy v. Sheriff of E. Baton Rouge , 05-1418 (La. 7/10/06), 935 So.2d 669, 682 (citing Smith v. Our Lady of the Lake Hosp. , Inc. , 93-2512 (La. 7/5/94), 639 So.2d 730 ). (Emphasis added.) First, it must be determined whether the attending circumstances of a communication occasion a qualified privilege. Id . Second, it must be determined whether the privilege was abused, which requires that the grounds for abuse-malice or lack of good faith be examined. Id . "While the first step is generally determined by the court as a matter of law, the second step of determining abuse of a conditional privilege or malice is generally a fact question for the jury '[u]nless only one conclusion can be drawn from the evidence.' " Id .

In the present case, defendants filed their exception of no cause of action asserting that their statements and testimony are protected by an absolute privilege, not a qualified or conditional privilege which requires the two-step analysis. Accordingly, we find that the trial court did not err in not considering the two-step analysis for determining whether a conditional privilege existed. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the trial court's judgment which sustained defendants' exception of no cause of action and dismissed Mr. Lambert's case with prejudice is affirmed.

AFFIRMED.

      Compare Cooksey v. Stewart , 41,336 (La. App. 2 Cir. 8/23/06), 938 So.2d 1206, writ denied , 06-2348 (La. 12/8/06), 943 So.2d 1087, in which the Second Circuit considered Connolly when also addressing an exception of no cause of action in a defamation suit. In Cooksey , the plaintiff, John Cooksey, a former Congressman, alleged that after he terminated the defendant, Ron Stewart, his former personal accountant and treasurer of his campaign committee, the defendant sent letters to the Federal Election Commission and the Office of Public Records notifying both that he was resigning as treasurer of the plaintiff's campaign committee due to "inappropriate conduct by the candidate." Cooksey , 938 So.2d at 1208. The plaintiff alleged that this statement was false, misleading, and malicious and caused him serious damage. Id. at 1209. The Court found that the trial court erred in determining that the defendant's statement was subject to an absolute privilege. The Court found that although the Commission had the authority to exercise quasi-judicial functions, it was not in the process of doing so at the time the remark was made. Unlike in Connolly , at the time the letters were sent, no investigation was underway with regard to the plaintiff's conduct, and the Commission had not requested any information from the defendant. Cooksey , 938 So.2d at 1211.

      Overruled on other grounds, Schaefer v. Lynch , 406 So.2d 185, 188 (La. 1981).


source: Caselaw Access Project

license: Public Domain

text:
    Armstead FRANKLIN, et al. v. CITY OF ALEXANDRIA
    CA 18-634
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
   Samuel L. Jenkins, Jr., Attorney at Law, 2419 Kings Highway, Shreveport, Louisiana 71103, (318) 636-4266, COUNSEL FOR PLAINTIFFS/APPELLANTS: Armstead Franklin, et al.

Larry English, Attorney at Law, 604 Riverside 2C, New York, New York 10031, (212) 281-7158, COUNSEL FOR PLAINTIFFS/APPELLANTS: Armstead Franklin, et al.

Howard B. Gist, III, The Gist Firm, A P.L.C., Post Office Box 13705, Alexandria, Louisiana 71315, (318) 448-1632, COUNSEL FOR DEFENDANT/APPELLEE: City of Alexandria

Claude F. Reynaud, Jr., Carroll Devillier, Jr., Breazeale, Sachse & Wilson, L.L.P., Post Office Box 3197, Baton Rouge, Louisiana 70821-3197, (225) 387-4000, COUNSEL FOR DEFENDANT/APPELLEE: City of Alexandria

Charles E. Johnson, Jr., Attorney at Law, Post Office Box 71, Alexandria, Louisiana 71309-0071, (318) 449-5015, COUNSEL FOR DEFENDANT/APPELLEE: City of Alexandria

Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.

CONERY, Judge.

The trial court dismissed the plaintiffs' claim for damages related to alleged overcharges by the municipally-owned utility system of the City of Alexandria (City) upon a determination of lack of subject matter jurisdiction. The plaintiffs appeal, challenging the trial court's determination that the September 27, 2017 petition instituting the matter for review of a May 20, 2017 Alexandria City Council (City Council) administrative ruling was untimely. The City responds to the appeal and additionally files a Motion for Partial Dismissal and/or Motion to Strike. For the following reasons, we affirm the trial court's ruling and deny the City's motion as moot.

FACTS AND PROCEDURAL HISTORY

The plaintiffs in this matter are customers of the utility system owned and operated by the City. By their May 2007 petition, as well as by amending petitions, the plaintiffs alleged that the City overcharged its customers "for a period of time dating from 1997 to the present." They asserted, in part, that such overcharges resulted from "the City's incorrect calculations of the fuel adjustment costs for electricity and the incorrect application of the monthly fuel adjustment rates." Holding themselves out as representatives of a potential class, the plaintiffs cited both tort and contract theories of recovery. They sought restitution for overcharges, damages, attorney fees, and costs.

Following a period of removal to federal court, the City responded to the 2007 petition with an exception of lack of subject matter jurisdiction and alleged that the plaintiffs' claim advanced a "rate claim" over which the City Council had primary jurisdiction. Thus, the City requested that the trial court defer the matter to the City Council and dismiss the suit pending resolution of the claim. By September 13, 2016 judgment, the trial court sustained the City's exception. It did so "based on the doctrine of primary jurisdiction" and upon finding that the City Council, "as the statutory governing body of the City Utility of Alexandria, Louisiana, should be the legislative body that initially considers the allegations made by Plaintiffs' herein, with the exception of Plaintiffs' claims for damages and attorneys' fees[.]" The judgment "specifically reserved and retained" the latter claims for the trial court's resolution but dismissed the plaintiffs' foundational suit without prejudice. The judgment declared that the plaintiffs' suit "may be brought for judicial review once the Alexandria City Council fully adjudicates Plaintiffs' allegations as a matter of first instance." The record contains no indication that the plaintiffs sought review of that judgment by either application for supervisory writs or by appeal.

Following the September 2016 judgment, the City Council passed Ordinance No. 178-2016, which provided, in part, the procedure for the adjudication of the plaintiffs' claims, authorization for the City Attorney to select an administrative law judge (ALJ), and applicable deadlines for the administrative process. Ordinance No. 178-2016 further provided that "the ALJ shall enter the appeals order detailing his or her procedure for conducting the appeal, in compliance with this Ordinance, to be completed in the form of his or her issuance of written reasons, certified as appealable, on or before July 28, 2017." After the appointment of the ALJ, the matter proceeded through the procedure designated by the City Council Ordinance.

Before the completion of that proceeding, however, the plaintiffs returned to the Ninth Judicial District Court in March 2017 by filing a "Petition for Judicial Review and a Stay Order of City Council Action and to Re-Urge Petition for Damages and Class Certification." The plaintiffs questioned the proceedings in the City Council and asserted that those proceedings operated in derogation of certain constitutional protections. Thus, the plaintiffs sought an order staying further actions of the City Council. In turn, the plaintiffs re-urged their claims before the trial court. The trial court denied the plaintiffs' request for a stay.

Following that denial, the City responded to the remainder of the March 2017 petition with the filing of a Dilatory Exception of Prematurity and Request for Sanctions. The City explained to the trial court that the City Council continued in the process of adjudicating the previously dismissed claims. Before the exception was heard, however, the ALJ completed the administrative proceedings and issued his final determination. On July 20, 2017, the ALJ signed an Order of Appeal in Connection with the Review Hearing Contemplated and Required by Ordinance No. 178-2016 of the City Council of the City of Alexandria, Louisiana (Order of Appeal).

By the Order of Appeal, the ALJ issued numerous findings of facts reflecting that, in contrast to documentary evidence submitted by the City, the plaintiffs offered no evidence in support of their claims. The plaintiffs instead entered only written objection. The ALJ ultimately found, in sum, that the City acted reasonably and within its discretion as a rate-making authority or body politic.

Turning to pertinent conclusions of law, the ALJ reviewed portions of the Alexandria Home Rule Charter and statutory authority relevant to the City's operation of a public utility, as well as sources of law addressing the procedures set forth by Ordinance No. 178-2016. Finally, and relevant here, the ALJ concluded his Order of Appeal by providing the process for review as follows:

This Order is intended to constitute the "appeal order," that creates an appealable judgment, and written reasons by findings of fact and conclusions of law, as required by Section IV(6)(F) of Ordinance No. 178-2016, and, to that end (and in conformity therewith), the undersigned ALJ hereby certifies this Order as appealable. A copy of this Order shall be provided to the presiding judge in the Franklin Litigation (as defined in Ordinance No. 178-2016), and to the Clerk of Court of the Ninth Judicial District Court, to serve as occasion may require.

With the Order of Appeal issued only days before, the trial court heard the exception of prematurity on July 26, 2017. The trial court sustained that exception by August 24, 2017 judgment. It again dismissed the plaintiffs' claims without prejudice. The judgment further reflects that the trial court also dismissed the City's request for sanctions at that time. As with the initial dismissal, the record does not reflect that the plaintiffs sought review of the August 24, 2017 judgment by either application for supervisory writs or by appeal.

The matter instead returned to the trial court on September 27, 2017, when the plaintiffs filed a Petition for Judicial Review of City Council Action and to Re-Urge Petition for Damages and Class Certification. By the petition, the plaintiffs summarized the City Council's administrative procedure, noted that they filed objections thereto, and again asserted that the procedure employed affected certain constitutional rights. In doing so, the plaintiffs referenced La.Const. art. 1, § 2 (Due Process of Law), La.Const. art. 1, § 3 (Right to Individual Dignity), La.Const. art. 1, § 22 (Access to Courts), La.Const. art. 1, § 23 (Prohibited Laws). Notwithstanding their challenge to the ordinances underlying the administrative procedure, the plaintiffs asserted by this petition that they had "exhausted administrative review by the City Council" and were, thus, entitled to re-urge their previously dismissed claims. In addition to doing so, the plaintiffs re-urged their 2007 motion for class certification.

In response to the 2017 petition, the City filed an exception of lack of subject matter jurisdiction. The City chiefly asserted that the trial court lacked jurisdiction due to the length of time between the ALJ's July 20, 2017 Order of Appeal and the September 27, 2017 filing of the petition. The City attached its memorandum in support and detailed the subject administrative procedure. It specifically noted that Ordinance No. 178-2016 required the ALJ to "enter the appeals order detailing his or her procedure for conducting the appeal, in compliance with this Ordinance," and to do so "on or before July 28, 2017." The ALJ did so on July 20, 2017. Yet, the City pointed out, the plaintiffs did not seek review until September 27, 2017. Focusing on the sixty-nine day delay from the ALJ's Order of Appeal, the City asserted that the order constituted a final judgment.

In advancing the appropriate delay for review to be used for calculation purposes, the City primarily urged the forty-five day period provided by La.R.S. 45:1192. The City alternatively argued that the petition for review was untimely even if otherwise considered in light of the thirty-day period applicable to matters under La.R.S. 49:964 of the Administrative Procedure Act (APA) or the sixty-day judicial appellate deadline provided by La.Code Civ.P. art. 2087.

Opposing the exception of lack of subject matter jurisdiction, the plaintiffs argued that none of the timelines cited by the City were applicable. The plaintiffs instead noted that the July 20, 2017 Order of Appeal contained no time limitation for appeal and that the trial court's earlier dismissal of the suit was without prejudice so as to permit reinstitution of that claim.

At the hearing on the exception, the trial court rejected the plaintiffs' claim in opposition. It instead noted the thirty-day period of the APA had well expired by the time of the plaintiffs' September 27, 2017 petition. And, alternatively, the trial court noted the expiration of the appellate delay of La.Code Civ.P. art. 2087 as well. By February 9, 2018 judgment, the trial court granted the exception of lack of subject matter jurisdiction and dismissed the plaintiffs' claim with prejudice.

The plaintiffs appeal that judgment, assigning the following as error:

1. The Trial Court erred in entering its September 13, 2016 judgment granting Defendant's Declinatory Exception of Lack of Subject Matter Jurisdiction and dismissing Plaintiffs' claims without prejudice because (a) the doctrine of primary jurisdiction was inapplicable to the instant matter since the action was not a rate case, (b) plaintiffs' claims sought damages for breach of contractual and fiduciary duties and negligence by the City of Alexandria (City), and (c) plaintiffs' claims fell squarely within the subject matter jurisdiction vested in the district court.
2. The Trial Court erred in entering its August 24, 2017 judgment granting Defendant's Dilatory Exception of Prematurity and dismissing Plaintiffs' Petition for Judicial Review and to Re-urge Petition for Damages and Class Certification because (a) City of Alexandria Ordinance 178 of 2016 (Ordinance) was ripe for judicial review upon final passage on November 29, 2016, (b) plaintiffs adversely affected did not have to wait until the remedy being a "Rebate Process" was implemented before raising their objections to the constitutionality and applicability of the Ordinance to their vested rights, and (c) the remedy proposed under the Ordinance could not be retroactively applied so as to divest plaintiffs of vested rights in their cause of action.
3. The Trial Court erred in entering its February 9, 2018 judgment granting Defendant's Declinatory Exception of Lack of Subject Matter Jurisdiction and dismissing Plaintiffs' claims with prejudice, because (a) plaintiffs' "rate claims" had been partially dismissed, without prejudice, to be returned to court upon completion of action by the City Council ... (b) any alleged time limitations raised by the Defendants were not applicable to Plaintiffs' rights to their claims heard by the court, and (c) plaintiffs' claims could be re-institute[d] before the court pursuant to La.Civil Code art. 1673.

(Emphasis in original.)

LAW AND DISCUSSION

Motion for Partial Dismissal and/or Motion to Strike

Before turning to the plaintiffs' assignments, we first note that the City has filed a Motion for Partial Dismissal and/or Motion to Strike with this court. By the pleading, the City contends that the plaintiffs' appeal designates only the February 1, 2018 judgment dismissing their claim with prejudice. The City points out that the plaintiffs' first two assignments address the two prior judgments of dismissal. Since appeals were not taken from the 2016 and 2017 rulings, the City contends, those judgments must be viewed as final. It urges this Court to strike the plaintiffs' related assignments and arguments.

We below determine that resolution of the plaintiffs' third assignment is determinative, as we conclude that an affirmation of the trial court's ruling that it lacked subject matter jurisdiction is warranted. Therefore, discussion of the two preceding judgments is precluded as discussion of those assignments would involve consideration of matters occurring prior to the trial court's loss of jurisdiction. For that reason, the City's motion is denied as moot. See Metro Riverboat Assoc., Inc. v. La. Gaming Control Bd. , 01-0185 (La. 10/16/01), 797 So.2d 656 (wherein the supreme court determined that the court of appeal acquired no appellate jurisdiction to address the merits of a claim when the district court had none as an initial matter).

Exception of Lack of Subject Matter Jurisdiction

Turning to the merits of the plaintiffs' claim, and as related in the factual background, the trial court sustained the City's exception of lack of subject matter jurisdiction upon a finding that all potential delays for review of the July 20, 2017 Order of Appeal expired prior to the plaintiffs' filing of their September 27, 2017 petition for review. The Order of Appeal had thus become final and was not subject to further review under the trial court's jurisdiction. See, e.g. , Smith v. City of Minden , 622 So.2d 1206, 1208 (La.App. 2 Cir. 1993) ("[T]he timeliness of ... an appeal from governmental administrative determinations is jurisdictional in nature, and once the delays have run the decision becomes final."); Robinson v. City of Baton Rouge , 566 So.2d 415, 418 (La.App. 1 Cir. 1990) ("[I]t is well settled that once the delays for appeal have run, an administrative ruling becomes final and is res judicata. Absent the timely filing of an appeal or petition for judicial review of an administrative ruling, the courts of this state lack jurisdiction to review that ruling." (Citations omitted.) ). On review, we consider the exception of lack of subject matter jurisdiction pursuant to the de novo standard of review as the inquiry is one of law. See Rhyne v. OMNI Energy Servs. , 14-711 (La.App. 3 Cir. 12/10/14), 155 So.3d 155.

As reported above, the City filed the exception of lack of subject matter jurisdiction in response to the plaintiffs' September 27, 2017 filing of the Petition for Judicial Review of City Council Action and to Re-Urge Petition for Damages and Class Certification. It noted the sixty-nine day delay in filing from the issuance of the Order of Appeal. At the time of the hearing on the exception, the parties considered whether thirty, forty-five, or sixty-day delay periods were applicable to the filing for appellate review of the City Council's determination of July 20, 2017. We consider each of these.

Louisiana Revised Statutes 45:1192

The City primarily suggested that the delay for review of the City Council ruling must be derived from La.R.S. 45:1192, the provision addressing judicial review of the Louisiana Public Service Commission (LPSC). The City acknowledges that La.Const. art. 4, § 21 (C) specifically exempts city-owned utilities from the regulation of the LPSC. It notes, though, that La.Const. art. 4, § 21 (E) (emphasis added) further provides for a right of appeal applicable to either the commission or a "public utility under the provisions of Subparagraph (3) of (D) of this Section." The City writes that, "[t]hus, the appellate procedures and standards of review applicable to LPSC decisions should be equally applied to decisions by municipally-owned utilities."

With regard to such LPSC orders, La.R.S. 45:1192 (emphasis added) provides for a forty-five day delay as follows:

If any of the persons, mentioned in R.S. 45:1191, or other party in interest, shall be dissatisfied with any order entered by the commission, adopting, fixing, changing, altering, or modifying, any rate, classification, rule, charge, or general regulation, and no application for rehearing is filed, the dissatisfied person may, within forty-five days after the order made by the commission becomes effective, file in a court at the domicile of the commission, a petition setting forth the particular cause of objection to the order or regulation of the commission complained of. When a timely application for a rehearing has been made at the commission, the time for appeal does not commence until the date of the commission order disposing of the rehearing application. All such cases shall be tried in the same manner as civil cases and shall be given precedence over all other civil cases in the court, and shall be heard and determined as speedily as possible. The court may affirm the order of the commission complained of, or it may change, modify, alter, or set it aside, as justice may require.

Although this provision is applicable to the LPSC, the City contends that jurisprudence indicates that this appellate process must be extended to the decision regarding municipal utilities.

Namely, the City references Gordon v. City of New Orleans , 08-0929 (La. 4/3/09), 9 So.3d 63, wherein the supreme court reviewed a decision of the City Council of New Orleans stemming from the Council's utility rate making process. In considering the appropriate standard of review, the supreme court observed that, "[j]ust as the LPSC has exclusive statewide regulatory and rate making powers over public utilities, the Council has exclusive regulatory and rate making authority over public utilities in New Orleans." Id. at 72. The court further referenced its history of reviewing orders of the LPSC under the arbitrary and capricious standard and concluded that, "[a]s both the LPSC and the Council are regulators of public utilities and experts in their knowledge of that field, we apply the same standard of review to the Council as we do to the LPSC." Id. Accordingly, the supreme court applied the arbitrary and capricious standard to the matter before it. Id. The City contends that the extension applicable in Gordon is also applicable as the Order of Appeal was made in the course of the Council's rate-making authority.

Significantly, the extension of the reasoning in Gordon related to the applicable standard of review. It did not relate to the timeliness of a petition for review and, in turn, consideration of subject matter jurisdiction. Pointedly, La.Code Civ.P. art. 3457 provides that: "There is no prescription other than that established by legislation." In this case, La.R.S. 45:1192 does not provide that prescriptive period.

Administrative Procedure Act

While the City primarily urged the applicability of the forty-five day period of La.R.S. 45:1191, it alternatively suggested that the matter was untimely upon the application of the thirty-day period of the APA. In this regard, La.R.S. 49:964(B) provides that:

Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after the transmittal of notice of the final decision by the agency or, if a rehearing is requested, within thirty days after the decision thereon.

While the City acknowledges that this matter did not proceed under the APA, it suggested to the trial court that the APA controls as the matter stemmed from an administrative proceeding over which there was no specific method of review. In pertinent part, La.R.S. 49:964(A)(1) (emphasis added) provides, in part, that:

[A] person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.

After review, however, we find that the City's assertion in this regard is in error. First, La.R.S. 49:964(A) relates to matters that arise "under this Chapter" and, like La.R.S. 49:964(B), refers to ones conducted by an "agency." This matter neither arose under the "Chapter," nor was it conducted by an "agency" under the terms of the APA.

On this latter point, La.R.S. 49:951(2) (emphasis added) provides:

"Agency" means each state board, commission, department, agency, officer, or other entity which makes rules, regulations, or policy, or formulates, or issues decisions or orders pursuant to, or as directed by, or in implementation of the constitution or laws of the United States or the constitution and statutes of Louisiana, except the legislature or any branch, committee, or officer thereof, any political subdivision, as defined in Article VI, Section 44 of the Louisiana Constitution, and any board, commission, department, agency, officer, or other entity thereof , and the courts.

Rather than an agency, this matter proceeded before the City Council, the legislative arm of the City, a political subdivision of the State. See La.Const. art. 6, § 44 (2) (" 'Political subdivision' means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions."). Accordingly, the plaintiffs appropriately discount the applicability of the thirty-day period of La.R.S. 49:964(B).

Alexandria Code of Ordinances

We additionally note that, in ruling, the trial court referenced not only the thirty-day period of the APA, but further noted the consistency between that former period and the thirty-day period for review contained within the Alexandria Code of Ordinances. The City introduced a portion of that Code as an exhibit in support of its earlier exception of prematurity. Reference to that Subsection, titled "Judicial Review," reveals that:

a. A person who is aggrieved by a final decision or order in a hearing proceeding is entitled to judicial review.
b. Proceedings for review may be instituted by filing a petition in the district court of the parish in which the city is located within (30) days after mailing of notice of the final decision by the city.
c. The filing of the petition does not itself stay enforcement of the city's decision. The city may grant, or the reviewing court may order, a stay upon appropriate terms.

Certainly, the plaintiffs' September 27, 2017 filing of its petition for review did not satisfactorily fall within such delay as applicable.

Devolutive Appeal

Finally, and as expressed by the trial court, it is clear that even upon application of the more expansive judicial appellate delays, the plaintiffs' petition for review was untimely. Providing the delay for a devolutive appeal, La.Code Civ.P. art. 2087 states:

A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

Obviously, the period between the July 20, 2017 issuance of the ALJ's Order of Appeal and the September 27, 2017 filing of the petition for review exceeded the sixty-day delay of Article 2087.

Dismissal Without Prejudice

The plaintiffs additionally assert that, since the trial court dismissed earlier petitions without prejudice, the instant matter could be refiled without application of appellate delays. They cite La.Code Civ.P. art. 1673 for support and note that it provides: "A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action."

Nevertheless, while the trial court initially dismissed the plaintiffs' claims without prejudice, it did so in light of the proceedings ordered before the City Council. Those proceedings were conducted and resulted in the type of final adjudication anticipated by the trial court's order. As discussed above, the plaintiffs did not avail themselves of timely review of that adjudication, resulting in its finality. Additionally, and as remarked upon by the trial court in ruling, the supreme court has explained that there is no event in which there is "an absence of statutory provision for the time delays within which the petition [for judicial review of an administrative order] must be filed. The equitable doctrine of laches, therefore, has no application in such cases." Corbello v. Sutton , 446 So.2d 301, 302 (La.1984).

Constitutionality Issues

We finally note that, in addition to their request for review of the Order of Appeal and to the re-urging of their claim for damages, the plaintiffs also suggest that their petition alleges certain constitutional violations stemming from the Ordinance enacted by the City to establish the procedure. Undoubtedly, pursuant to La.Const. art. 5, § 1, "[t]he judicial power of the state is constitutionally vested in the courts." ANR Pipeline Co. v. La. Tax Comm'n , 02-1479, p. 8 (La. 7/2/03), 851 So.2d 1145, 1150 (quoting Midboe v. Comm'n on Ethics for Pub. Emps. , 94-2270, p. 7 (La. 11/30/94), 646 So.2d 351, 355 ). Here, the plaintiffs raised their claims by their second-filed petition of March 10, 2017, which the trial court dismissed upon a finding of prematurity. The plaintiffs did not seek review of that determination at that time. Instead, they now question the trial court's determination that their March 2017 claim was premature and further seek to re-urge their constitutional claims in the petition now under consideration. We have determined above that the trial court appropriately concluded that it lacked subject matter jurisdiction due to finality of the underlying judgment. Accordingly, we do not further address the plaintiffs' contention in this regard.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The Motion for Partial Dismissal and/or Motion to Strike is denied as moot. Costs of this proceeding are assessed to the plaintiffs/appellants.

AFFIRMED. MOTION FOR PARTIAL DISMISSAL AND/OR MOTION TO STRIKE DENIED AS MOOT.

      The plaintiffs cited the potential of class certification in seeking the recusal of the judges of the Ninth Judicial District Court on the grounds of La.Code Civ.P. art. 151(A)(3), (A)(4), and (B)(4). Each of the judges of that court thereafter entered orders of self-recusal. On April 2, 2013, the Louisiana Supreme Court appointed Judge James H. Boddie, Jr., to serve as judge ad hoc of the matter.

      Article 4, § 21(C) provides, in part, that:
      The commission shall have no power to regulate any common carrier or public utility owned, operated, or regulated on the effective date of this constitution by the governing authority of one or more political subdivisions, except by the approval of a majority of the electors voting in an election held for that purpose; however, a political subdivision may reinvest itself with such regulatory power in the manner in which it was surrendered.

      Inapplicable in this case, La.Const. art. 4, § 21 (D)(3) provides:
      After the effective filing date of any proposed schedule by a public utility which would result in a rate increase, the commission may permit the proposed schedule to be put into effect, in whole or in part, pending its decision on the application for rate increase and subject to protective bond or security approved by the commission. If no decision is rendered on the application within twelve months after such filing date, the proposed increase may be put into effect, but only if and as provided by law and subject to protective bond or security requirements, until final action by a court of last resort.

      The plaintiffs suggested to the trial court that they had no record of "being served" with the Order of Appeal from the ALJ. The trial court rejected that assertion due to the record's inclusion of July 20, 2017 correspondence from the ALJ informing the trial court of the Order of Appeal and attaching the Order thereto. The trial court observed that counsel for the plaintiffs was included in the service list.


text:
    Victor D. JONES v. STATE of Mississippi
    2017-CT-01167-COA
    Supreme Court of Mississippi.
    Filed: April 30, 2019 Closed: June 27, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    James Douglas WILLIE, Sr. v. STATE of Mississippi
    2016-CT-01416-COA
    Supreme Court of Mississippi.
    Filed: March 26, 2019 Closed: June 27, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Cortez Deontae BASS v. STATE of Mississippi
    2017-CT-01009-COA
    Supreme Court of Mississippi.
    Filed: April 9, 2019 Closed: June 20, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Farra L. Cassidy SHERIDAN v. James P. CASSIDY, Jr.
    2017-CT-00960-COA
    Supreme Court of Mississippi.
    Filed: April 4, 2019 Closed: June 6, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Darren Lee WHARTON v. STATE of Mississippi
    2017-CT-00441-SCT
    Supreme Court of Mississippi.
    Filed: April 8, 2019 Closed: June 27, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Allan David COOPER v. STATE of Mississippi
    2018-CT-00021-COA
    Supreme Court of Mississippi.
    Filed: April 15, 2019 Closed: June 6, 2019
    Motion Desc: Writ of Certiorari.
    Certiorari - Denied.


text:
    Jeffrey Peyton HORN v. STATE of Mississippi
    2017-CT-01223-COA
    Supreme Court of Mississippi.
    Filed: April 11, 2019 Closed: June 6, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    TNHYIF REIV GOLF LLC v. FORREST COUNTY, Mississippi
    2017-CT-00574-COA
    Supreme Court of Mississippi.
    Filed: April 9, 2019 Closed: June 13, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    DESOTO COUNTY, Mississippi v. STANDARD CONSTRUCTION COMPANY, INC.
    2018-CT-00027-SCT
    Supreme Court of Mississippi.
    Filed: May 10, 2019 Closed: June 27, 2019
    Motion Desc: Appellant's Petition for Writ of Certiorari.
    Certiorari - Granted.


text:
    Faron YOUNG v. STATE of Mississippi
    2017-CT-00357-COA
    Supreme Court of Mississippi.
    Filed: June 5, 2019 Closed: June 20, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Dismissed.


author: C. WILSON, J., FOR THE COURT: McCARTY, J., SPECIALLY CONCURRING:

text:
    Stephen MONTALTO, Appellant v. STATE of Mississippi, Appellee
    NO. 2018-CP-00771-COA
    Court of Appeals of Mississippi.
    May 21, 2019
    ATTORNEY FOR APPELLANT: STEPHEN MONTALTO (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: DARRELL C. BAUGHN, JACKSON
    BEFORE J. WILSON, P.J., McCARTY AND C. WILSON, JJ.
   C. WILSON, J., FOR THE COURT:

¶1. Stephen Montalto appeals the circuit court's dismissal of his motion for post-conviction relief (PCR). We find the circuit court erred in finding that it lacked jurisdiction, so we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶2. After pleading guilty to aggravated assault and kidnapping charges in 2008, Montalto was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) followed by five years of supervised probation. The kidnapping offense involved a young child, so he was also ordered to register as a sex offender.

¶3. Because Montalto pled guilty, he did not directly appeal his conviction and sentence. Montalto later filed two PCR motions, which the circuit court dismissed. Montalto v. State , 119 So.3d 1087, 1089 (¶1) (Miss. Ct. App. 2013). Montalto appealed both dismissals, asserting (1) that his due-process rights were violated and (2) that he received ineffective assistance of counsel. Id. at 1092-93 (¶9). This Court found Montalto's claims lacked merit and affirmed the circuit court's dismissals. Id. at 1097 (¶26).

¶4. The record indicates that while incarcerated, Montalto served in several jobs as a "trusty" and took advantage of self-improvement opportunities offered by MDOC, such that MDOC allowed him to earn credit toward his twenty-year sentence. On December 20, 2014, MDOC released Montalto from incarceration and placed him on earned-release supervision (ERS). As part of this process, Montalto registered as a sex offender as previously ordered by the sentencing court.

¶5. Approximately three weeks after Montalto's release, a field officer filed a Rule Violation Report (RVR) with MDOC asserting Montalto's residence did not meet the sex offender registration requirements. Following an administrative hearing on the RVR, MDOC revoked Montalto's ERS for failure to abide by ERS conditions. Montalto was reclassified and returned to prison.

¶6. Montalto appealed the ERS revocation through MDOC's administrative remedy program (ARP). On March 17, 2015, MDOC noted that Montalto's "[f]ailure to complete the conditions of ERS ha[d] been investigated" and concluded that because his kidnapping conviction was statutorily classified as a sex offense, he had actually never been eligible for ERS. As a result, MDOC denied Montalto's appeal and request for ERS reinstatement.

¶7. In April 2015, Montalto filed a writ of habeas corpus in federal court and claimed his revocation and reclassification were unlawful. The federal court dismissed the writ due to Montalto's failure to exhaust his state court remedies. Montalto v. Miss. Dep't of Corrections , No. 3:15-CV-00457-CWR-FKB, 2017 WL 4340273, at *9 (S.D. Miss. Sept. 29, 2017).

¶8. In December 2017, Montalto filed an application for leave with the supreme court in an effort to proceed with a third motion for PCR in circuit court based on MDOC's administrative actions. Prior to receiving an order from the supreme court, Montalto filed a motion for PCR in the Rankin County Circuit Court, asserting (1) unlawful revocation of ERS, (2) unlawful revocation of earned time, and (3) unilateral changing of his charge.

¶9. On April 27, 2018, the circuit court found it lacked jurisdiction pursuant to Mississippi Code Annotated section 99-39-7 (Rev. 2015) and dismissed Montalto's third motion for PCR. Specifically, the circuit court found that Montalto's "conviction and sentence [were] affirmed by the Mississippi Court of Appeals" and that Montalto had "failed to obtain the necessary order from the Mississippi Supreme Court allowing him to file a motion for post-conviction relief."

¶10. A few days later, the supreme court found Montalto's application for leave was not properly before it, noting "Montalto was convicted by way of a guilty plea and there has never been a direct appeal of his conviction and sentence." The supreme court dismissed the application "without prejudice to be filed in the [circuit] court."

¶11. Montalto now appeals the circuit court's dismissal of his third motion for PCR, asserting the circuit court "erred in finding it lacked jurisdiction and dismissing [his motion for PCR that] he had filed contesting his ... ERS revocation."

STANDARD OF REVIEW

¶12. We review a circuit court's findings of fact regarding denial or dismissal of a PCR motion for abuse of discretion. Wallace v. State , 180 So.3d 767, 769 (¶7) (Miss. Ct. App. 2015). Questions of law are reviewed de novo. Id.

ANALYSIS

¶13. The circuit court dismissed Montalto's motion for PCR for lack of jurisdiction pursuant to section 99-39-7. Section 99-39-7 provides:

The motion under this article shall be filed as an original civil action in the trial court , except in cases in which the petitioner's conviction and sentence have been appealed to the Supreme Court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed , the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in termtime or in vacation, and an order granted allowing the filing of such motion in the trial court. The procedure governing applications to the Supreme Court for leave to file a motion under this article shall be as provided in Section 99-39-27.

(Emphasis added). As the supreme court pointed out in its order on Montalto's application for leave, albeit after the circuit court dismissed Montalto's PCR motion, "Montalto was convicted by way of a guilty plea and there has never been a direct appeal of his conviction and sentence."

¶14. Given that Montalto never directly appealed his conviction and sentence, he was not required to seek leave from the supreme court before filing his PCR motion. The circuit court thus erred in dismissing Montalto's PCR motion for lack of jurisdiction pursuant to section 99-39-7. The circuit court has exclusive original jurisdiction to consider the merits of Montalto's PCR motion. See Graham v. State , 85 So.3d 847, 850-51 (¶¶5-6) (Miss. 2012). Accordingly, we reverse and remand to the circuit court for further proceedings consistent with this opinion.

¶15. REVERSED AND REMANDED.

BARNES, C.J., CARLTON AN D J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD AND LAWRENCE, JJ., CONCUR. McCARTY, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION.

McCARTY, J., SPECIALLY CONCURRING:

¶16. While I acknowledge that we must follow applicable precedent in reversing the circuit court's jurisdictional ruling, all this does is delay the inevitable. Under precedent it is clear that Mr. Montalto was never legally eligible for earned-release supervision (ERS). I write separately to emphasize that what we are bound to do today unnecessarily lengthens the resolution of Mr. Montalto's claim, burdening the petitioner as well as our circuit court.

¶17. In general, the Court of Appeals is "able to affirm [a] circuit court because of the longstanding rule that we may affirm the trial court when it reaches the right result but for the wrong reason." McClurg v. State , 870 So.2d 681, 682 (¶6) (Miss. Ct. App. 2004). Yet as pointed out by the majority, the Supreme Court has also ruled that "it was improper for the Court of Appeals to rule on the merits of [a petitioner's] motion without the circuit court doing so first, as the circuit-court had exclusive, original jurisdiction."

Graham v. State , 85 So.3d 847, 851 (¶7) (Miss. 2012).

¶18. While I appreciate that distinction, which may act to save certain PCRs from denial, in this unique case there seems to be only one possible result. The petitioner pled guilty to a kidnapping charge involving a child under the age of eighteen. When the victim of a kidnapping is under the age of eighteen, kidnapping is statutorily defined as a "sex offense." Miss. Code Ann. § 45-33-23(h)(i) (Supp. 2018). A person convicted of a sex offense is not eligible for earned-time allowance or, by extension, ERS, which is obtained through earned-time allowance. See Miss. Code Ann. § 47-5-139(1)(d) (Rev. 2015); Thomas v. Miss. Dep't of Corr. , 248 So.3d 786, 791 (¶20) (Miss. 2018).

¶19. This Court has repeatedly turned back challenges in very similar cases as the one presented today. King v. McCarty , 196 So.3d 175, 176 (¶1) (Miss. Ct. App. 2016) ; Culbert v. Epps , 120 So.3d 983, 985 (¶11) (Miss. Ct. App. 2012) ; Adams v. Epps , 900 So.2d 1210, 1212-13 (¶10) (Miss. Ct. App. 2005). In Culbert , an inmate convicted of a sex offense was mistakenly informed that he had accumulated earned time. Culbert , 120 So.3d at 985 (¶11). Upon realizing the error, MDOC removed the inmate's earned time. Id. at 984 (¶2). The inmate subsequently filed a complaint seeking relief, which the circuit court dismissed. Id. at (¶3). The inmate appealed, asserting that his due-process rights were violated when MDOC removed his earned time. Id. at (¶1). This Court referenced Adams in affirming the circuit court's dismissal, noting that it is legally impossible for an inmate to earn time when serving a sentence for a sex offense. Id. at 985 (¶¶10-11, 13). We went on to find that because "time was never actually earned, nothing was taken from [the inmate] in violation of his due-process rights." Id. at (¶11) ; see also Fields v. Ladner , 226 So.3d 599, 602 (¶8) (Miss. Ct. App. 2017) ("[A]n inmate has no vested liberty interest in receiving earned time.").

¶20. I believe the same situation is present in this case. There can only be one result, and so the better route would be to end this process today instead of reversing and remanding.

¶21. I also have grave concerns about a concerning pattern of delay exhibited by the State that unnecessarily delayed resolution of the claims made by the defendant. As the majority points out, the defendant previously asked for relief in federal court. During those proceedings, the State repeatedly defied multiple orders from both the magistrate and the district court itself to produce transcripts of the proceedings that resulted in a finding he had violated ERS. Montalto v. Miss. Dep't of Corr ., No. 3:15-CV-00457-CWR-FKB, 2017 WL 4340273, at *2-4 (S.D. Miss. Sept. 29, 2017). During a hearing held before the district court, the MDOC hearing officer admitted that there were no transcripts of any hearing because she "made clear that the recordings of many MDOC disciplinary hearings were abandoned." Id. at *4. Stunningly, the MDOC officer "testified that she found Montalto guilty because she was instructed to do so before the hearing began ...." Id. (emphasis in original).

¶22. After examining the conduct by the State, the district court concluded it was "alarmed by the facts of this case and distressed with the practices at MDOC and the Attorney General's Office uncovered during these proceedings and which may never have been exposed but for Montalto asserting that he had been deprived due process and the filing of his motions for contempt." Id. at *7. This pattern of behavior meant that "the Attorney General's Office has disregarded Court Orders, presented incomplete information, and submitted patently false statements to the Court." Id.

¶23. The district court was greatly troubled by this behavior and concerned with "[t]he nonchalance with which the State adopted false positions" because this "highlights the philosophy all too often shown by MDOC and the Attorney General's Office: ensuring just convictions obtained through just means is not a priority, or even a consideration." Id. at *8. The district court recognized the difficulty of defending against the heavy amounts of habeas cases, and that "prisoners file many, many specious and meritless petitions, and those who have the duty to respond may become jaded." The district court warned that "[b]eing jaded is one thing, but refusing to comply with directives from the court is something which cannot be excused regardless of the validity of any defenses to the claims." Id. The district court advised the attorneys for the State to revisit the Lawyer's Creed. Id. at *8 n.11.

¶24. Regarding the merits of the case, the district court could not see how MDOC's mock "hearings" revoking the ERS of the defendant "satisfy due process considerations," since "[t]here is no way to verify the contents of proceedings or that they even take place at all, because recordings apparently are not maintained and readily abandoned." Id. at *7. "And even if the contents were knowable, they do not affect the hearing officer's determination, as [the MDOC officer] testified that she was instructed by MDOC executives to find Montalto guilty before she heard any evidence." Id. The district court concluded: "This admission is more than troubling; it is a betrayal of justice." Id. Nonetheless, the district court declined to impose monetary sanctions on the State, and dismissed the defendant's claims for failure to exhaust administrative remedies-where he then made his way to our Court of Appeals. Id. at *9.

¶25. Before this Court, and despite this ruling by a federal district court, the State dug its heels in again. The State asserted in its brief that "Montalto was given a proper hearing for both his RVR and his re-classification, [and] his due process was protected ...." In light of the district court's ruling, and the uncontested facts and procedural posture of this case, I find the State's position statement beggars belief.

¶26. My colleague Judge Lawrence has recently written that "[t]he entire fundamental foundation of the criminal justice system is that the innocent should suffer no harm under our law and that guilty persons should be held accountable for their illegal acts upon a constitutional and legal investigation and trial." Foster v. State , No. 2017-KA-01466-COA, --- So.3d ----, ----, 2019 WL 1349723, at *3 (¶17) (Miss. Ct. App. Mar. 26, 2019) (Lawrence, J., specially concurring). I would add to this lofty statement that once convicted, we should continue to treat those incarcerated or recently released with dignity and accord them due process as the law requires. As the district court wrote, "No person is stripped of all of his dignity or his right to due process upon incarceration." Montalto , 2017 WL 4340273, at *8.

¶27. The better path is one where the State genuinely grapples with the claims made by a petitioner, which will allow our Court to understand the real issues and resolve the dispute placed before us. This will allow all those seeking redress before our court system to have a fuller measure of justice and not one plagued by obstruction or delay.

      ERS is different than post-release supervision. Sobrado v. State , 168 So.3d 1114, 1119 (¶16) (Miss. Ct. App. 2014). ERS "is operated exclusively by the MDOC, with no involvement by circuit courts." Id. at 1118 (¶15). While violations of post-release supervision conditions are reported to the circuit court, "[v]iolations of ERS conditions are only reported to the MDOC." Id. at 1118-19 (¶¶15-16) (citing Miss. Code Ann. § 47-7-27(3) (Supp. 2013)). After an ERS violation is reported to MDOC, an MDOC hearing officer will conduct an administrative revocation hearing. Administrative revocation hearing decisions must be appealed through MDOC's administrative remedy program. Miss. Code Ann. § 47-5-138(6).

      Mississippi Code Annotated section 47-5-139(1)(d) (Rev. 2015) provides that a person convicted of a sex crime is ineligible for earned-time allowance. Kidnapping is a sex offense when, as here, the victim is under the age of eighteen. Miss. Code Ann. § 45-33-23(h)(i) (Rev. 2015). Upon investigation, MDOC learned that it had miscoded Montalto's kidnapping offense without the sex offender identifier and that its initial placement of Montalto on ERS was erroneous because Montalto was ineligible for release.

      At the time of Montalto's plea, "sex offense" was defined in subsection (g)(i). The Mississippi Legislature subsequently amended section 45-33-23, and the definition of "sex offense" is now found in subsection (h)(i).


text:
    WC BAKER COMPANY, LLC v. Philden STOCKTON
    2017-CT-01710-COA
    Supreme Court of Mississippi.
    Filed: April 17, 2019 Closed: June 27, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


author: TINDELL, J., FOR THE COURT:

text:
    HE SHAO, Appellant v. UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, Appellee
    NO. 2018-CP-00722-COA
    Court of Appeals of Mississippi.
    May 21, 2019
    ATTORNEY FOR APPELLANT: HE SHAO (PRO SE)
    ATTORNEY FOR APPELLEE: MARK D. RAY
    BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ.
   TINDELL, J., FOR THE COURT:

¶1. On December 9, 2014, He Shao filed a complaint against the University of Mississippi Medical Center (UMMC) in the Madison County Circuit Court after her termination from a post-doctoral fellowship program with UMMC in 2011. On October 5, 2015, the Madison County Circuit Court dismissed the case for failure to properly serve the Attorney General's Office within the time period prescribed by Mississippi Rule of Civil Procedure 4. He Shao then filed a second complaint on February 17, 2017, in Hinds County Circuit Court, which the court later dismissed based upon the doctrines of res judicata and judicial estoppel. He Shao now appeals the circuit court's decision, arguing that dismissal of her second claim was improper because the Madison County Circuit Court's order of dismissal was not a final judgment on the merits. This Court declines to apply the doctrines of res judicata and judicial estoppel to this case, but we find that He Shao's claim is barred by the statute of limitations. Therefore, the Hinds County Circuit Court's dismissal of He Shao's second complaint is affirmed.

FACTS

¶2. On March 9, 2011, He Shao began her post-doctoral fellowship program in the Department of Pathology at UMMC. In August of 2011, she was terminated from the program and informed by a professor and several UMMC staff members that her last day would be August 15, 2011. Aggrieved by her termination, He Shao filed a complaint against UMMC in the Madison County Circuit Court on December 9, 2014, alleging claims for breach of contract, wrongful termination, abuse of power, knowingly violating the law, misconduct, fraud, and federal civil rights violations. After she failed to properly serve the Attorney General within 120 days, pursuant to Mississippi Rule of Civil Procedure 4(d)(5), the statute of limitations began to run again. On October 5, 2015, the Madison County Circuit Court granted a motion to dismiss on behalf of UMMC and dismissed He Shao's claim for failure to serve the complaint within 120 days. He Shao then filed an untimely appeal with the Mississippi Supreme Court, which UMMC moved to dismiss for lack of appellate jurisdiction. The Supreme Court granted UMMC's motion and then subsequently denied eight separate motions filed by a dissatisfied He Shao.

¶3. He Shao re-filed her complaint against UMMC on February 17, 2017, in the Hinds County Circuit Court. On May 1, 2018, the Hinds County Circuit Court entered an order dismissing the complaint based upon the doctrines of res judicata and judicial estoppel. In its order, the circuit court found that the issues raised by He Shao's new complaint were all fully and finally adjudicated or should have been raised in her case before the Madison County Circuit Court. He Shao now appeals this decision.

STANDARD OF REVIEW

¶4. We review a ruling court's decision to grant a motion to dismiss de novo. Ralph Walker, Inc. v. Gallagher , 926 So.2d 890, 893 (¶3) (Miss. 2006). This Court is "not required to defer to the [circuit] court's judgment or ruling," but rather to sit in the same position as the circuit court in the original matter. Id. at (¶4).

ANALYSIS

¶5. The Hinds County Circuit Court dismissed He Shao's complaint based upon the doctrines of res judicata and judicial estoppel. For res judicata to apply, there must have been a final judgment on the merits of the plaintiff's prior case. Beene v. Ferguson Automotive Inc. , 37 So.3d 695, 698 (¶7) (Miss. Ct. App. 2010). Res judicata aims to prevent plaintiffs from attempting to "bring in a second forum claims that were part of a single body of operative facts already litigated in another forum." Gray v. Univ. of Miss. Sch. of Med. , 996 So.2d 75, 81 (¶17) (Miss. Ct. App. 2008). UMMC asks this Court to apply the doctrine of res judicata to cases dismissed based upon the expiration of the statute of limitations. But, there was no full and final judgment on the merits of He Shao's first claim based upon the statute of limitations. The Madison County Circuit Court's order granted the motion to dismiss by UMMC solely for failure to properly serve the Attorney General's Office within 120 days. Generally, such dismissals are granted without prejudice, allowing plaintiffs to rightfully re-file their actions if the statute of limitations has not lapsed. See Watters v. Stripling , 675 So.2d 1242, 1243 (Miss. 1996). But, UMMC made no argument in its motion to dismiss that the statute of limitations had expired, and likewise, the Madison County Circuit Court made no final judgment of the same. Because the circuit court made no final judgment based upon the expiration of the statute of limitations, we find that the Hinds County Circuit Court was without authority to dismiss He Shao's second complaint on the basis of res judicata and judicial estoppel.

¶6. While we disagree with the Hinds County Circuit Court's dismissal based upon res judicata, we do, however, exercise our authority to affirm the circuit court's decision based upon the lapse of the statute of limitations. See Harbit v. Harbit , 3 So.3d 156, 163 (¶24) (Miss. Ct. App. 2009) ("An appellate court may affirm a trial court on other grounds if it finds that the trial court reached the right result despite its flawed or erroneous premises."). He Shao's first and second lawsuits against UMMC stemmed from her termination in August of 2011. "UMMC is an instrument of the State of Mississippi and is subject to the requirements of the Mississippi Tort Claims Act (MTCA)." Univ. of Miss. Med. Ctr. v. McGee , 999 So.2d 837, 839 (¶7) (Miss. 2008). As such, any state tort claims against UMMC would be subject a one-year statute of limitations. Miss. Code Ann. § 11-46-11(3) (Rev. 2012). Further, in Mississippi, a three-year statute of limitations applies to a breach of contract claim. Miss. Code Ann. § 15-1-49. For federal civil rights violations, a three-year statute of limitations also applies. Edmonds v. Oktibbeha County , 675 F.3d 911, 916 (5th Cir. 2012) ("Because no specified federal statute of limitations exists for § 1983 suits, federal courts borrow the forum state's general or residual personal-injury limitations period ... which in Mississippi is three years."). Because He Shao's termination dates back to August 2011, any complaint filed after 2014 would be time-barred. He Shao's second complaint was filed on February 17, 2017, well past the expiration of any applicable statute of limitations for her claims. As such, we find that the complaint was properly dismissed, not based upon res judicata, but due to the running of the statute of limitations.

CONCLUSION

¶7. He Shao's first complaint was dismissed by the Madison County Circuit Court for failure to serve process within 120 days. However, there was no final judgment on the merits of the first complaint based upon the statute of limitations. While we disagree with the Hinds County Circuit Court's use of res judicata and judicial estoppel to dismiss He Shao's second complaint, we do find that her second complaint was filed well past the expiration of any applicable statutes of limitations. For that reason, we affirm Hinds County Circuit Court's dismissal.

¶8. AFFIRMED.

BARNES, C.J., CARLTON AN D J. WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.