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Stevens v. ST. Tammany Parish Government

Court of Appeals of Louisiana, First Circuit

January 18, 2017

TERRI LEWIS STEVENS AND JENNIFER FRUCHTNICHT, WIFE OF/AND CRAIG RIVERA
v.
ST. TAMMANY PARISH GOVERNMENT

         Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Case No. 2015-10649 The Honorable Allison H. Penzato, Judge Presiding

          L. Kevin Coleman Mandeville, Louisiana Counsel for Plaintiffs/Appellants Terri Lewis Stevens and Jennifer Fruchtnicht, wife of/and Craig Rivera

          James L. Bradford, III Kirk N. Aurandt D. Stephen Brouillette, Jr. Covington, Louisiana Counsel for Defendant/Appellee St. Tammany Parish Government

          BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.

          THERIOT, J.

         This is a companion case to Stevens v. St. Tammany Parish Government, 16-0197 (La.App. 1 Cir. __/__/__), __ So.3d __, handed down this same date. The plaintiffs-appellants, Terri Lewis Stevens and Jennifer Fruchtnicht, wife of/and Craig Rivera (collectively "the petitioners"), appeal a judgment of the trial court in favor of the defendant-appellee, St. Tammany Parish Government ("STPG"), finding Ms. Stevens and her attorneys in contempt of court, ordering them to pay STPG certain costs and attorney fees, and ordering that a protective order be made permanent. For the following reasons, we grant STPG's motion to convert the suspensive appeal to a devolutive appeal, maintain the appeal, and affirm the trial court's judgment.

         FACTS AND PROCEDURAL BACKGROUND

         On February 18, 2015, the petitioners filed a petition for injunctive relief, damages, and attorney fees against STPG. The petitioners claimed they were the owners of adjoining five-acre tracts of land located in St. Tammany Parish, Louisiana, bordering Dove Park Road, a thoroughfare owned and maintained by STPG, and which fronts the northern border of Dove Park Subdivision. The petitioners claimed that in the 1950s, STPG or its predecessor in interest approved the development of Dove Park Subdivision, which, as originally designed, did not affect the drainage of water on the petitioners' property. However, the petitioners claimed that, in or around 2003, STPG conceived and executed a public works project to pave the streets within the subdivision, which changed the drainage of water in a manner that substantially and unlawfully burdened the petitioners' property. The petitioners claimed that STPG then approved another public works project to widen Dove Park Road in order to handle more drainage water, despite knowing that the project would substantially increase the drainage of water onto the petitioners' property. Based upon the foregoing, the petitioners sought damages, permanent injunctive relief, mandamus relief, and a temporary restraining order and preliminary injunction prohibiting STPG from beginning or continuing work on the Dove Park Road widening project.

         The petitioners removed their request for mandamus relief from the underlying suit and the trial court denied the petitioners' request for a temporary restraining order. The issue of the preliminary injunction on the road widening project proceeded before the trial court for a hearing on March 27, 2015. In open court, on April 1, 2015, the trial court assigned oral reasons for judgment in favor of STPG. On April 20, 2015, the trial court signed a judgment in accordance with its oral ruling, denying the preliminary injunction and reserving judgment on all other matters for later determination. The trial court's judgment on the preliminary injunction was lodged as the subject of the companion appeal under docket no. 2016 CA 0197.

         Relevant for purposes of this appeal, before the trial court signed the judgment on the preliminary injunction, an employee of STPG, Irma Russell, anonymously received a sealed envelope in her mailbox. The envelope was labeled with the name of Ms. Stevens, one of the petitioners herein. Ms. Russell was acquainted with Ms. Stevens and delivered the sealed envelope to her. Ms. Stevens discovered that the envelope contained an electronic data storage device known as a "flash drive." The flash drive contained digital copies of various documents associated with the property, drainage, and the public works project at issue in this suit.

          Thereafter, according to the minute entry for April 1, 2015, counsel for the petitioners made several statements to the trial court regarding new witnesses and documents relevant to the issue of the preliminary injunction; additionally, around this same time, the petitioners attempted to file a post-trial memorandum on the issue of the preliminary injunction. The petitioners attached copies of three documents from the flash drive to the post-trial memorandum. The three documents, which are identified on appeal as "Exhibits 28, 29, and 30, " had not been produced by STPG through discovery or public records requests and had not been entered into evidence during the trial on the preliminary injunction.

         On April 14, 2015, STPG submitted interrogatories and requests for production of documents to the petitioners regarding the source and scope of their acquisition of Exhibits 28, 29, and 30. The petitioners objected to the written discovery request. STPG responsively filed a motion to compel discovery. STPG sought to compel a response to - and the production of documents identified in response to - the following three interrogatories:

INTERROGATORY NO. 16: Please describe in detail how you came to possess Exhibit 28. Your response should state the date you first received Exhibit 28, and identify: each person providing you with Exhibit 28, all documents associated with your receipt of Exhibit 28 and all communications relating in any manner to your acquisition of Exhibit 28.
INTERROGATORY NO. 17: Please describe in detail how you came to possess Exhibit 29. Your response should state the date you first received Exhibit 29, and identify: each person providing you with Exhibit 29, all documents associated with your receipt of Exhibit 29 and all communications relating in any manner to your acquisition of Exhibit 29.
INTERROGATORY NO. 18: Please describe in detail how you came to possess Exhibit 30. Your response should state the date you first received Exhibit 30, and identify: each person providing you with Exhibit 30, all documents associated with your receipt of Exhibit 30 and all communications relating in any manner to your acquisition of Exhibit 30.

         On June 15, 2015, the trial court held a hearing on STPG's motion to compel discovery. Following the conclusion of the hearing, on June 16, 2016, the trial court signed a written judgment on the motion to compel discovery. The trial court ordered the petitioners make a full and complete response, without further objection and within five business days, to the subject interrogatories and requests for production.

         On June 23, 2015, the petitioners answered the interrogatories. The petitioners stated that Exhibits 28, 29, and 30 were offered to Ms. Stevens as public records on or about March 27, 2015. The petitioners stated that Exhibits 28, 29, and 30 were offered to Ms. Stevens by Ms. Russell and that no substantive discussion took place at the time at which the documents were received. The petitioners did not provide any further explanation concerning their receipt of Exhibits 28, 29, and 30. The petitioners did not identify or turn over the flash drive or the other electronic data stored upon the flash drive. The answers were verified and signed by Ms. Stevens.

         On July 13, 2015, STPG deposed Ms. Stevens. Counsel for STPG questioned Ms. Stevens about her receipt of Exhibits 28, 29, and 30 and learned that Ms. Stevens had received additional documents that had not been produced by the petitioners in response to the court-ordered discovery. The following day, on July 14, 2015, counsel for the petitioners delivered a letter to the trial court along with the flash drive and all of the original electronic data stored upon the flash drive.

         On July 23, 2015, STPG filed a motion for protective order, contempt of court, and sanctions against the petitioners. STPG argued that it was entitled to a protective order because the flash drive contained a complete copy of its litigation file containing privileged attorney-client communications and attorney work product that was obtained without its authorization or consent. STPG further argued that the petitioners had been in possession of the flash drive and had failed to disclose their possession of the flash drive in violation of court-ordered discovery. STPG submitted that the petitioners should be sanctioned for their willful conduct under La. C.C.P. art 1471.

         On August 26, 2015, the trial court held a hearing on the motion for protective order, contempt of court, and sanctions. At the request of the petitioners, the trial court continued the issues of contempt and sanctions and limited the hearing to the issue of the protective order. The trial court heard arguments and accepted oral testimony regarding the acquisition, possession, and contents of the flash drive. On September 17, 2015, the trial court signed a written judgment granting the protective order, prohibiting the petitioners from viewing, possessing, using, sharing, or distributing any portion of the information contained upon the flash drive unless subsequently produced by STPG through discovery or public records requests; ordering the petitioners turn over all copies of the flash drive, identify all persons to which any information from the flash drive had been distributed, and deliver copies of any documents and attachments simultaneously to counsel for STPG; and decreeing that any documents produced by the petitioners be placed under seal.

         On October 30, 2015, the trial court held a hearing on the motion for protective order, contempt of court, and sanctions in order to consider whether the petitioners should be held in contempt of court and sanctioned. On December 4, 2015, the trial court entered reasons for judgment in favor of STPG, finding Ms. Stevens and her attorneys in contempt of court for failing to disclose their possession of the flash drive in violation of La. C.C.P. art. 1471(C). On January 21, 2016, the trial court signed a written judgment in accordance with its written reasons for judgment, finding Ms. Stevens and her attorneys in contempt of court, ordering that the protective order be made permanent, and ordering Ms. Stevens and her attorneys pay STPG the costs incurred in filing the motion for contempt as well as attorney fees in the sum of $2, 500.00.[1] The petitioners now appeal.

         ASSIGNMENTS OF ERROR

          The petitioners present the following assignments of error:

         1. The trial court erred in finding Ms. Stevens, and her attorneys, Louis R. Koemer, Jr., and James E. Blazek, in contempt.

         2. The trial court erred in permanently sealing the flash drive and its contents.

         DISCUSSION

         Motion to Convert Suspensive Appeal to Devolutive Appeal

         First, we consider the motion to convert the petitioners' suspensive appeal to a devolutive appeal filed by STPG with this court on May 5, 2016. STPG argued in its motion that the petitioners failed to satisfy the requirements set forth in La. C.C.P. art. 2123 to perfect a suspensive appeal and averred that the suspensive appeal should be converted to a devolutive appeal. On August 10, 2016, the motion to convert the suspensive appeal to a devolutive appeal was referred to the panel to which the merits of the appeal were assigned.

         In order to perfect a suspensive appeal, an appellant must file a petition for appeal and furnish security within the thirty-day delay allowed in La. C.C.P. art. 2123.[2] Clement v. Graves, 04-1831 (La.App. 1 Cir. 9/28/05), 924 So.2d 196, 200 (citing Wright v. Jefferson Roofing, Inc., 93-1217 (La. 1/14/94), 630 So.2d 773, 775). The mandatory language of La. C.C.P. art. 2123 suggests that there is little room for exceptions; however, the courts have held that the failure of an appellant to timely furnish a suspensive appeal bond is not a jurisdictional defect. Antwine v. Winfield, 15-1850 (La.App. 1 Cir. 9/16/16), __ So.3d __, __. Thus, where an appellant fails to file the required bond, the suspensive appeal should be converted to a devolutive appeal, so long as the appellant has met the requirements for taking a devolutive appeal. Clement, 924 So.2d at 200.

         In this case, on January 21, 2016, the trial court signed a written judgment on the motion for protective order, contempt of court, and sanctions. On February 5, 2016, the petitioners filed a motion for suspensive appeal from the trial court's January 21, 2016 judgment. Thereafter, on February 12, 2016, the trial court signed the order granting the petitioners' motion for suspensive appeal "upon their posting security in the amount of $2, 500[.00]." There is no evidence in the record that the petitioners furnished the required security. However, no security is required for a devolutive appeal, see La. C.C.P. art. 2121(A), and the petitioners otherwise fulfilled the requirements for taking a devolutive appeal. Therefore, we will ...


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