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Collins v. State

Court of Appeals of Louisiana, First Circuit

April 28, 2017

DAN S. COLLINS AND DAN S. COLLINS, CPL AND ASSOCIATES, INC.
v.
STATE OF LOUISIANA, THROUGH DEPARTMENT OF NATURAL RESOURCES, ROBERT BENOIT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT DIRECTOR ATCHAFALAYA BASIN PROGRAM, LOUISIANA DEPARTMENT OF NATURAL RESOURCES

         APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER 592, 154 HONORABLE WILSON E. FIELDS, JUDGE

          Jill L. Craft Crystal G. Bounds Attorneys for Plaintiff/ Appellee Dan S. Collins and Dan S. Collins, CPL and Associates, Inc.

          Jeff Landry Stephen J. Oats Robin J. Magee Patrick B. McIntire Attorneys for Defendant/ Appellant State of Louisiana, through the Department of Natural Resources

          BEFORE: PETTIGREW, McDONALD, AND CALLOWAY, [*] JJ.

          McDonald, J.

         This is an appeal from a jury verdict and a district court judgment finding that plaintiffs were employees of the State engaged in an activity protected by La. R.S. 30:2027 (the Louisiana Environmental Whistleblower Statute), that plaintiffs suffered an adverse action that occurred as a result of complaints by the plaintiffs of environmental violations, that a defendant, the Louisiana Department of Natural Resources (DNR) was liable to the plaintiffs for violating La. R.S. 30:2027, and awarding plaintiffs damages. After review, finding that the plaintiffs were not employees pursuant to La. R.S. 30:2027, we reverse the jury verdict and the district court judgment and render judgment in favor of DNR, dismissing plaintiffs' claims against it under La. R.S. 30:2027.[1]

         FACTS AND PROCEDURAL HISTORY

         From 1997 to 2010, Dan S. Collins (a certified professional landman) and Dan S. Collins, CPL and Associates, Inc. (collectively plaintiffs or Collins) provided consulting services for land, title, and environmental research for DNR, particularly the Atchafalaya Basin Program and the Coastal Protection and Restoration Program. Robert Benoit served as Assistant Director of the Atchafalaya Basin Program.

         Starting in 2007, Mr. Collins discovered what he believed were violations of environmental laws, rules, and regulations pertaining to the dredged water quality project known as the Bayou Postillion Water Quality Project and the Big Bayou Pigeon Water Quality Project. Mr. Collins reported his findings to DNR, Mr. Benoit, and Scott Angelle, Secretary of DNR. Both projects were conducted by the Atchafalaya Basin Program within the basin to improve water quality for fishermen and crawfishermen. Mr. Collins believed that he discovered the real purpose of the projects was oil and gas exploration for the use and benefit of adjacent landowners.

         Collins' contract with DNR for 2009 ended, and it was not renewed for 2010. Collins filed suit on June 29, 2010, naming as defendants the State of Louisiana, through DNR, and Mr. Benoit, individually and in his capacity as Assistant Director of the Atchafalaya Basin Program at DNR, asserting that "defendants have refused to employ Petitioners and denied Petitioners the ability to continue employment with defendant DNR on account of their whistle-blowing activities regarding the violations of Federal and State laws, rules, and regulations." Collins asserted that DNR violated La. R.S. 30:2027 and La. R.S. 23:967 (the Louisiana Whistleblower Statute) and that DNR and Mr. Benoit violated La. R.S. 42:1169 (the Louisiana Code of Governmental Ethics Whistleblower Statute). Collins prayed for judgment in their favor including punitive damages, triple damages as allowed by law, and attorney fees, as well as all other relief to which they were entitled, including declaratory and injunctive relief.

         Defendants filed peremptory exceptions raising the objections of no cause of action as to the claims raised pursuant to La. R.S. 23:967, La. R.S. 30:2027, and La. R.S. 42:1169, which were sustained by the district court, and the plaintiffs' claims pursuant to those statutes were dismissed. Collins v. State ex rel. Dep't of Nat. Res., 2012-1031 (La.App. 1 Cir. 5/30/13), 118 So.3d 43, 45. On appeal, this court affirmed the district court ruling that plaintiffs had failed to state a cause of action pursuant to La. R.S. 42:1169 and La. R.S. 23:967. Collins, 118 So.3d at 52. This court reversed the district court ruling that the plaintiffs had failed to state a cause of action pursuant to La. R.S. 30:2027, noting that plaintiffs alleged employee status, that the allegations had to be taken in the light most favorable to the plaintiffs, and that non-renewal of an alleged employment agreement could state a cause of action for retaliation, assuming the plaintiffs met the rest of the statutory requirements.[2] Collins, 118 So.3d at 48-51. The La. R.S. 30:2027 claims were remanded to the district court. Collins, 118 So.3d at 52.

         Thereafter, DNR filed a motion for summary judgment on February 3, 2014, based upon plaintiffs' lack of employee status, failure to pursue administrative remedies, prescription, and lack of evidence of retaliation. The district court denied the motion for summary judgment in open court on May 5, 2014, and signed a judgment in conformity therewith on June 10, 2014.

         DNR filed an application for supervisory writs with this court, which was denied. Dan Collins v. State through Dep't of Nat. Res., 2014-0819 (La.App. 1 Cir. 8/11/14) (unpublished writ action). DNR thereafter filed an application for supervisory and/or remedial writs with the Louisiana Supreme Court, which was also denied. Dan Collins v. State through Dep't of Nat. Res., 2014-1898 (La. 12/8/14), 153 So.3d 442.

         The case proceeded to trial on the La. R.S. 30:2027 environmental whistleblower claims. A jury trial was held from December 8 to 11, 2015. The jury returned a verdict in favor of the plaintiffs and against DNR, finding that plaintiffs were employees of DNR who reported what they believed to be environmental violations, and as a result of their reports, they suffered retaliation from DNR. The jury awarded plaintiffs $250, 000.00 in lost wages by verdict form dated December 11, 2015.

         The district court thereafter signed a judgment on January 26, 2016, in favor of plaintiffs and against DNR, awarding plaintiffs $750, 000.00 in damages, which included $250, 000.00 for loss of earnings and/or loss of anticipated wages, plus legal interest on that amount from date of judicial demand until paid, and $500, 000.00 (to provide triple damages as provided for in La. R.S. 30:2027(B)(1)), plus legal interest on that amount from date of judgment until paid. DNR filed a motion for judgment notwithstanding the verdict (JNOV) and a motion for new trial, which were denied in open court on April 18, 2016. A judgment to that effect was signed on May 26, 2016. DNR appealed the jury verdict form and the January 26, 2016 judgment.

         PENDING MOTION

         DNR filed a motion to strike statements made on page 25 and pages 29 through 30 of plaintiffs' appellee brief, asserting that these statements are contrary to the requirements of Rule 3.3(a)(1) of the Rules of Professional Conduct, which states that lawyers shall not "knowingly make a false statement of fact ... to a tribunal." DNR asserts that these portions of plaintiffs' brief contain testimony which plaintiffs attributed to Toni Debossier (a former employee of DNR), which serves to give the false impression that Ms. Debossier was relieved of her position or transferred due to complaints about Bayou Postillion. DNR asserts that the statements attributed to Ms. Debossier by plaintiffs were, in fact, made by Mr. Collins and that in her deposition Ms. Debossier explained that Secretary Angelle hired her to work for DNR after she left the Department of Agriculture and Forestry, that Secretary Angelle asked her to look into the project to see if any laws had been broken, and that she found no violations of law.

         In opposition to the motion to strike, plaintiffs assert that DNR's accusations are false and that the jury did, in fact, hear testimony that Ms. Debossier was a DNR employee, that she informed Mr. Collins that she had been terminated because of information that she brought forward, and that she was told she would be transferred. Plaintiffs maintain that DNR failed to take advantage of its full and fair opportunity to cross-examine Mr. Collins' cited testimony ...


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