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City of Alexandria v. Dixon

Court of Appeals of Louisiana, Third Circuit

September 20, 2017

CITY OF ALEXANDRIA
v.
KENDALL DIXON

         ON SUPERVISORY WRIT FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 251, 514 HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

          Eugene P. Cicardo, Jr. Joseph M. Reynolds, Philip G. Hunter Hunter & Beck COUNSEL FOR DEFENDANT/APPLICANT: Kendall Dixon

          Michael J. O'Shee Steven M. Oxenhandler Gold, Weems, Bruser, Sues & Rundell COUNSEL FOR PLAINTIFF/RESPONDENT: City of Alexandria

          Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret, Judges WRIT GRANTED AND MADE PEREMPTORY.

          CANDYCE G. PERRET JUDGE

         The Relator, Kendall Dixon, seeks supervisory review of a trial court judgment that denied multiple exceptions and a motion to strike, and which reversed the decision issued by the Alexandria Municipal Fire and Police Civil Service Board (the Board) finding that Mr. Dixon was wrongfully terminated by the Respondent, the City of Alexandria (the City). For the following reasons, we hereby grant the writ to reverse that part of the trial court's judgment that reversed the Board and consequently discharged Mr. Dixon from employment with the City.

         FACTS AND PROCEDURAL HISTORY

         In 2014, Mr. Dixon was terminated from employment with the Alexandria Fire Department for testing positive on two breath alcohol tests.[1] Mr. Dixon appealed his termination to the Board, arguing that the device used was not an approved testing device and that the results from the test should be excluded. After a hearing, the Board agreed with Mr. Dixon and excluded the allegedly deficient breath alcohol test results and reinstated his employment with the City. However, the trial court reversed the Board's decision, finding the Board should have considered the breath alcohol test results. This court overturned the trial court, and reinstated Mr. Dixon's employment with the City. In City of Alexandria v. Dixon, 15-1718 (La. 5/3/16), 196 So.3d 592, the supreme court issued an opinion, reversing this court's decision disallowing consideration of the test results, and stated as follows:

Although we also find the City did not adhere to its own Substance Abuse Policy and thus reverse that finding by the trial court, we nevertheless determine that, based on Pullin [v. Louisiana State Racing Comm'n, 484 So.2d 105 (La.1986)], the test results are admissible subject to whatever the weight the Board may choose to assign to the test results.

196 So.3d at 601 (emphasis added).

         On June 22, 2016, in compliance with the supreme court's instruction, the Board again considered Mr. Dixon's appeal of his termination, and again concluded that the City improperly terminated him. Accordingly, the Board reinstated Mr. Dixon to his position with the Alexandria Fire Department. Thereafter, the City filed a second appeal to the trial court, while Mr. Dixon filed the following exceptions and motion: (1) a Motion to Strike and Randomly Allot; (2) the Peremptory Exception of Prescription (alternatively of Peremption); (3) the Peremptory Exception of Nonjoinder of a Party; (4) the Declinatory Exception of Insufficiency of Service of Process; (5) the Declinatory Exception of Lack of Jurisdiction Over the Person; and (6) the Peremptory Exception of No Cause of Action.

         After a two-day hearing, the trial court rendered a judgment whereby it denied all of Mr. Dixon's exceptions and motion, and reversed the Board's decision to reinstate Mr. Dixon to his position with the City. At the conclusion of the hearing, on December 16, 2016, the trial court stated, in pertinent part:

Number one, the results of a Phoenix 6.0 are just as accurate as the Intoxilyzer 5000 and 9000 based upon the evidence that I heard. The variance of a Lifeloc (which manufactures the Phoenix 6.0 breathalyzer) is point zero, zero, five and the Intoxilyzer 5000/9000 is a point zero, one, zero. That's the margin of error.
Number three (sic), the Phoenix 6.0 is a good instrument for testing, . . . breath alcohol.
Number four, the Phoenix 6.0 was in proper working order, was certified and the technician was certified to operate the machine. I find nothing about the way that the cus -- the test was conducted that was ...

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