FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 63-277, DIVISION
"A" Honorable Kevin D. Conner, Judge
A. Barbee William S. Culver, Jr. COUNSEL FOR
Francis J. Lobrano David F. Waguespack CARVER DARDEN KORETZKY
TESSIER FINN BLOSSMAN & AREAUX, COUNSEL FOR
William A. Roe COUNSEL FOR DEFENDANT/APPELLEE/CUZAN SERVICES,
composed of Chief Judge James F. McKay, III, Judge Roland L.
Belsome, Judge Paula A. Brown
L. BELSOME JUDGE.
appeal is taken from the trial court's rulings that
resulted in the dismissal of the Plaquemines Parish
Government's lawsuit against the defendants. For the
reasons that follow, we affirm.
October 25, 2016, the Plaquemines Parish Government sued W.
Keith Hinkley, Westbank Roofing Co., Inc., West Bank Roofing
and Sheet Metal Supply Co., Inc. and Louisiana Roofing &
Sheet Metal, Inc. (collectively referred to as "Hinkley
Defendants"). Cuzan Services, LLC ("Cuzan")
was also named as a defendant in the lawsuit. Mr. Hinkley
served on the Plaquemines Parish Council from January 1, 2007
to December 31, 2014. In the petition, it is alleged that Mr.
Hinkley acted in concert with the other defendants to perform
roofing services for the PPG in violation of the PPG Home
Rule Charter. Specific projects and monetary amounts were
listed in the petition.
after filing an Answer which denied the allegations in the
petition, the Hinkley Defendants propounded discovery on the
PPG. In that discovery, the Hinkley Defendants sought copies
of any checks that had been written to any defendants on
those alleged projects during the time that Mr. Hinkley was
in office. The PPG did not respond causing the Hinkley
Defendants to issue a Subpoena Duces Tecum to Tommy Serpas,
Finance Director for the PPG, seeking the same documents.
Serpas' response to the subpoena he confirmed that the
PPG had no documents meeting the criteria. Further, Mr.
Hinkley provided an affidavit and attachments that
established that all but one of the projects listed in the
petition were performed by one or more of the Hinkley
Defendants prior to Mr. Hinkley taking office. The remaining
project was a roof repair done after January 1, 2007, in
fulfillment of a warranty obligation, and there was no
April of 2017, the Hinkley Defendants filed a motion for
summary judgment. The PPG filed an opposition but also sought
a continuance to conduct additional discovery. During this
time, the PPG served Cuzan with the petition. Cuzan answered
the petition denying the allegations. Subsequently, the PPG
issued subpoenas to two separate banks where Cuzan maintained
accounts. The subpoenas sought copies of all checks and bank
statements of Cuzan. Cuzan objected to the subpoenas and the
trial court eventually ordered the production of bank records
from 2005-2014 to be produced for in camera
inspection. Following the order from the trial court, the
banks submitted the documents.
Cuzan filed a motion for summary judgment and motion for
sanctions. On April 16, 2018, the trial court heard the
PPG's motion for access to financial records, the Hinkley
Defendants' motion for summary judgment and sanctions,
and Cuzan's motion for summary judgment and sanctions.
The trial court denied the motion for access to financial
records. That ruling was based upon the trial
court's review of the financial records. The trial court
informed the parties that there were three checks that were
made out to cash. It was determined that two of the checks
were outside of the time that Mr. Hinkley was on the council
and therefore of no relevance to this litigation. As for the
third check in the amount of $10, 000, Cuzan supplied the
trial court with an affidavit stating that it was used for
business and operating expenses. Then the trial court stated
that it found nothing in the financial records to connect the
Hinkley Defendants to Cuzan. Further, the PPG had no evidence
linking the Hinkley Defendants to the checks or to Cuzan.
listening to the parties' arguments on the summary
judgments and also allowing testimony regarding the motions
for sanctions, the trial court ruled from the bench granting
the motions for summary judgment as well as the motions for
sanctions. This appeal followed.
appeal, the PPG maintains that the trial court's ruling
to review Cuzan's financial records in camera
without allowing the PPG access to the records was an error.
The PPG also contends that the granting of the motions for
summary judgment were premature due to a lack of
discovery. The Hinkley Defendants and Cuzan filed an
answer to the appeal seeking damages, including, but not
limited to attorney's fees, against the PPG for the
filing of a frivolous appeal.
argues that the trial court erred when ruling on the
discovery of Cuzan's financial records in two ways.
First, the trial court determined that the PPG would not have
access to the records unless the trial court found the
records were relevant to the litigation. Then, once the trial
court found a check made out to cash, the trial court
accepted Cuzan's explanation as to the purpose of the
Court reviews evidentiary rulings under an abuse of
discretion standard. "A trial court has broad discretion
in handling discovery matters and an appellate court should
not upset such a ruling absent and abuse of
Sercovich v. Sercovich, this Court discussed a
party's right to discovery, particularly financial
records. Sercovich was a divorce
proceeding. Prior to the divorce, Mr. Sercovich had sold two
businesses to his sons from a previous marriage. Those
businesses' financial records were sought by Ms.
Sercovich who thought they were relevant to Mr.
Sercovich's income and the determination of spousal
support. Both businesses filed a motion to quash the
subpoena. Those motions were denied by the trial court and an
appeal was taken.
Court initiated its analysis of the issue by referring to
statutes on discovery and evidence. Louisiana Code of Civil
Procedure states that "[p]arties may obtain discovery
regarding any matter, not privileged, which is relevant to
the subject matter involved in the pending
action." Further, the Louisiana Code of Evidence
provides that relevant evidence is "evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the
evidence."Working within that basic framework this
Court recognized the confidential and sensitive nature of
financial records, while also acknowledging Ms.
Sercovich's right to discovery. Ultimately, this Court
balanced those issues by ordering that the records be
examined for relevance by the trial court through an in
in this case, the trial court voiced concerns about the broad
scope of the discovery request. The request sought
"all" of Cuzan's bank records from two banks
for a period of approximately nine years. The trial court
reasoned that the records are private and sensitive and that
an in camera inspection would protect the PPG's
right to discovery and Cuzan's right to privacy. The
purpose of the in camera inspection was to find
checks made out to any of the Hinkley Defendants during the
relevant time period. None were found. The trial court
clearly stated that each of the documents had been reviewed
and it did not find any connection between Cuzan and the
Hinkley Defendants within those documents. Accordingly, the
financial records were found to be irrelevant to the