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Plaquemines Parish Government v. Hinkley

Court of Appeals of Louisiana, Fourth Circuit

December 5, 2018


          APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 63-277, DIVISION "A" Honorable Kevin D. Conner, Judge

          Peter A. Barbee William S. Culver, Jr. COUNSEL FOR PLAINTIFF/APPELLANT



          Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Paula A. Brown


         This 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.

         On 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").[1] Cuzan Services, LLC ("Cuzan") was also named as a defendant in the lawsuit.[2] 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.[3]

         Shortly 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.

         In Mr. 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 monetary compensation.

         In 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.

         Later, 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.[4] 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.

         After 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.

         On 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.[5] 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.

         Financial Records

         PPG 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 check.[6]

         This Court reviews evidentiary rulings under an abuse of discretion standard.[7] "A trial court has broad discretion in handling discovery matters and an appellate court should not upset such a ruling absent and abuse of discretion."[8]

         In Sercovich v. Sercovich, this Court discussed a party's right to discovery, particularly financial records.[9] 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.[10]

         This 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."[11] 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."[12]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 camera inspection.[13]

         Similarly, 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 ...

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