CONERY, Judge.
In response to an order from this court, plaintiff, Kevin W. Jones, Jr., was required to file an amended appeal brief. In response to the amended appeal brief, the Town of Woodworth and Officer David Sikes (Defendants) then filed a Peremptory Exception of No Cause of Action seeking to dismiss the remaining issues on appeal, the alleged wrongful towing claim and attendant damages. For the following reasons, we deny the Defendants' Peremptory Exception of No Cause of Action and affirm the trial court's judgment granting the Defendants' Motion for Involuntary Dismissal with prejudice of all Mr. Jones' remaining claims and demands against the Defendants at his cost.
In December 2009, Kevin Jones was travelling in his vehicle through the Town of Woodworth when he stopped at a convenience store. Officer Sikes, working for the Town's police department, decided to run a random license plate check on the vehicle and learned that its owner, Kevin Jones, had a suspended driver's license. Mr. Jones then drove his vehicle from the store's parking lot onto Highway 165 northbound. Officer Sikes at first passed up Mr. Jones' vehicle, and upon making an identification of Mr. Jones based on the driver's license photo he had as a result of the license check he had just run, Officer Sikes stopped Mr. Jones' vehicle on the northbound shoulder of Highway 165 just inside the city limits of the Town of Woodworth. At the time of the traffic stop, Mr. Jones' vehicle was parked just two feet off the fog-line, with Officer Sikes' patrol vehicle parked several feet behind with the emergency flashers on.
Upon confirming that the driver of the vehicle was in fact Kevin Jones and that Mr. Jones' license had been suspended, Officer Sikes issued a citation to Mr. Jones for driving with a suspended license, unlawful use of a driver's license, no proof of insurance, and improper muffler/duel pipes. Mr. Jones was prevented from driving his vehicle from the scene due to his license suspension and no proof of insurance. Officer Sikes indicated on the tickets that traffic on the roadway was "MEDIUM." Two passengers in the vehicle were also prohibited from driving as neither possessed a valid driver's license. Because none of the occupants were legally able to drive the Jones vehicle from the scene of the traffic stop, Officer Sikes
Mr. Jones filed a civil suit against the Town of Woodworth and Officer Sikes claiming that the initial license plate check on his vehicle while it was properly parked at a convenience store was an unconstitutional search and an unconstitutional invasion of his privacy rights. Further, after the stop, Mr. Jones claimed that Officer Sikes should have allowed Mr. Jones' brother, who lived several miles away in Alexandria, Louisiana, to come to the scene and take possession of the Jones' vehicle, instead of having the vehicle towed. He claimed damages for wrongful seizure and towing of his vehicle.
The Defendants had initially filed a Motion for Summary Judgment, which the trial court had granted, finding that the random license plate check while Mr. Jones was parked at the convenience store was permissible. The trial court ruled that Mr. Jones was properly cited for driving without a valid driver's license, and his vehicle was properly towed. An initial appeal in this case was heard by a panel of this court in Jones v. Town of Woodworth, 12-1349 (La.App. 3 Cir. 12/26/13), 132 So.3d 422 (Jones I). The issue decided was whether an individual has a legitimate privacy interest in his or her license plate such that a random license plate check constitutes an unconstitutional search or seizure within the meaning of the Fourth Amendment and the Louisiana Constitution Article 1, § 5.
The Jones I panel affirmed the Summary Judgment as to the random check of the license plate, but found that genuine issues of material fact precluded complete affirmation of the trial court's ruling granting Summary Judgment on the unlawful towing issue and the alleged damages claimed by Mr. Jones from the loss of his vehicle due to his alleged inability to pay the tickets, the towing and accrued storage fees, as well as damages for his alleged loss of his job that left him unable to provide for his family. See Jones I.
The Jones I panel determined that the affidavit in support of the Defendants' Motion for Summary Judgment failed to disclose any facts regarding the location of the vehicle in relation to the highway, or whether officer safety or traffic safety issues necessitated the immediate removal of the Jones' vehicle. More specifically, the Jones I panel found that the affidavit of Officer Sikes submitted by the Defendants in support of its motion was "silent regarding his decision to have Jones' vehicle
On remand, the trial court heard several Motions in Limine wherein the Defendants attempted to narrow the remaining issues before the trial court. The trial court decided that the only issue remaining to be heard at the trial on March 3, 2015, was Mr. Jones' claim of wrongful towing and attendant damages. In its written judgment on the Motions in Limine, dated March 2, 2015, the trial court stated:
The trial on the remaining issues of wrongful towing and damages proceeded as scheduled on March 3, 2015. The testimony of Mr. Jones at trial reflects that all charges stemming from the tickets issued by Officer Sikes were waived, based on a hardship determination by the Mayor, who also functions as the Magistrate of the Town of Woodworth.
As to the wrongful seizure of the vehicle issue, La.R.S.32:1735.1(A) provides, "Any law enforcement agency may place a hold on a vehicle stored at a licensed storage facility for up to fourteen days." The hold on Mr. Jones' vehicle was released.
Louisiana Revised Statutes 32:1735.1(B) provides that once the law enforcement hold is lifted "the storage facility shall release the vehicle to its owner upon payment by such owner of all towing and storage charges to the storage facility[.]" Mr. Jones was unable to retrieve his vehicle from the towing company, despite having a licensed driver available to drive the vehicle, due to his refusal and/or inability to pay the towing and storage fees. The towing company was not a party to this litigation and has no connection that appears in this record to the Town of Woodworth or Officer Sikes. At trial, Mr. Jones failed to present any evidence on the issue of whether his vehicle had been wrongfully held, and there was no factual dispute that Mr. Jones failed to pay the towing and storage fees.
As to the wrongful towing issue, Mr. Jones presented evidence at trial that he asked Officer Sikes that he be allowed to call his brother and sister-in-law, who were shopping in Alexandria, Louisiana, to come to the scene and take possession of his vehicle, thus obviating the necessity for towing. Officer Sikes was called under cross examination and testified as to his reasons why he did not agree to Mr. Jones' proposal and why he called the towing company to tow the vehicle.
At the close of Mr. Jones' case in chief, the Defendants moved for Involuntary Dismissal pursuant to La.Code Civ.P art. 1672(B). The trial court granted the Defendants' Motion for Involuntary Dismissal in oral reasons stated on the record and memorialized in the formal judgment signed March 11, 2015. The trial court found, "The Court, being of the opinion that, after giving all allowable inference to Plaintiff, no evidence was presented to establish
Mr. Jones filed a timely appeal of the trial court's judgment, and in response the Defendants filed a Motion to Strike Appellant's Brief and Dismiss Appeal on the basis Mr. Jones' brief to this court failed to conform to the requirements of Uniform Rules—Courts of Appeal, Rules 2-12.1-2-12.6. The Defendants' Motion to Strike Appellant's Brief and Dismiss Appeal was granted on July 13, 2015, and this court ordered Mr. Jones to file an amended appeal brief no later than August 14, 2015. As ordered by this court, Mr. Jones timely filed an amended appeal brief.
In response to Mr. Jones' amended appeal brief, and in addition to the Defendants' Original Brief for Appellees Town of Woodworth and Officer David Sikes, the Defendants filed a Peremptory Exception of No Cause of Action and a brief in support thereof. The Defendants' exception sought to dismiss Mr. Jones' remaining claim of wrongful towing and attendant damages on the basis that in his amended appeal brief, Mr. Jones admitted that Officer Sikes had the discretion to make the determination of whether or not to tow the Jones' vehicle or allow third parties to come to the scene, thus vitiating his remaining claim of wrongful towing.
On September 10, 2015, this court denied Mr. Jones' out of time request for oral argument and also referred to the merits without oral argument the Defendants' Peremptory Exception of No Cause of Action.
Mr. Jones asserts the following errors on appeal:
The Defendants correctly state that La. Code Civ.P. art. 2163 allows this court to rule on the Defendants' Peremptory Exception of No Cause of Action filed for the first time in this court. Louisiana Code of Civil Procedure Article 2163 provides, in pertinent part, "The appellate court
It is within this court's discretion to defer ruling on the Defendants' Peremptory Exception of No Cause of Action and proceed with its review of Mr. Jones' appeal. The trial court's ruling came after hearing all evidence introduced by Mr. Jones. Based on the procedural posture of this case, this court exercises its discretion to rule on the merits of the appeal and denies the Defendants' Peremptory Exception of No Cause of Action.
At the close of Mr. Jones' case in chief, the trial court granted the Defendants' Motion for Involuntary Dismissal pursuant to La.Code Civ.P. art. 1672(B), which provides, in pertinent part:
(Emphasis added.)
Unlike the procedure in a Motion for Summary Judgment, in a Motion for Involuntary Dismissal, the trial court hears all of the plaintiff's evidence and makes factual findings. After applying the law to the facts presented by the plaintiff, the court then makes a ruling that the plaintiff has shown "no right to relief." See La.Code Civ.P. art. 1672(B).
As reiterated in Biagas v. St. Landry Parish Sheriff Office, 13-642 (La.App. 3 Cir. 12/11/13), 132 So.3d 971, writ denied, 14-73 (La. 3/14/14), 137 So.3d 15, the trial court's determination to grant a Motion for Involuntary Dismissal is subject to a manifest standard of review. In Biagas, 132 So.3d at 974, the court stated:
We, therefore, review the trial court's ruling on the Motion for Involuntary Dismissal pursuant to La.Code Civ.P. art. 1672(B) using the manifest error standard.
Through counsel, Mr. Jones continues to attempt to argue in brief that the initial stop of his vehicle was unconstitutional. As we indicated earlier in this opinion, that issue was decided in Jones I and is now the "law of the case."
In Arceneaux v. Amstar Corp., 10-2329, p. 14 (La.7/1/11), 66 So.3d 438, 448, the supreme court succinctly discussed the policy and principles applicable to the law of the case doctrine and stated:
As previously indicated, the trial court clearly stated prior to trial on March 3, 2015, that the only issue remaining before it was the wrongful towing issue and attendant damages. Finding the prior ruling of this court in Jones I to be a final judgment, we will apply the law of the case doctrine to all claims of Mr. Jones dismissed on Summary Judgment in Jones I. Thus, we will limit our review to whether the trial court was manifestly erroneous in its decision to grant the Motion for Involuntary Dismissal on Mr. Jones' sole remaining claim of wrongful towing and alleged attendant damages. See Koonce v. Dousay, 06-1498 (La.App. 3 Cir. 3/7/07), 952 So.2d 893. We have previously chosen to deny the Defendants' Peremptory Exception of No Cause of Action, choosing instead to rule on the merits of the appeal as factual issues were presented at the trial.
Mr. Jones claims the trial court "erred in ruling that Officer Sikes did not owe a duty to Jones to allow his brother to come to the scene of the stop and pick up his vehicle." The trial court, in both its oral reasons for ruling and in the formal judgment of March 11, 2015, found that Officer Sikes had no "legal duty to call or allow any third parties to come to the scene of this incident involving KEVIN W. JONES, SR."
The Town of Woodworth and Officer Sikes had also plead in their "Answer To Plaintiff's Petition for Damages," the affirmative defense of qualified immunity pursuant to La.R.S. 9:2798.1, La.R.S. 9:2800-2800.52, and La.R.S. 9:2792.4. However, we need not determine the qualified immunity of the Defendants and choose instead to base our analysis on the issue of whether the trial court committed manifest error in granting the Defendants' Motion for Involuntary Dismissal on the basis that no legal duty was owed to Mr. Jones by Officer Sikes based on the evidence introduced by the plaintiff.
We were faced with a similar issue in Dupre & Son Floor Covering, Inc. v. City of Iota, 09-1183 (La.App. 3 Cir. 5/5/10), 36 So.3d 1117. That case involved the police officers' alleged failure to impound a vehicle. In Dupre, a statutory duty was created pursuant to La.R.S. 32:863.1(A)(1).
In this case, Officer Sikes had issued a citation to Mr. Jones for failure to furnish proper proof of insurance. The statute mandates that he impound the vehicle in such a circumstance, and he had a legal duty to do so. Had he failed to order the vehicle towed and impounded pursuant to the statute, he and the Town of Woodworth could have been sued for breach of that statutory duty, as in Dupre. The statute at issue mandates that upon issuing a citation for no proper proof of insurance "the motor vehicle shall be impounded." La.R.S.32:863.1(C)(1)(a) Officer Sikes followed his duty and certainly did not breach it.
In Rando v. Anco Insulations, Inc. 08-1163, pp. 26-27 (La. 5/22/09), 16 So.3d 1065, 1086, the five elements applicable to a duty/risk analysis were delineated by the supreme court:
Mr. Jones claims the vehicle was insured, but that the insurance was in his mother's name even though the vehicle was registered in his name. It could be argued that under the circumstances,
Moreover, the question of a duty owed by Officer Sikes to Mr. Jones to allow third parties unknown to the officer to come to the scene of the traffic stop was seemingly answered by a panel of this court in the case of Simon v. Theriot, 13-562 (La.App. 3 Cir. 12/11/13), 127 So.3d 1057. Simon, on behalf of her minor children, filed a petition for damages against the sheriff and his deputies (Defendants) when her ex-husband committed suicide in his vehicle after it was stopped and surrounded by deputies. The deputies were responding to a complaint filed by the decedent's then girlfriend and her mother. Simon claimed the Defendants were negligent in failing to allow third parties to come to the scene of the parked vehicle to assist in the negotiations and were thus responsible for her ex-husband's death.
The panel in Simon affirmed the trial court's ruling dismissing Simon's claims against the Defendants for failure to state a cause of action, which does not allow the presentation of evidence, but is determined solely on the facts as alleged in the petition. See La.Code Civ.P. art. 931. The panel in Simon, 127 So.3d at 1061, stated in affirming the trial court:
In this case, Mr. Jones was afforded the opportunity to present all of his evidence at a bench trial and still was unable to provide the court with any facts, jurisprudential, or statutory authority sufficient to establish that a duty was owed by Officer Sikes to Mr. Jones to call a third party to come to the scene of this traffic stop to take possession of his vehicle. Mr. Jones was unable to provide the factual basis necessary to establish a duty "arising from general principles of fault." Rando, 16 So.3d at 1086.
The supreme court in Hardy v. Bowie, 99-2821, p. 12 (La.9/8/99), 744 So.2d 606, 614, discussed the duty owed by a police officer under the duty/risk analysis and stated:
Therefore, Officer Sikes would be "held to choosing a course of action which is reasonable under the circumstances." Id. Officer Sikes executed the traffic stop on Mr. Jones' vehicle after confirming that he was driving with a suspended license, and, according to a criminal records check he had ordered to ensure officer safety, Mr. Jones had a violent criminal history. After the stop, Officer Sikes further learned that the two passengers in Mr. Jones' vehicle also did not possess valid driver's licenses and were therefore unable to lawfully operate the Jones' vehicle. Additionally, Officer Sikes testified at trial that the Jones' vehicle was parked on the shoulder of the highway, just two feet off the fog-line, and that his patrol car was parked behind Mr. Jones' vehicle with the emergency lights on. Officer Sikes noted that he could not leave Mr. Jones' vehicle unattended at the scene of the stop without endangering public safety.
It is undisputed that Mr. Jones did request that he be allowed to remain with the vehicle while his brother and sister-in-law drove from Alexandria, Louisiana, to the scene of the traffic stop and retrieve the vehicle. Officer Sikes testified that he has over twenty years' experience making traffic stops, including accidents involving vehicles parked on the shoulder of the road. He further testified that he did not allow Mr. Jones' brother to come to the scene because of his training, which prohibited allowing a non-neutral third party to be called to the scene based on concern for officer safety.
Additionally, Mr. Jones' brother was not the owner of the vehicle, and thus, there was a potential for further liability if there was a subsequent accident during his trip in the Jones' vehicle back to Alexandria, Louisiana. In addition, there was no valid proof of insurance. Further, the Jones' vehicle was parked close to the fog line. Officer Sikes could not safely stand by and wait for a third party unknown to him to come to the scene, nor could he leave the vehicle on the scene unattended by his unit, which had engaged emergency flashers to warn oncoming drivers.
Based on all the circumstances of the traffic stop, the trial court correctly determined that Officer Sikes acted reasonably under the circumstances in having the Jones' vehicle towed because of safety concerns both for the motoring public and for the officer. We further find that Officer Sikes had a legal obligation to do so based on his issuing a ticket for no proof of insurance, which triggered his legal obligation to have the vehicle towed pursuant to La.R.S. 32:863.1(C)(1)(a). In granting the Defendants' Motion for Involuntary Dismissal, the trial court considered the evidence presented by the plaintiff and found that Mr. Jones had "no right to relief." See La.Code Civ.P art. 1672(B).
After a thorough review of the record, we agree and find that the trial court's ruling was not manifestly erroneous. We affirm the trial court's judgment granting the Defendants' Motion for Involuntary Dismissal of Mr. Jones' sole remaining claim against the Town of Woodworth and Officer David Sikes with prejudice at his cost.
As we have affirmed the trial court's ruling that no duty was owed to Mr. Jones by Officer Sikes based on his only remaining claim of wrongful towing, we pretermit
For the foregoing reasons, the trial court's March 11, 2015 judgment dismissing the claims of Kevin W. Jones, Jr. against the Town of Woodworth and David Sikes is affirmed. The Town of Woodworth and David Sikes' Peremptory Exception of No Cause of Action is denied. All costs on appeal are assessed to Kevin W. Jones, Jr.
