Mr. David L. Wilson v. Ms. Krystal Howell

NOT FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2021 CA 1199

MR. DA YID L. WILSON

VERSUS

MS. KRYSTAL HOWELL, ET AL
MAY 1 9 2022:
Judgment Rendered: ------

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On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 690523

Honorable Donald T. Johnson, Judge Presiding

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David L. Wilson Pro Se for Plaintiff-Appellant,
St. Gabriel, LA David L. Wilson

Jeffrey K. Cody Attorneys for Defendant-Appellee,
John C. Conine, Jr. Doug Welborn, in his official capacity
John C. Walsh as Clerk of Court for East Baton Rouge
Baton Rouge, LA Parish

*****
BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.

HESTER,J.

In this mandamus action arising out of a public records request, plaintiff,

David L. Wilson, appeals a judgment sustaining the peremptory exception raising

the objection of no cause of action filed by defendant, Doug Welborn, in his official

capacity as Clerk of Court for East Baton Rouge Parish. For the reasons that follow,

we affirm in part and vacate in part.

FACTS AND PROCEDURAL HISTORY

David L. Wilson, an inmate incarcerated at Elayn Hunt Correctional Center,

instituted this suit by filing an Application for Writ of Mandamus (hereinafter

referred to as "Petition") on November 12, 2019, naming as defendants: Krystal

Howell, court reporter; Doug Welborn, in his official capacity as Clerk of Court for

East Baton Rouge Parish ("Clerk"); and Ann B. McCrory, judicial administrator for

the 19th Judicial District Court.

According to the allegations of the Petition, Mr. Wilson submitted a public

records request to Ms. Howell, dated March 24, 2019, seeking the tape recording of

trial proceedings previously held in his criminal case, identified as Case No. 03-00-

0682. Mr. Wilson indicated that he never received a response to this request.

Thereafter, Mr. Wilson submitted a separate public records request to the Clerk,

dated May 6, 2019, and admitted to having received a timely response to this request

from Deputy Clerk Donny Caldera. Answering on behalf of the Clerk, Mr. Caldera

informed Mr. Wilson that the tape recording was maintained by the court reporter

and that Mr. Wilson would need to direct the request for the tape recording to the

judicial administrator, Ms. McCrory.

In a letter to Ms. McCrory dated May 15, 2019, Mr. Wilson submitted another

public records request for the tape recording. Ms. McCrory responded to Mr. Wilson

in a letter dated May 28, 2019, denying Mr. Wilson's public records request on the

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basis that the Public Records Law, La. R.S. 44: 1, et seq., did not apply to the

requested tape recording, citing to La. R.S. 44:4(47)(a).

Mr. Wilson's Petition sought mandamus relief directing the Clerk, Ms.

McCrory, Ms. Howell, and any other former employee of the court "to cease from

withholding this 'tape recording' and to deliver the effects for the Office of the Clerk

of Court of the trial proceedings in its entirety" as well as costs and damages pursuant

to La. R.S. 44:35(E)(l ). 1 In response, the Clerk filed a peremptory exception raising

the objection of no cause of action.

The Clerk maintained that the Petition itself admits that the Clerk timely

responded to the public records request. Moreover, the response indicated that the

tape recording was maintained by the court reporter, and the request should be made

through the judicial administrator. According to the Clerk, Mr. Wilson failed to state

a cause of action for any mandamus relief or damages against the Clerk. In further

support of his exception, the Clerk also noted that the record requested - the tape

recording of Mr. Wilson's criminal trial - is not considered a public record and that

the Clerk is not the custodian of the record.

The trial court ultimately held a hearing on the Clerk's exception via video

proceedings on June 29, 2021, and sustained the exception raising the objection of

no cause of action as prayed for by the Clerk. However, the judgment sustaining the

exception, signed by the trial court on July 27, 2021, dismissed "this matter" with

prejudice. It is from the July 27, 2021 judgment that Mr. Wilson appeals.

1
Louisiana Revised Statutes 44:35(E)(l) provides as follows:
If the court finds that the custodian arbitrarily or capriciously withheld the
requested record or unreasonably or arbitrarily failed to respond to the request as
required by R.S. 44:32, it may award the requester any actual damages proven by
him to have resulted from the actions of the custodian except as hereinafter
provided. In addition, if the court finds that the custodian unreasonably or
arbitrarily failed to respond to the request as required by R.S. 44:32 it may award
the requester civil penalties not to exceed one hundred dollars per day, exclusive of
Saturdays, Sundays, and legal public holidays for each such day of such failure to
give notification.

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LAW AND DISCUSSION

The function of the peremptory exception raising the objection of no cause of

action is to test the legal sufficiency of the petition by determining whether the law

affords a remedy on the facts alleged in the pleading. Everything on Wheels

Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). No evidence

may be introduced to support or controvert the objection that the petition fails to

state a cause of action, and all well-pleaded allegations of fact are accepted by the

court as true. Goodwin v. City of Mandeville, 2018-1118 (La. App. 1st Cir.

5/31119), 277 So.3d 822, 827, writ denied, 2019-01083 (La. 10/8/19); see also La.

Code Civ. P. art. 931. Additionally, the facts shown in any documents annexed to

the petition must also be accepted as true. Cardinale v. Stanga, 2001-1443 (La.

App. lst Cir. 9/27/02), 835 So.2d 576, 578; see also La. Code Civ. P. art. 853 ("A

copy of any written instrument that is an exhibit to a pleading is a part thereof.").

The burden of showing that the plaintiff has stated no cause of action is upon

the exceptor. City of New Orleans v. Board of Directors of Louisiana State

Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 755. In reviewing a trial court's

ruling sustaining an exception raising the objection of no cause of action, an

appellate court should subject the case to de nova review because the exception

raises a question oflaw and the trial court's decision is based only on the sufficiency

of the petition. Fink v. Bryant, 2001-0987 (La. 11/28/01 ), 801 So.2d 346, 349. The

pertinent inquiry is whether, in the light most favorable to the plaintiff, and with

every doubt resolved in the plaintiffs favor, the petition states any valid cause of

action for relief. Scheffler v. Adams & Reese, LLP, 2006-1774 (La. 2/22/07), 950

So.2d 641, 64 7. When a petition states a cause of action as to any ground or portion

of the demand, an exception raising the objection of no cause of action must be

overruled. Thus, if the petition sets forth a cause of action, none of the other causes

of action may be dismissed based on an exception pleading the objection of no cause

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of action. Copeland v. Treasure Chest Casino, L.L.C., 2001-1122 (La. App. 1st

Cir. 6/21/02), 822 So.2d 68, 70.

Public Records Law

It is well-settled that the public's right of access to public records is a

fundamental right guaranteed by both the Louisiana Constitution and the Public

Records Law set forth in La. R.S. 44:1, et seq. Carolina Biological Supply Co. v.

East Baton Rouge Parish School Board, 2015-1080 (La. App. 1st Cir. 8/31/16),

202 So.3d 1121, 1125. Louisiana Constitution Article 12, § 3 mandates that "[n]o

person shall be denied the right to ... examine public documents, except in cases

established by law."

The enforcement provision under the Public Records Law, La. R.S. 44:35,

provides, in pertinent part, as follows:

A. Any person who has been denied the right to inspect, copy,
reproduce, or obtain a copy or reproduction of a record under the
provisions of this Chapter, either by a determination of the
custodian ... may institute proceedings for the issuance of a writ of
mandamus, injunctive or declaratory relief, together with attorney
fees, costs and damages as provided for by this Section, in the district
court for the parish in which the office of the custodian is located.

D. (1) If a person seeking the right to inspect, copy, or reproduce a
record or to receive or obtain a copy or reproduction of a public
record prevails in such suit, he shall be awarded reasonable
attorney fees and other costs of litigation. If such person prevails in
part, the court may in its discretion award him reasonable attorney fees
or an appropriate portion thereof.

E. ( 1) If the court finds that the custodian arbitrarily or capriciously
withheld the requested record or unreasonably or arbitrarily failed to
respond to the request as required by R.S. 44:32, it may award the
requester any actual damages proven by him to have resulted from the
actions of the custodian except as hereinafter provided. In addition, if
the court finds that the custodian unreasonably or arbitrarily failed to
respond to the request as required by R.S. 44:32 it may award the
requester civil penalties not to exceed one hundred dollars per day,
exclusive of Saturdays, Sundays, and legal public holidays for each
such day of such failure to give notification.

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(2) The custodian shall be personally liable for the payment of any such
damages, and shall be liable in solido with the public body for the
payment of the requester's attorney fees and other costs of litigation,
except where the custodian has withheld or denied production of the
requested record or records on advice of the legal counsel representing
the public body in which the office of such custodian is located, and in
the event the custodian retains private legal counsel for his defense or
for bringing suit against the requester in connection with the request for
records, the court may award attorney fees to the custodian.

F. An award for attorney fees in any suit brought under the provisions
of this Chapter shall not exceed the amounts approved by the attorney
general for the employment of outside counsel.

(Emphasis added.)

As stated above, La. R.S. 44:35(A) authorizes a person who has been denied

the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record to

institute proceedings for the issuance of a writ of mandamus. Additionally, "together

with" the issuance of a writ of mandamus the requestor may seek attorney fees, costs

and damages. Subsection D of the statute provides that if a person seeking the right

to inspect, copy, or reproduce a record or to receive or obtain a copy or reproduction

of a public record prevails in such suit, he shall be awarded reasonable attorney fees

and other costs. Carolina Biological Supply Co., 202 So.3d at 1126.

Under the clear language of this statute, the Public Records Law does not

contemplate or provide for damages separate from a proceeding seeking judicial

intervention to force compliance with a public records request through the issuance

of a writ of mandamus or injunctive or declaratory relief. Additionally, there must

be a judicial finding that the custodian arbitrarily or capriciously withheld the

requested record or unreasonably or arbitrarily failed to respond to the request. See

La. R.S. 44:35(A) and (E). The statute provides no cause of action for a requestor

to seek ordinary relief for damages, costs, or attorney fees in situations where a

public entity complies, even if untimely, with a public records request prior to the

filing of any legal proceedings. Carolina Biological Supply Co., 202 So.3d at 1126.

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In Carolina Biological Supply Co., the plaintiff filed a petition for damages

pursuant to La. R.S. 44:35, maintaining that the records were not timely provided in

accordance with the statute, although provided before suit was filed. After the trial

court issued a judgment dismissing plaintiffs claims against the public entity yet

also awarding the plaintiff civil penalties, attorney fees, and costs, the public entity

appealed. In view of the factual allegations set forth in the plaintiffs petition, this

court determined that the requestor failed to state a cause of action for damages,

attorney fees, and costs pursuant to La. R.S. 44:35, noting that the statute provides

for damages, penalties, attorney fees, and costs only when filed in conjunction with

mandamus, injunctive, or declaratory relief. Moreover, because the petition did not

(nor could it) assert a claim for mandamus, injunctive, or declaratory relief, the

plaintiff failed to state a cause of action for damages, attorney fees, and costs. Id. at

1127.

In the present matter, Mr. Wilson seeks mandamus relief as well as costs and

damages pursuant to La. R.S. 44:35(E)(l ). However, should the Petition fail to state

a cause of action for mandamus relief, Mr. Wilson's claims for costs and damages

would necessarily fail as well. Carolina Biological Supply Co., 202 So.3d at 1126.

Viewing the allegations of the Petition and all attachments thereto in the light most

favorable to Mr. Wilson, we conclude that Mr. Wilson has not stated a cause of

action under the Public Records Law for mandamus relief.

The tape recording of Mr. Wilson's criminal trial is not a public record to

which the Public Records Law, set forth in Chapter I of Title 44, applies. A "public

record" is defined in La. R.S. 44:l(A)(2)(a), which provides, in pertinent part, as

follows:

All books, records, writings, ... tapes, recordings, memoranda, and
papers, and all copies, duplicates, ... regardless of physical form or
characteristics, . . . having been used, being in use, or prepared,
possessed, or retained for use in the conduct, transaction, or
performance of any business, transaction, work, duty, or function which

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was conducted, transacted, or performed by or under the authority of
the constitution or laws of this state, ... are "public records ", except
as otherwise provided in this Chapter or the Constitution of
Louisiana.

(Emphasis added.) Further, La. R.S. 44:4, entitled "Applicability," provides, in

pertinent part, as follows:

This Chapter shall not apply:

(47)(a) To the physical medium or contents of any electronic storage
device including any compact disc, digital video disc, jump drive, audio
or video cassette tape, or any other type of electronic storage device, or
to any shorthand or longhand notes or writings or stenotype paper tapes
in the custody or under the control of a judge, clerk of court, official
court reporter, deputy official court reporter, or certified electronic
reporter and which are produced, made, or used by an official court
reporter, deputy official court reporter, free lance reporter, or certified
electronic reporter in any court of record of the state during any
proceedings before that court to report the proceedings or for the
purpose of transcribing into typewriting those portions of the
proceedings required by law or by the court to be transcribed.

Under the clear and unambiguous language of La. R.S. 44:4(47)(a), the Public

Records Law does not apply to the tape recording of Mr. Wilson's criminal trial as

sought through the public records request. See Pesnell v. Sessions, 52,646 (La. App.

2d Cir. 5/22/19), 274 So.3d 697, 703, writ denied, 2019-01040 (La. 10/15/19), 280

So.3d 599, cert. denied,_ U.S._, 141S.Ct.157, 207 L.Ed.2d 1096 (2020). As

a matter oflaw, La. R.S. 44:4(47)(a) specifically prohibits allowing access to a court

reporter's notes or recordings, as these are not considered to be public records. Bedi

v. Price, 19-138 (La. App. 5th Cir. 10/2/19), 282 So.3d 323, 328. Accordingly, Mr.

Wilson does not have any cause of action against the Clerk under La. R.S. 44:35,

which provides certain causes of action to "[a]ny person who has been denied the

right to ... obtain a copy or reproduction of a record under the provisions of this

Chapter." 2 (Emphasis added.)

2We further note that prior to filing the Petition, Mr. Wilson was made aware that the tape
recording requested was not a public record.

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Moreover, no additional facts can be pied or established by amendment of the

Petition to establish that the tape recording requested is a public record subject to the

provisions of the Public Records Law. The right to amend one's petition is qualified

by the restriction that the objections to the petition be curable, and the decision to

allow amendment of a pleading to cure the grounds for a peremptory exception is

within the discretion of the trial court. Palowsky v. Cork, 2019-0148 (La. App. 1st

Cir. 5/20/20), 304 So.3d 867, 875.

Additionally, a fair reading of the Petition and the documents annexed thereto

in the light most favorable to Mr. Wilson, and with every doubt resolved in his favor,

does not reveal any valid cause of action for relief. See Scheffler, 950 So.2d at 647.

After receiving the public records request, the Clerk, through Deputy Clerk Caldera

responded to Mr. Wilson that a 43-page transcript, indicating a 10-2 verdict during

polling, was available through the Clerk's office for a charge of $45.00. However,

Mr. Wilson was also informed that the tape recording of that transcript was

maintained by the court reporter,3 and Mr. Caldera informed Mr. Wilson that the

request was properly directed to the judicial administrator's office. Mr. Wilson then

sent a public records request to Ms. McCrory, the judicial administrator, who

properly informed him that the tape recording requested is not a public record to

which the Public Records Law applies.

Ultimately, Mr. Wilson complains that the defendants are wrongly

withholding the tape recording; however, the tape recording of Mr. Wilson's

criminal trial is not subject to production because it is not a public record. La. R.S.

44:4(47)(a). See Bedi, 282 So.3d at 328 (holding that La. R.S. 44:4 specifically

3
Pursuant to La. R.S. 15 :511, the court reporter is required to maintain tape recordings of
a criminal case, but the tape recordings shall be the property of the court in which the case was
heard. However, pursuant to La. Code Civ. P. art. 25l(A), the Clerk is the "legal custodian of all
of its records and is responsible for their safekeeping and preservation" and "[e]xcept as otherwise
provided by law, he shall permit any person to examine, copy, photograph, or make a
memorandum ofany of these records at any time during which the clerk's office is required by law
to be open." (Emphasis added.)

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prohibited the appellant from gammg access to the court reporters' notes or

recordings through discovery). Therefore, pursuant to our de nova review, we find

that Mr. Wilson's Petition fails to state a cause of action against Doug Welborn, in

his official capacity as Clerk of Court for East Baton Rouge Parish, which cannot be

cured by amendment. However, because the Clerk was the sole party filing the

peremptory exception raising the objection of no cause of action, which resulted in

the judgment before us on appeal, we find error in the portion of the July 2 7, 2021

judgment dismissing Mr. Wilson's claims against parties other than the Clerk.

CONCLUSION

In light of the foregoing, we affirm that portion of the trial court's July 27,

2021 judgment, which sustained the peremptory exception raising the objection of

no cause of action filed by defendant, Doug Welborn, in his official capacity as Clerk

of Court for East Baton Rouge Parish, and dismissed the matter against Doug

Welborn, in his official capacity as Clerk of Court for East Baton Rouge Parish, with

prejudice. We vacate that portion of the judgment dismissing any other claims raised

by David L. Wilson against the remaining defendants. Costs of this appeal, in the

amount of$959.00, are to be borne by plaintiff, David L. Wilson.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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