In Re: Matter Under Investigation

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-509

IN RE: MATTER UNDER INVESTIGATION

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-38-15
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery,
Judges.

AFFIRMED.

Douglas Kent Williams
Jennifer Dyess Sims
Breazeale, Sasche & Wilson, L.L.P
P. O. Box 3197
Baton Rouge, LA 70821-3197
(225) 387-4000
COUNSEL FOR APPELLEE:
Our Lady of the Lake College

Rene' J. Pfefferle
Watson, Blanche, Wilson & Posner
P. O. Drawer 2995
Baton Rouge, LA 70821-2995
(225) 387-5511
COUNSEL FOR APPELLEE:
Jennings American Legion Hospital

Robert C. McCorquodale
Of Counsel
P. O. Box 2185
Lake Charles, LA 70602
(337) 491-3622
COUNSEL FOR APPELLANT:
Jefferson Davis Sheriff’s Office

EZELL, Judge.

In this matter, the Jefferson Davis Parish Sheriff‘s Office (JDSO) appeals

the decision of the trial court granting Jennings American Legion Hospital‘s

(JALH) motion to quash a search warrant and return confidential documents seized

in accordance with that warrant. For the following reasons, we hereby affirm the

decision of the trial court.

This case originates from a former disgruntled job applicant involving law

enforcement in an alleged case of defamation. Michael Ellender is a certified

registered nurse anesthetist who applied for privileges at JALH. As part of the

application process, he was required to submit references. These peer review

references are to be confidential under La.R.S. 13:3715.3. After he was denied

privileges at JALH, he sought to obtain the review letter from one of his references,

the director for the Nurse Anesthesia program at Our Lady of the Lake College

(OLLC), where he attended school. Believing he had obtained a bad reference

after being tangentially involved in a suit against the school by some of his fellow

students, he tried to obtain a copy of the reference letter, but was denied due to the

confidentiality provisions. Mr. Ellender then approached the JDSO seeking to file

a complaint for criminal defamation.

In conjunction with this alleged criminal claim, the JDSO sought a search

warrant to obtain the reference letter. On a Friday afternoon, the JDSO approached

a pro tem judge who granted the warrant. Soon thereafter, the pro tem judge

placed the seized documents under seal. JALH sought to quash the warrant and

have the documents returned. When the regular trial judge returned, he held a

hearing on the matter and granted the motion to quash and ordered the return of the

seized property. From that decision, the JDSO appeals.

On appeal, the JDSO asserts three assignments of error. The JDSO claims

that the trial court erred in allowing JALH to file a civil proceeding to force the

return of evidence seized via warrant in a criminal matter; in finding that JALH

had standing to challenge the warrant; and in quashing the warrant when JALH did

not introduce evidence at the hearing.

The JDSO claims in its first assignment of error that the trial court erred in

allowing a party to file a civil proceeding to force the return of evidence seized in a

criminal investigation.

As a general rule, we do not consider issues that were not raised in the

pleadings, were not addressed by the trial court, or are raised for the first time on

appeal. Stewart v. Livingston Parish Sch. Bd., 07-1881 (La.App. 1 Cir. 5/2/08),

991 So.2d 469; See also, Graubarth v. French Market Corp., 07-416 (La.App. 4

Cir. 10/24/07), 970 So.2d 660; Uniform Rules—Courts of Appeal, Rule 1–3. The

JDSO did not challenge the procedural manner in which the motion to quash was

filed in the trial court below, and raises it here for the first time. Because the JDSO

did not raise this as an issue before the trial court, this issue is not properly before

us on review.1

The JDSO next claims that the trial court erred in quashing the warrant when

it claims neither JALH nor OLLC had standing to object to the search warrant.

When addressing a litigant‘s standing, we have found that the
―predicate requirement of standing is satisfied if it can be said that the

1
We do note that the JPSO‘s arguments, had they been properly raised at the trial court,
were technically correct. See Delta Retail 45, L.L.C. v. Cox, 44,873 (La.App. 2 Cir. 10/28/09),
26 So.3d 200, writ denied, 09-2580 (La. 2/5/10), 27 So.3d 304. However, we further note that
the trial judge hearing this case is the sole judge for the 31st Judicial District and would have
heard the motion, no matter the manner in which this case was filed or assigned. This fact
renders this matter divergent from Delta Retail 45, and makes the JPSO‘s argument amount to a
distinction without a difference as applied to the matter actually before us. However, as this
issue has not been properly appealed, we need not determine what, if any, effect that fact has in
this case.

2

[litigant] has an interest at stake in litigation which can be legally
protected.‖ In re: Melancon, 05-1702, p. 9 (La.7/10/06), 935 So.2d
661, 668. [. . .] In addition, that a party has the legal capacity to
appear in court does not alone define standing; rather, standing is
gauged also by the specific statutory or constitutional claims that the
party presents and the party‘s relationship to those claims. Melancon,
05-1702 at p. 9, 935 So.2d at 668. The standing inquiry requires
careful examination of whether a particular litigant is entitled to an
adjudication of the particular claims it has asserted. Melancon, 05-
1702 at p. 10, 935 So.2d at 668 (citing Allen v. Wright, 468 U.S. 737,
752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984)).

In re Matter Under Investigation, 07-1853, 07-1870, 08-1066, p.10 (La. 7/1/09),

15 So.3d 972, 981 (first alteration in original). In addition, when ruling on

standing, ―it is both appropriate and necessary to look to the substantive issues . . .

to determine whether there is a logical nexus between the status asserted and the

claim sought to be adjudicated.‖ Chicago Tribune Co. v. Mauffray, 08-522, pp. 7-8

(La.App. 3 Cir. 11/5/08), 996 So.2d 1273, 1279 (quoting Flast v. Cohen, 392 U.S.

83, 1021 88 S.Ct. 1942, 1953 (1968)).

It is clear that JALH has standing in this matter. It is the owner of the seized

documents. ―[A]n owner may seek return of seized property in the criminal

proceeding even where the owner is not a defendant.‖ Delta Retail 45, L.L.C. v.

Cox, 44,873, p. 5 (La. App. 2 Cir. 10/28/09), 26 So.3d 200, 204, writ denied, 09-

2580 (La. 2/5/10), 27 So.3d 304. Moreover, JALH has an interest at stake in

litigation which can be legally protected. Louisiana Revised Statutes

13:3715.3(A)(2) states that records of peer review committees of any medical

organization:

[S]hall be confidential wherever located and shall be used by such
committee and the members thereof only in the exercise of the proper
functions of the committee and shall not be available for discovery or
court subpoena regardless of where located, except in any proceedings
affecting the hospital staff privileges of a physician, dentist,
psychologist, or podiatrist, the records forming the basis of any
decision adverse to the physician, dentist, psychologist, or podiatrist

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may be obtained by the physician, dentist, psychologist, or podiatrist
only.

Louisiana Revised Statutes 13:3715.3 ―was designed to protect the confidentiality

of hospital peer review committee records.‖ Gauthreaux v. Frank, 95-1033, p. 1

(La. 6/16/95), 656 So.2d 634, 634. In that JALH is seeking to recover documents

that are defined as confidential by statute, it is clear that it has standing to recover

said property. This assignment of error is devoid of merit.

Finally, the JDSO claims that the trial court erred in granting the motion to

quash when the plaintiffs introduced no proper evidence in the matter.

The standard for reviewing a trial court‘s determination on a motion to

quash depends on whether the motion involves legal issues, factual determinations,

or any combination thereof. State v. Hall, 13-453, (La.App. 4 Cir. 10/9/13), 127

So.3d 30. Where the underlying motion to quash involves legal issues only, an

appellate court should apply a de novo standard of review. Id. However, where

the motion to quash involves factual determinations or a mixed determination of

facts and law, the appellate court should apply an abuse of discretion standard. Id.

―Because the complementary role of trial courts and appellate courts demands that

deference be given to a trial court‘s discretionary decision, an appellate court is

allowed to reverse a trial court judgment on a motion to quash only if that finding

represents an abuse of the trial court‘s discretion.‖ State v. Love, 00-3347, pp. 9-10

(La. 5/23/03), 847 So.2d 1198, 1206.

A search of the jurisprudence of this State finds that prosecutions for

criminal defamation are few and far between, to say the least. It is clear from the

record that the Jefferson Parish District Attorney is not going to prosecute this

matter as directly stated to the trial court by the District Attorney. Further, it is

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clear from reading the warrant issued that the affidavit it was issued upon was full

of Mr. Ellender‘s mere conclusions about an opinion allegedly contained in a

reference letter, rather than fact. The United States Supreme Court held that

―‗[s]ufficient information must be presented to the magistrate to allow that official

to determine probable cause; his action cannot be a mere ratification of the

bare conclusions of others.‘‖ United States v. Leon, 468 U.S. 897, 915, 104 S.Ct.

3405, 3416 (1984) (quoting Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317,

2333 (1983)).

Moreover, the pro tem judge who issued the warrant almost immediately

sealed the documents seized, evidencing that even he had concerns about the

legality of the warrant, which sought information that was clearly protected by law.

Ultimately, the pro tem judge who issued the warrant basically placed the matter

on hold for the regular trial judge to return. It is clear that the trial judge who

quashed the warrant would never have granted the warrant in the first place. 2

Sending this matter back to him in any capacity would only result in the same

disposition after further waste of time and money. Based on the scant record

before us, we can find no abuse of the trial court‘s discretion in making that

finding, in quashing the warrant, or in returning the documents.3 Therefore, the

decision of the trial court is affirmed.

2
The trial court noted in his reasons for judgment that if a search warrant were issued
under the circumstances of this case, then search warrants would be requested every time
someone did not receive a job or loan based on an allegedly bad review.
3
JDSO claims that the trial court‘s ex parte communication with the Jefferson Davis
Parish District Attorney, who stated he would not prosecute this case, constituted reversible error
on the part of the trial court. While the ex parte communication is problematic, to say the least,
that discussion was not the sole reason the trial court cited for his determination. He also
considered the statutory protection in place for the documents, the offense alleged, the timing of
the warrant and the pro tem judge‘s immediate actions in sealing it as well. In light of these other
factors, as well as the bare, conclusory nature of the affidavit in the warrant, the trial court had
several other factors which support his conclusion, and we find the ex parte communication to be
harmless.

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The decision of the trial court below is hereby affirmed. Costs of this appeal

are hereby assessed against the JDSO.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2–16.3.

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