Kempf v. Cummings

610 So. 2d 137, 1992 La. App. LEXIS 3374, 1992 WL 319690
CourtLouisiana Court of Appeal
DecidedNovember 4, 1992
DocketNo. 91-693
StatusPublished
Cited by2 cases

This text of 610 So. 2d 137 (Kempf v. Cummings) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kempf v. Cummings, 610 So. 2d 137, 1992 La. App. LEXIS 3374, 1992 WL 319690 (La. Ct. App. 1992).

Opinion

YELVERTON, Judge.

This appeal raises the issue of whether an abstracter, as a member of the public, has the right to remove original unbound acts and land records from a parish clerk of court’s office for the purpose of evading photocopying fees. The court below issued a ruling that, in effect, recognized the existence of such a right. We reverse.

FACTS

Charles Cummings is the defendant in this action. He is an abstracter with an office in Opelousas. As an abstracter, Cummings spends a lot of time in the St. Landry Parish Clerk of Court’s office in Opelousas examining public records.

Patti Hebert Kempf, the named plaintiff in this action, is the St. Landry Parish Clerk of Court and, ex-officio, the register of conveyances and recorder of mortgages. In her official capacity, Kempf initiated a policy whereby no unbound original acts could be removed from the clerk’s office.

Prior to Kempf assuming office, the previous clerk of court regularly permitted Cummings to remove unbound original acts from the clerk’s office. Cummings would then take them to his own office where he would photocopy the acts on his own photocopying machine.

Cummings by this means was able to copy documents for pennies a page. He profited from this arrangement by charging his clients 50$ a page as a copying fee. He testified that Kempf’s new policy caused him to lose the profit from the 50$-per-page photocopy charge.

On July 26, 1989, Cummings needed an unbound original act and decided to challenge Kempf’s new policy. Cummings obtained the following order from Judge Robert Brinkman, of the 27th Judicial District Court:

ORDER
The court being advised that Cummings Titles & ABSTRACTS is in need of the following styled record or document:
234751
IT IS ORDERED that the office of the Clerk of Court of St. Landry Parish, Louisiana release such record to Chakles W. Cummings or his duly designated representative, such record or document to be returned within Five (5) days time, or immediately upon call by the Clerk of Court.
Opelousas, Louisiana this 26 day of July, 1989.
(s) Robert Brinkman JUDGE

[139]*139The parties interpreted this order as authorizing the removal of the record from the clerk’s custody.

This ex parte order was rendered without notice or hearing. The order was not part of any lawsuit. There was no minute entry made of its issuance. No formality preceded its issuance. Manifestly, the order was signed simply on Cummings’ oral representation that he needed document No. 234751. As we shall explain later, this procedure was patently invalid, as such a shortcut remedy is nowhere sanctioned by the enforcement provisions of the public records law, i.e., La.R.S. 44:35. Nevertheless, this ex parte court order set in motion the following procedural events.

When she was confronted with this order, Kempf obtained from Judge Isom Guil-lory, Jr., another judge of the district, a temporary restraining order, together with a rule to show cause why Judge Brink-man’s ex parte order should not be dissolved, and why Cummings should not be enjoined from obtaining any other orders that would allow him to remove original documents from the clerk’s office.

The resulting stalemate and confusion over the procedural status of things lasted for several months. During this time all of the district court judges of the 27th Judicial District recused themselves from the case.

Then on January 26, 1990, Cummings filed a rule for contempt against Kempf for her failure to comply with Judge Brink-man’s ex parte court order of July 26,1989. The rule further alleged that Judge Guillo-ry’s temporary restraining order was wrongfully issued and that Cummings was entitled to damages.

On April 25, 1992, a hearing was held before Judge Carrol L. Spell, who was assigned to the case from outside the district. Judge Spell was of the opinion that Judge Guillory’s order did not operate to stay the effect of Judge Brinkman’s order. Accordingly, Judge Spell held that the denial of access to the originals directly violated Judge Brinkman’s original court order.

Judge Spell did not hold Kempf in contempt, but he ordered her to pay Cummings $277 for all of his photocopying costs accruing from August 26 to December 29. The court also cast Kempf with all court costs ($173) and all attorney’s fees ($250) that Cummings had to pay in order to have Judge Guillory’s order dissolved.

Kempf filed a suspensive appeal contending that the trial court erred in holding that Judge Brinkman’s ex parte order furnished a basis for an award of damages to Cummings. Kempf complained that the trial court erred by ordering her to pay Cummings’ damages, court costs and attorney’s fees.

OPINION

These two litigants are no strangers to this court. In a case entitled Cummings v. Kempf 570 So.2d 133 (La.App. 3rd Cir.1990), writ denied 575 So.2d 390 (La.1991), these very same parties argued before this court on the issue of whether Louisiana’s right to access laws gave Cummings the right to install his own photocopying machine in the clerk’s office. Relying on the Supreme Court’s decision in Title Research Corporation v. Rausch, 450 So.2d 933 (La.1984), we ruled for Cummings and permitted him to install his photocopying machine under certain conditions.

We gather from appellant’s brief and from Cummings own testimony that he is no longer satisfied with the right to merely have a copying machine in the clerk’s office. He now asserts that he has the additional right to remove unbound originals from the clerk’s office.

Louisiana’s law, concerning right to access of public records, is the same now as it was when the first case was before us. The pertinent statute is La.R.S. 44:31. It says:

Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter any person of the age of majority may inspect, copy or reproduce or obtain a reproduction of any public record.

[140]*140The court in Rausch explained this statute as follows:

More specifically, R.S. 44:313 gives to “any person of the age of majority” the right to choose from four options: he may inspect the records; he may copy the records; he may reproduce the records; or he may obtain, from the custodian, a reproduction of the records.4 The statute is clear and unambiguous in its grant of these alternate rights, and it also is clear that the choice of which optional right to exercise rests with the one requesting the records and not with the custodian.

(footnotes omitted).

Rausch explained further that access to public records should be allowed wherever possible:

The right of the public to have access to the public records is a fundamental right, and is guaranteed by the constitution. La. Const, art. 12, § 3. The provision of the constitution must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Id.

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Related

Allen v. Ritter
10 A.3d 1183 (Court of Special Appeals of Maryland, 2010)
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638 So. 2d 1164 (Louisiana Court of Appeal, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
610 So. 2d 137, 1992 La. App. LEXIS 3374, 1992 WL 319690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kempf-v-cummings-lactapp-1992.