Louisiana Dept. of Health, Office of Public Health v. Sheman Bernard

• Court: Louisiana Court of Appeal
• Decided: September 26, 2018
• Docket: CA-0018-0213
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

18-213

LOUISIANA DEP’T. OF HEALTH AND HOSPITALS, OFFICE OF PUBLIC HEALTH

VERSUS

SHEMAN BERNARD

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20175240 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

JOHN E. CONERY JUDGE

Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.

AFFIRMED. Sheman Bernard 1224 Carmel Drive Lafayette, Louisiana 70501 PRO SE DEFENDANT/APPELLANT: Sheman Bernard

Neal Risley Elliott, Jr. Bureau of Legal Services Department of Health and Hospitals Post Office Box 3836 Baton Rouge, Louisiana 70802 (225) 342-1128 COUNSEL FOR PLAINTIFF/APPELLEE: Louisiana Department of Health and Hospitals, Office of Public Health

Alice O. Landry Attorney at Law 825 Kaliste Saloom Road # 102 Lafayette, Louisiana 70508 (337) 262-1573 COUNSEL FOR PLAINTIFF/APPELLEE: Louisiana Department of Health and Hospitals, Office of Public Health Dr. Juliette Stefanski, authority for Region IV Office of Public Health CONERY, Judge.

In this case, the trial court granted a permanent injunction against defendant

Sheman Bernard, enjoining her from any contact with the employees of the

Louisiana Department of Health and Hospitals Office of Public Health, Sanitation

Services in Baton Rouge, Louisiana (hereinafter “LDH-OPH”), or any employee of

the Region IV Office of Public Health, Sanitation Services, located in the Clifton

Chenier Complex in Lafayette, Louisiana (hereinafter “Region IV”) except as

provided in the judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The issues between Ms. Bernard and the LDH-OPH, the state entity with

direct supervision over Region IV, have been ongoing since 2012. In 2012, Ms.

Bernard and her husband, Timothy Bernard, entered Region IV offices with a

video camera seeking a “file” for their address at 1224 Carmel Drive, Lafayette, La.

70501. The Bernards were told no such file existed.

On September 11, 2017, a “PETITION FOR TEMPORARY

RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT

INJUNCTION,” was filed against Ms. Bernard on behalf of the LDH-OPH and

Region IV. The petition was verified by Dr. Juliette “Tina” Stefanski, M.D. in her

capacity as the Appointing Authority on behalf of Region IV Office of Public

Health in the LDH. The LDH-OPH submitted several exhibits in support of the

petition which will be discussed below.

First, an August 8, 2014 letter from Tiffany Sonnier, of Region IV, to Ms.

Bernard indicated that on July 21, 2014, two representatives of Region IV

attempted to inspect the Bernard property. The inspection was the result of a complaint received in the Lafayette Parish Health Unit. However, the two

representatives were not allowed on the property by the owner.

On November 6, 2014, T.J. Lane, Assistant Secretary of the LDH-OPH,

wrote to Ms. Bernard addressing her “inquiry and concerns” regarding a “water

main leak and the abandoning of the water main” near the Bernard property by

Lafayette Utilities System (LUS). The letter explained that an inspection had been

conducted to determine how to repair a leaking water main on Ovey Street, near

the Bernards’ property. According to the November 6, 2014 letter, LUS

determined that since the water main was leaking, and no customers were being

serviced by that water main, they had abandoned the line located between Carmel

Drive and Fred Street. Therefore, the leak had no impact on the Bernard property.

The November 6, 2014 letter further stated that LUS had contacted Region

IV in Lafayette on October 10, 2014, to advise that a crew had been sent to the area

to put dirt in the hole created by the leak and to clean up the area. In closing, the

letter stated that Mr. Lane hoped the work done in the area was to the satisfaction

of Ms. Bernard. The correspondence also contained contact information for Ms.

Bernard to use if she had any questions about the LUS operations in the area.

On May 6, 2015, Mr. Lane of the LDH-OPH once again wrote to Ms.

Bernard based on her “inquiry and concerns regarding a septic system” on her

property. The letter indicated that Mr. Chris Soileau, LDH-OPH District Engineer

in Lafayette, La., had conducted a site visit on November 20, 2014 and could not

identify any sewage discharge or water leaks in the area. Additionally, on March

27, 2015, Ms. Jennifer Kihlken, LDH-OPH District Engineer, contacted Mr. Mike

Rhodes with LUS, who stated that he was unaware of a septic system existing on

the property. LUS, through Mr. Rhodes, responded that “the property is serviced

2 through a service line to the LUS municipal sewer system. LUS had previously

investigated the sewer lines for leaks by conducting a dye test in the area and found

no issues.” Mr. Lane’s letter also advised Ms. Bernard that the family should

contact a “Septic Tank Service” to determine if anything was present on the

property and to help “with detection and abandonment.” Mr. Lane’s letter clearly

stated that everything that could be done had been done by LDH-OPH and LUS to

remedy the problem, and that the Bernards should enlist a private “Septic Tank

Service” should they feel further assistance was needed.

On February 27, 2015 and March 16, 2015, Mr. and Ms. Bernard, Ms.

Bionca Joseph, and Ms. Evelyn Bernard filed suit against several public entities,

including the LDH-OPH and LUS, claiming, among other things, fraud and

wrongful death. Both petitions were attached as exhibits to LDH-OPH’s

September 2017 petition for a permanent injunction against Ms. Bernard. A panel

of this court heard the appeal of the consolidated suits in Bernard v. Lafayette City

Police Dept., 16-361, 16-362 (La.App. 3 Cir. 11/16/16), (unpublished opinion),

writ denied, 16-2253 (La. 2/3/17), 215 So.3d 691.

Although the panel found the facts “exceedingly difficult to determine,” the

portion of the case dealing with LUS and LDH-OPH (referred to as “DHH” in the

lawsuit) involved the attempt by the work crew dispatched by LUS to fill the hole

created by the leak in October 2014. Apparently, the LUS crew was accompanied

by the Lafayette City Police Department (LPD). Mr. Bernard and his daughter,

Bionca Joseph, actively protested the presence of the LPD, LUS, and any

equipment on their property, and were arrested for “battery on a police officer,

criminal mischief, and resisting arrest.” The panel ultimately affirmed the trial

3 court’s dismissal of the Bernards’ claims against LUS and LDH-OPH on

procedural grounds.1

Procedural Posture Of The Plaintiff’s Petition

In response to the petition filed by LDH-OPH, the trial court initially signed

a Temporary Restraining Order (TRO) on September 11, 2017, and the hearing on

the petition was fixed for October 16, 2017. A continuance was granted on

October 18, 2017, re-fixing the hearing on the petition to November 27, 2017.

The hearing on the petition of LDH-OPH and Region IV for a permanent

injunction against Ms. Bernard was ultimately held as scheduled on November 27,

2017 with counsel for LDH-OPH present, along with Ms. Bernard representing

herself pro se. Ms. Bernard initially objected to the proceedings based on a case

allegedly filed in federal court and stated that she did not intend to participate

based on her Fifth Amendment rights. However, the trial court determined that the

case in federal court had no relationship to LDH-OPH’s request for a permanent

injunction against Ms. Bernard, and the hearing proceeded as scheduled.

LDH-OPH called as its first witness Mr. Albert J. Mancuso, Jr., who is the

program administrator for LDH-OPH retail food program, the on-site wastewater

program, and the buildings and permits program. Mr. Mancuso testified that he

oversaw the administration of these programs for LDH-OPH and had two

1 This was not the first suit brought by the Bernards concerning the condition of their property. In Bernard v. Lafayette-City Parish Consol. Gov’t, 12-1341 (La.App. 3 Cir. 4/10/13) (unpublished opinion), writ denied, 13-971 (La. 6/14/13), 118 So. 3d 1088, a panel of this court affirmed the dismissal of both LUS and LDH-OPH on procedural grounds based on the Bernard’s refusal to submit to the jurisdiction of the trial court. When the plaintiffs were informed that the trial court would have to dismiss their claim, both Ms. Bernard and Mr. Bernard agreed. Mr. Bernard then replied “[T]hat’s what we are asking you to do.” Accordingly, the trial court dismissed their case with prejudice.

4 individuals that he reported to in the administration, Ms. Carolyn Bombet, his

direct supervisor, and Mr. Mike Vidrine, her superior. Mr. Mancuso’s duties

included the direct supervision of six individuals within his office, who in turn

supervised the nine regional sanitarians. Indirectly, Mr. Mancuso has supervisory

control over about two hundred and fifty employees across the State.

Mr. Mancuso testified that his involvement with Ms. Bernard began in July

of 2017. He had no prior knowledge of any of the previous events. He spoke with

Ms. Bernard on his business telephone, then he forwarded her complaint to the

regional sanitarian, who was responsible for forwarding the complaint on to the

local parish health unit.

From that point on, Mr. Mancuso began to receive what he termed “a pattern

of calls every day.” Mr. Mancuso testified that he received sixteen documented

voicemails between July 19, 2017 and August 16, 2017. He further testified to

additional calls that he did not document. Mr. Mancuso testified he found it

increasingly more difficult to do his assigned job when “every day you have the

same call and there’s nothing that – nothing new or nothing has changed. There’s

nothing that was done.”

In the face of increasing difficulty in his daily work, he sought the assistance

of his boss, Mr. Vidrine. He told him, “We’re getting calls all the time. I don’t

know what to do with this. It’s already been taken care of. I thought it was all

done. There is nothing else we can do.” Mr. Vidrine agreed and referred the

matter to counsel for LDH-OPH.

Mr. Mancuso also testified that he had referred Ms. Bernard to someone in

her region for assistance, and suggested she go through her parish health unit, but

5 she continued to contact him, although she never came to his office. At trial, Ms.

Bernard refused her opportunity to cross-examine Mr. Mancuso.

LDH-OPH then called Ms. Susan Trahan, the sanitarian parish manager for

Lafayette Parish. Ms. Trahan oversees the same areas as Mr. Mancuso does for the

State and has direct supervision of six employees. Ms. Trahan testified to specific

encounters with Ms. Bernard, which included the 2012 visit to her office in which

Ms. Bernard entered with a video camera, seeking a file for her address pertaining

to an old sewer system on her property at 1224 Carmel Drive. Ms. Bernard was

told at that time that there were no records on file for that address.

Ms. Trahan testified that she had traveled to Ms. Bernard’s property in 2014,

along with an inspector, to investigate the complaint and the property. However,

neither Ms. Trahan nor the inspector was allowed on the property by Ms. Bernard’s

husband.

Ms. Trahan further testified that in late June of 2017, Ms. Bernard began

calling the office and talking to both Ms. Trahan and different inspectors. Ms.

Trahan testified that since then, she had received recorded voice messages on the

following dates: July 12th, July 27th, July 28th, August 4th, August 8th, August 11th,

August 14th, and August 15th. Ms. Trahan testified that she had not received any

calls from Ms. Bernard since the TRO was signed by the trial court on September

11, 2017.

Ms. Trahan then contacted her regional director, who at the time was Ms.

Vickie Collins, about the repeated calls and the effect they were having on her

ability to do her work, as there was nothing to be resolved. Whereupon, Ms.

Collins also contacted counsel for LDH-OPH.

6 Ms. Bernard questioned Ms. Trahan on cross-examination concerning the

reasons she came to the property in 2014, as she stated in 2012 that there were no

records on file. Ms. Trahan responded that the inspection in 2014 was in response

to a complaint phoned into the Baton Rouge office. The record does document that

there was a problem at the property in 2014.

LDH-OPH rested its case. Ms. Bernard submitted no evidence in the record,

and stated, “I told you what I had. I don’t have any evidence to give to the Court,

but I do have closing statements to speak on.”

Closing statements began, and counsel for LDH-OPH asked the trial court

to permanently enjoin Ms. Bernard from contacting the offices of Mr. Mancuso or

Ms. Trahan. The trial court understood the request for the two offices, but further

questioned counsel for LDH-OPH about the request that Ms. Bernard not be

allowed to go within 200 feet of the Clifton Chenier Complex. Counsel expressed

a concern that if Ms. Bernard was prevented from calling the offices in Baton

Rouge and Region IV that she might begin making just as frequent in-person visits

to the offices in question.

Ms. Bernard insisted that the initial problem had not been addressed and that

both LDH-OPH and Region IV were keeping her from getting the information she

needed to determine what was broken in her yard. However, documentation

submitted in support of LDH-OPH’s petition demonstrated that LDH-OPH did

everything it could to assist Ms. Bernard in connection with her requests.

At the completion of closing arguments, the trial court stated:

YOUR HONOR: And I think that – I believe the testimony of Mr. Mancuso, when he said that there were times where he was on the phone for over an hour. Obviously, the repetitive phone calls as well as the repetitive voicemails were unreasonable.

7 They were not productive. They did not lead to a solution of the problem but rather led to the harassment and the disruption of the daily duties of Mr. Mancuso as well as Ms. Trahan.

Based on the foregoing, the trial court found in favor of LDH-OPH and

granted the permanent injunction in part, enjoining Ms. Bernard from contacting

by any means, including phone, mail, email or other electronic means, or

threatening any employee of “the Office of Public Health, Sanitation Services in

Baton Rouge, La., or any employee of the Region IV Office of Public Health,

Sanitation Services at 220 W. Willow Street, Bldg. A. Lafayette, La.”

However, the trial court denied the request of the LDH-OPH that Ms.

Bernard be enjoined from coming within 200 feet of the Clifton Chenier Complex.

The trial court further ordered that if Ms. Bernard had any “legitimate Office of

Public Health issues,” she could contact “Ms. Carolyn Bombet, RS ǀ Chief Field

Operations, office of Public Health, 628 N. 4th Street Bin 10 Box 9, Baton Rouge,

LA 70802.”

Ms. Bernard timely appealed the November 30, 2017 judgment reflecting

the trial court’s ruling.2

ASSIGNMENTS OF ERROR

Ms. Bernard asserts the following errors on appeal:

1. The court [erred] in allowing preliminary hearing before [trial] of permanent injunction, also the court [erred] in failing to furnish peace bond or exhaust all legal remedies.

2. The court [erred] to Due Process proceedings.

3. The court and plaintiff failed to process serve the issuance of Temporary Restraining order, no signature of service was given or provided.

2 LDH-OPH did not appeal the trial court’s denial of the portion of the permanent injunction enjoining Ms. Bernard from coming within 200 feet of the Clifton Chenier Complex.

8 4. The court [erred] in ordering injunction, the affidavit did not prove harassing, assaulting, or threatening anyone of [its] staff or employee[s].

5. [V]iolations of ADA title II/III

LAW AND DISCUSSION

Standard of Review

The Louisiana Supreme Court in Rand v. City of New Orleans, 14-2506,

p.4 (La. 6/30/15), 173 So.3d 1148, 1151 instructed that “[T]he issuance of a

permanent injunction takes place only after a trial on the merits in which the

burden of proof is a preponderance of the evidence.” The trial court’s ruling

granting a permanent injunction will not be disturbed on appeal absent manifest

error. Mary Moe, L.L.C. v. Louisiana Bd. Of Ethics, 03-2220 (La. 4/14/04), 875

So.2d 22.

Assignment of Error Three

This court will first address the issue of service of the Temporary

Restraining Order issued by the court, as it pertains to the trial court’s ability to

exercise its jurisdiction over Ms. Bernard. Ms. Bernard insisted at trial that she

had not received service of the TRO. Ms. Bernard stated on the record, “I didn’t

know that I had a Temporary Restraining Order granted on me already. That

wasn’t process served to me, Your Honor.” Counsel for LDH-OPH indicated that

service of the TRO had been requested and a TRO dated September 13, 2017 is in

the record addressed to Ms. Bernard. Ms. Bernard continued to insist she “didn’t

get anything.”

The trial court then asked the minute clerk to check the service on Ms.

Bernard, to which she replied, “personal service.” The trial court then stated,

9 “[p]ersonal service, okay. All right. Well, the Clerk shows personal service, so –

and that’s what I have to go with.” Further, Ms. Bernard appeared at the trial on

the merits on November 27, 2017. The trial had previously been fixed for October

16, 2017. However, at the request of counsel for LDH-OPH, the trial was

continued by the trial court to the November trial date. Therefore, Ms. Bernard’s

presence at the trial on the merits belies her assertion that she did not receive notice

of the proceedings. Based on the record before us we find that Ms. Bernard’s

assignment of error three is without merit.

Assignment of Error Four

Ms. Bernard argues the trial court erred in finding that her repeated calls to

the offices of LDH-OPH in Baton Rouge and Lafayette were not supported by the

“affidavit.” In this case, the trial court held a full trial on the merits with both

testimonial and documentary evidence, extensively discussed in this opinion.

LDH-OPH did not simply rely on “affidavits” to support its case that Ms.

Bernard’s continued calls to the offices in Baton Rouge and Lafayette were

impeding the employees from doing their duties.

The trial court found, based on the testimony and documentation submitted,

that Ms. Bernard’s actions warranted a permanent injunction against her contacting

either office by any means. We find no manifest error in the trial court’s ruling

granting the permanent injunction in favor of LDH-OPH as stated in the November

30, 2017 judgment. Ms. Bernard’s assignment of error four is also without merit.

Assignments of Error One and Five

Having discussed and determined that the main assignments of error raised

by Ms. Bernard are without merit, we now turn to her assignments of error one and

five.

10 In Ms. Bernard’s assignment of error one, she asserts that the trial court

erred in continuing with the hearing as LDH-OPH failed “to furnish [a]

“peacebond[sic]” and or to “exhaust all legal remedies.” 3 In assignment of error

five, Ms. Bernard states that LDH-OPH committed “[V]iolations of ADA [T]itle

II/III.”

Ms. Bernard failed to cite in her brief any legal remedies that the LPH-OPH

was required to exhaust before filing its petition for a permanent injunction, or any

violations by LDH-OPH of the Americans With Disabilities Act, “ADA [T]itle

II/III.” Ms. Bernard also failed to raise these issues with the trial court at the trial

on the merits, and therefore we are precluded from considering them on appellate

review. Boudreaux v. State Dep’t of Transp. & Dev., 01-1329 (La. 2/26/02), 815

So.2d 7.

The bond required by La.Code Civ.P. art. 3610 was properly waived by the

court pursuant to La.R.S. 13:4581, which provides that state agencies, such as

LDH-OPH, “shall not be required to furnish any appeal bond or any other bond in

any judicial proceedings instituted by or brought against them, that arise from

activities within the scope and course of their duties and employment.” Therefore,

the trial court properly waived the bond requirement of La.Code Civ.P art. 3610 as

requested by LDH-OPH in their petition for a permanent injunction. Thus, Ms.

Bernard’s assignments of error one and five are also without merit.

Assignment of Error Two

In assignment of error two, Ms. Bernard claims she did not receive “Due

Process Proceedings.” Ms. Bernard was present at the proceedings, had the

3 The term “peacebond” used by Ms. Bernard is misplaced in this context, as it refers to a term from the La.Code Crim.P. art. 26, et seq. The bond which applies in this instance is the one required in La.Code Civ.P. art. 3610.

11 opportunity to cross-examine the witnesses for LDH-OPH, and had the option to

submit evidence in opposition to both the testimonial and documentary evidence

submitted to the trial court by LDH-OPH. Therefore, she received the process due

all litigants. Accordingly, Ms. Bernard’s assignment of error two is without merit.

Further, we find that the trial court was sensitive to Ms. Bernard’s pro se

status and her claimed disability. The trial court allowed her to fully state her case.

However, the record clearly supported the claim by LDH-OPH that everything that

could be done had been done by the Office of Sanitation in both Lafayette and

Baton Rouge to assist Ms. Bernard with her alleged problem. We therefore affirm

the trial court’s judgment of November 30, 2017 in its entirety.

CONCLUSION

For the foregoing reasons, the trial court’s November 30, 2017 judgment in

favor of Louisiana Department of Health and Hospitals Office of Public Health,

Sanitation Services is affirmed in its entirety. All costs of this appeal are cast

against Sheman Bernard.

AFFIRMED.