Opinion
2018 CW 0249
02-07-2019
STEVE KISTLER v. CITY OF DENHAM SPRINGS, DENHAM SPRINGS POLICE DEPARTMENT, AND MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD
Steve LeBlanc Baton Rouge, Louisiana Attorney for Plaintiff/Appellant Steve Kistler Albert D. Giraud Christopher M. Moody Hammond, Louisiana Attorneys for Defendants/Appellees City of Denham Springs and Denham Springs Police Department
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana
No. 153945, Div. "E" The Honorable Brenda Bedsole Ricks, Judge Presiding Steve LeBlanc
Baton Rouge, Louisiana Attorney for Plaintiff/Appellant
Steve Kistler Albert D. Giraud
Christopher M. Moody
Hammond, Louisiana Attorneys for Defendants/Appellees
City of Denham Springs and Denham
Springs Police Department BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
Steve Kistler appeals a judgment of the district court, which affirmed the decision of the City of Denham Springs Fire and Police Civil Service Board (the Board) to uphold his termination from the police force. After reviewing the facts and applicable law, we convert the appeal to an application for a supervisory writ and deny the writ, thus maintaining the district court judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Steve Kistler was an employee of the Denham Springs Police Department (DSPD) and held the rank of Captain. This matter arose out of Captain Kistler's issuance of a misdemeanor summons instead of an arrest warrant to a Denham Springs City Council member who allegedly committed the crime of domestic abuse battery on his wife. After an internal administrative review and a pre-disciplinary hearing, the Denham Springs mayor, Gerard Landry, sent Captain Kistler a letter on April 7, 2016, advising him that his employment was terminated. Captain Kistler appealed the termination to the Board pursuant to La. R.S. 33:2561. Following an evidentiary hearing, the Board affirmed the termination with a four-to-one vote.
Captain Kistler filed a petition for judicial review with the district court, alleging that the City of Denham Springs (the City) did not terminate him within the time limits set forth in the Police Officer Bill of Rights, La. R.S. 40:2531(B)(7). He sought reversal of the Board's decision to terminate him, contending that it was arbitrary and capricious. The district court affirmed the Board's decision. Captain Kistler filed a motion for new trial, which the district court denied, and then he timely appealed the judgment to this court.
Captain Kistler named the City of Denham Springs, the DSPD, and the Municipal Fire and Police Civil Service Board as defendants in his petition for judicial review, but the Board is not a proper defendant in this appeal. See La. R.S. 33:2561(E) (The Board is served with the notice of appeal and must file the transcript with the district court.)
On appeal, Captain Kistler asserts three assignments of error. In his first assignment of error, he contends that his termination was untimely because it occurred more than sixty days after the only written complaint about his actions. In his second assignment of error, he contends that the Board erred in upholding his termination because he allegedly handled the domestic abuse case in accordance with the advice of legal counsel; he also contends that the Board should have imposed a lesser sanction. Lastly, in his third assignment of error, Captain Kistler contends that the district court erred in affirming the Board's decision because it was untimely and an abuse of discretion, or, alternatively, manifestly erroneous.
JURISDICTION
This court has a duty to examine its subject matter jurisdiction on its own motion, even when the issue is not raised by the litigants. Monterrey Center, LLC v. Ed.ucation Partners, Inc., 2008-0734 (La. App. 1 Cir. 12/23/08), 5 So.3d 225, 228-229. Appellate review of decisions by the Municipal Fire and Police Civil Service Boards resulting in a discharge or any corrective or disciplinary action is authorized pursuant to La. R.S. 33:2561(E). In Miazza v. City of Mandeville, 2010-0304 (La. 5/21/10), 34 So.3d 849 (per curiam), the supreme court recognized that the district court has subject matter jurisdiction to consider these appeals pursuant to La. R.S. 33:2561(E). When, as in this case, the legislature has vested appellate jurisdiction in the district court, the court of appeal lacks appellate jurisdiction over these matters. Id. In Miazza, the supreme court directed this court to convert the plaintiff's appeal of the district court's judgment to an application for a supervisory writ. Id.; see also Baton Rouge Police Dep't v. O'Malley, 2010-1386 (La. App. 1 Cir. 3/25/11), 64 So.3d 773, 774 n. 1. Since the supreme court's pronouncements in Miazza, this court on numerous occasions has converted appeals of this nature to applications for supervisory writs. See Sanders v. City of Mandeville Municipal Police Dep't, 2018-0125 (La. App. 1 Cir. 11/2/18), 2018 WL 5792011 (unpublished), and cases cited therein. Therefore, we convert Captain Kistler's appeal to an application for a supervisory writ and review the merits.
As stated earlier, Captain Kistler filed a motion for new trial after the district court affirmed the Board's decision. However, a motion for new trial is not an available procedural device when a district court is exercising appellate jurisdiction, particularly where, as here, the statute vesting the district court with appellate jurisdiction does not provide for a motion for new trial. See La. R.S. 33:2561E; see also La. C.C.P. art. 851 (limiting articles in Book II, which include provisions authorizing a motion for new trial, to ordinary proceedings). However, we elect to treat the motion for new trial as a timely-filed application for rehearing pursuant to La. C.C.P. art. 2166, and the converted writ application is timely. See Lightfoot v. Stalder, 2000-1120 (La. App. 1 Cir. 6/22/01), 808 So.2d 710, 717, writ denied, 2001-2295 (La. 8/30/02), 823 So.2d 957; Eicher v. Louisiana State Police, Riverboat Gaming Enforcement Division, 97-0121 (La. App. 1 Cir. 2/20/98), 710 So.2d 799, 803, writ denied, 98-0780 (La. 5/8/98), 719 So.2d 51.
APPLICABLE LAW
Louisiana Revised Statutes 33:2500 governs corrective and disciplinary actions for maintaining standards of service for fire and police departments in municipalities. The grounds for which the appointing authority may remove or discipline a tenured employee are set out in La. R.S. 33:2500. The pertinent parts of La. R.S. 33:2500(A) in this case provide that an employee may be removed for the following:
Fire and police civil service laws governing municipalities between 13,000 and 250,000 persons are found in La. R.S. 33:2471 through 2508. The civil service laws applicable to small municipalities and for parishes and fire protection districts with 7,000 or more persons but less than 13,000 persons are found in La. R.S. 33:2531 through 2568. In both sets of statutes, the provisions pertaining to the corrective and disciplinary action for maintaining standards of service, the appeal of such actions to the civil service board, and the right of appeal to the appropriate district court, are virtually identical. Therefore, the jurisprudence involving disciplinary actions imposed under La. R.S. 33:2560 and reviewed under La. R.S. 33:2561 is applicable to cases involving disciplinary actions imposed under La. R.S. 33:2500 and reviewed under La. R.S. 33:2501. See Miller v. City of Gonzales, 2015-1008 (La. App. 1 Cir. 8/31/16), 202 So.3d 1114, 1117 n. 2.
(1) Unwillingness or failure to perform the duties of his position in a satisfactory manner.
(2) The deliberate omission of any act that it was his duty to perform.
(3) The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.
. . .
(15) Any other act or failure to act which the board deems sufficient to show the offender to be an unsuitable or unfit person to be employed in the respective service.
A regular employee in the classified service who feels that he has been discharged without just cause may demand a hearing and investigation by the Board to determine the reasonableness of the action. La. R.S. 33:2501(A). The Board may, if the evidence is conclusive, affirm the action of the appointing authority. La. R.S. 33:2501(C)(1); O'Malley, 64 So.3d at 776. If it finds that the action was not taken in good faith for cause, the Board shall order the immediate reinstatement or reemployment of such person. La. R.S. 33:2501(C)(1). However, absent the Board's finding of bad faith on the part of the appointing authority, the Board is without authority to modify the appointing authority's actions. O'Malley, 64 So.3d at 776. The Board is not vested with the authority to modify or set aside the decision of an appointing authority merely because the Board disagrees with that decision or finds it too harsh. Id.
The imposition of disciplinary action against a police officer does not occur in "good faith" if the appointing authority acted arbitrarily or capriciously, or as the result of prejudice or political expediency. "Arbitrary or capricious" means the lack of a rational basis for the action taken. Shields v. City of Shreveport, 579 So.2d 961, 964 (La. 1991); O'Malley, 64 So.3d at 776. The appointing authority must prove its case by a preponderance of the evidence. Shields, 579 So.2d at 964; O'Malley, 64 So.3d at 776.
STANDARD OF REVIEW
As discussed earlier, an employee dissatisfied with the Board's decision may appeal to the district court. See La. R.S. 33:2561(E). The district court's review of the Board's quasi-judicial administrative determination is an exercise of appellate jurisdiction and does not include a trial de novo. O'Malley, 64 So.3d at 776. The district court's review is confined to the determination of whether the decision made by the Board was made in good faith for cause under the provisions of La. R.S. 33:2471-2508. See La. R.S. 33:2501(E)(3). The district court may not substitute its opinion for that of the Board. The district court should accord deference to a civil service board's factual conclusions and must not overturn them unless they are manifestly erroneous. O'Malley, 64 So.3d at 776-777. Additionally, as the finder of fact which personally observed the witnesses, the Board's credibility determinations are entitled to great weight. Miller v. City of Gonzales, 2015-1008 (La. App. 1 Cir. 8/31/16), 202 So.3d 1114, 1118.
Likewise, the intermediate appellate court's review of a civil service board's findings of fact are limited. Moore v. Ware, 2001-3341 (La. 2/25/03), 839 So.2d 940, 946. Those findings are entitled to the same weight as findings of fact made by a district court and are not to be overturned in the absence of manifest error. Moore, 839 So.2d at 946; O'Malley, 64 So.3d at 777. Further, mixed questions of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. O'Hern v. Dep't of Police, 2013-1416 (La. 11/8/13), 131 So.3d 29, 33 (per curiam).
BOARD'S FINDINGS OF FACT
The Board issued written findings of fact, and we summarize the pertinent findings as follows. The Board initially noted that La. R.S. 46:2140(B)(2) and La. C.Cr.P. art. 211.1 require that an arrest be made in cases of a domestic abuse battery, especially when officers are concerned about the victim's safety. On October 8, 2015, the DSPD promulgated an official policy that a "physical arrest WILL be effected" when there is probable cause to believe that a domestic violence offense has occurred. That policy also stated that if extenuating circumstances existed that necessitated variance from the regular procedures, the variance had to be approved by a member of the DSPD administration, which included the lieutenant, captain, or chief of police, and had to be documented on the appearance bond with the verbiage "As per." After the policy was promulgated, DSPD officers consistently made physical arrests of domestic abuse battery suspects as opposed to issuing summons. Around the same time frame, Denham Springs City Court stopped accepting domestic abuse battery cases and those cases began to be prosecuted in the Twenty-First Judicial District Court for Livingston Parish. In December of 2015, Captain Kistler gave a legal updates class to DSPD in which he taught the officers that the law and DSPD's policy required a physical arrest in domestic abuse battery cases.
The Board referred to La. R.S. 46:2140(A)(2), but the correct section is B, and it states:
If a law enforcement officer has reason to believe that a family or household member or dating partner has been abused, and the abusing party is not in violation of a restraining order, a preliminary or permanent injunction, or a protective order, the officer shall immediately use all reasonable means to prevent further abuse, including:
. . .
(2) Arresting the abusive party in case of any misdemeanor crime which endangers the physical safety of the abused person whether or not the offense occurred in the presence of the officer. If there is no cause to believe there is impending danger, arresting the abusive party is at the officer's discretion.
Louisiana Code of Civil Procedure article 211.1(A) provides that when a peace officer stops a person who has an outstanding warrant for failing to appear in court on a misdemeanor offense, the officer in his discretion may issue a summons based on the warrant in lieu of making an arrest under certain circumstances; however, the provisions of article 211.1 do not apply to "[a]ny offense involving the use of force or violence, except the crime of simple battery unless the warrant or attachment indicates that the battery was prosecuted as a domestic abuse battery as defined in R.S. 14:35.3." La. C.Cr.P. art. 211.1(C)(1)(c). Domestic abuse battery is the intentional use of force or violence committed by one household member or family member upon the person of another household member or family member. La. R.S. 14:35.3(A).
At 2:15 a.m. on Friday, January 15, 2016, Robyn Davis, the wife of Denham Springs City Council Member Chris Davis, called the DSPD complaining of physical injury. When police officers arrived at the Davis residence, Mrs. Davis had a bruise on her forehead that was not there when they had seen her earlier in the evening. Councilman Davis was no longer at the residence and the officers could not locate him. The responding officers and other officers who became involved were concerned for Mrs. Davis' safety. These officers believed that probable cause existed that Councilman Davis had committed the misdemeanor crime of domestic abuse battery upon his wife in violation of La. R.S. 14:35.3. The investigating officers applied for an arrest warrant for Councilman Davis and the City Court Judge found that probable cause existed for an arrest for the violation of La. R.S. 14:35.3. Captain Kistler agreed with their decision to seek this arrest warrant and was aware of its issuance.
Law enforcement had two previous encounters with the Davises. Police officers had been called to the Davis residence around 10:32 p.m. on January 14, 2016, and then at 1:30 a.m. on January 15, 2016, the Davises went to the police station.
During the day on January 15, 2016, while Councilman Davis was avoiding the DSPD, there were communications among Councilman Davis; Captain Kistler; Scott Jones, DSPD Chief; and D. Blayne Honeycutt, the Denham Springs City Court prosecutor and assistant district attorney for the Twenty-First Judicial District Court. Mr. Honeycutt normally did not get involved in DSPD decisions as to arrests and Captain Kistler's contact with him was highly unusual. Mr. Honeycutt told Captain Kistler that he would have to use his best judgment as to whether to issue a summons to Councilman Davis because Mr. Honeycutt was unfamiliar with the law of arrest and was unable to immediately research the issue of whether an arrest was legally required.
Around 5:20 p.m. on January 15, 2016, after several phone calls between Chief Jones and Councilman Davis and corresponding calls between Chief Jones and Captain Kistler, Mrs. Davis went to DSPD headquarters and revised her account of earlier events. She essentially said that Mr. Davis' actions were accidental. In its findings, the Board commented that domestic abuse victims often recant their initial accounts of domestic abuse to protect their abuser. This behavior is well-known to the entire law enforcement community, including Captain Kistler and Chief Jones.
The time of 4:00 p.m. is stated in the Board's findings, but an officer's narrative states that she came in at 5:20 p.m.
At 5:59 p.m. on January 15, 2016, Chief Jones sent a text message to Mayor Landry stating that Mr. Honeycutt told them not to arrest Councilman Davis on the warrant but to issue him a citation. The Board found no evidence that either Captain Kistler or Chief Jones actually talked to Mr. Honeycutt between the time Mrs. Davis recanted her story and the time Chief Jones sent the text. On the morning of January 16, 2016, Mayor Landry had a phone conversation with Chief Jones where Mayor Landry expressed his concern about any appearance of impropriety because Mr. Davis was on the city council. Mayor Landry ordered Chief Jones to "follow the letter of the law."
On Monday, January 18, 2016, Captain Kistler issued a misdemeanor summons to Councilman Davis in lieu of arresting him. The summons required Councilman Davis to appear in Denham Springs City Court although all domestic abuse batteries were being prosecuted in the district court. The Board rejected Captain Kistler's contention that he was concerned about the probable cause for the warrant in that he believed the facts contained in the original police report were insufficient to support a finding of probable cause. The Board also rejected his contention that any probable cause that existed "evaporated" when Mrs. Davis changed her account of the incident, such that arresting Mr. Davis might expose the city to a lawsuit and damages. The arrest warrant issued by the Denham Springs City Court was never executed.
The summons bears the date of January 19, 2016, but Captain Kistler testified that he actually issued it on January 18, 2016.
According to the Board, the police report that included Mrs. Davis' original statement and an officer narrative were sufficient for the City Court judge to find probable cause to issue a warrant. The Board reiterated that Captain Kistler originally agreed with the decision to issue the warrant. It noted that Captain Kistler admitted that probable cause was necessary to issue the summons to Councilman Davis, which would contradict his statement that he believed probable cause had "evaporated."
On or about January 28, 2016, Mayor Landry received an anonymous complaint letter dated January 26, 2016, about the handling of the Davis matter. The letter primarily dealt with Councilman Davis' alleged history of abuse and an alleged concern for Mrs. Davis' safety. It contained several sentences accusing Chief Jones and the DSPD of covering up Councilman Davis' conduct, but it did not mention Captain Kistler specifically. The Board found that this letter was not a "formal written complaint" against Chief Jones pursuant to La. R.S. 40:2531(B)(7). Because the anonymous letter contained a "cc" indicating the media was also a recipient, Mayor Landry called Chief Jones and Captain Kistler to a meeting in his office on January 28, 2016, to discuss his response if he was contacted by the media about the letter. Denham Springs City attorney Stephanie Bond Hulett also attended the meeting. The meeting was not for the purpose of disciplining Chief Jones or Captain Kistler, and the Board did not conclude that the investigation of Captain Kistler's conduct began with the meeting.
On February 5, 2016, Matthew Belser, an Assistant District Attorney for the Twenty-First Judicial District Court, filed a "Motion to Issue Arrest Warrant" wherein he requested that the district court issue a warrant to arrest Councilman Davis for committing domestic abuse battery in violation of La. R.S. 14:35.3. The motion stated, in pertinent part:
The State of Louisiana submits that the issuance of the misdemeanor summons in the instant case was contrary to law and insufficient. Pursuant to Louisiana Code of Criminal Procedure article 211.1, a law enforcement officer is permitted to issue a summons in lieu of arrest on a misdemeanor, unless the offense is for domestic abuse battery as defined in [La.] R.S. 14:35.3. Furthermore, the issuance of the misdemeanor summons further denies the victim in this case of the protection of a protective order as a condition of bail in accordance with Louisiana Code of Criminal procedure Article 335.1.
(Footnote added.)
Louisiana Code of Criminal Procedure article 335.1, which was in effect when Mr. Belser filed the motion, was repealed by 2016 La. Acts, No. 613, § 4, effective January 1, 2017.
Mayor Landry eventually saw Mr. Belser's motion, and at that point, on February 17, 2016, initiated an investigation into the conduct of Chief Jones and Captain Kistler. He formed an investigative committee, which provided him with its findings and conclusions on April 1, 2016. Based on these findings and conclusions, Mayor Landry issued Captain Kistler a notice of a pre-disciplinary hearing. The hearing was held on April 4, 2016, and on April 7, 2016, Mayor Landry gave Captain Kistler written notice of termination, effective that day.
The Board concluded that Captain Kistler knowingly failed to perform his duties as captain of DSPD. Specifically, he ignored DSPD policy, the January 15, 2016 arrest warrant, the concerns of the investigating officers, and Louisiana law when he issued Councilman Davis a summons instead of arresting him. The Board also determined that no extenuating circumstances existed to depart from the DSPD policy of arresting suspects in domestic abuse cases. The Board found that the Mayor was warranted in terminating Captain Kistler pursuant to La. R.S. 33:2560(A)(1) ("[u]nwillingness or failure to perform the duties of his position in a satisfactory manner"); 33:2560(A)(2) ("[t]he deliberate omission of any act that it was his duty to perform"); 33:2560(A)(3) ("[t]he commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy"); and 33:2560(A)(15) ("[a]ny other act or failure to act which the board deems sufficient to show the offender to be an unsuitable or unfit person to be employed in the ... police service").
TIMELINESS
In Captain Kistler's first assignment of error, he contends that his termination was untimely. The Police Officers' Bill of Rights applies to law enforcement officers "who are under investigation with a view to possible disciplinary action, demotion, or dismissal." La. R.S. 40:2531(A). Louisiana Revised Statutes 40:2531(B)(7) states, in pertinent part:
When a formal, written complaint is made against any police employee or law enforcement officer, the superintendent of state police or the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days.
Captain Kistler contends that the investigation in this case began with the anonymous letter of January 26, 2016, which prompted Mayor Landry to meet with Ms. Hulett, Chief Jones, and Captain Kistler, and was not completed within sixty days of this letter, citing La. Att'y Gen. Op. No. 07-0073 (July 12, 2007). The Board rejected this contention, and we find no error in the Board's determination that the anonymous letter did not constitute a "formal, written complaint" as required by La. R.S. 40:2531(B)(7). The letter did not name Captain Kistler specifically, and, as Mayor Landry testified, his only concern was his response to the media on the matter when he met with Captain Kistler, Chief Jones, and Ms. Hulett to discuss the letter. Mayor Landry testified that at that time, he was not even aware of any alleged impropriety by Chief Jones or Captain Kistler. (TR 91-94). Investigation into Captain Kistler's conduct did not begin until February 17, 2016, when Mayor Landry formed an investigatory committee, and was concluded with Captain Kistler's termination on April 7, 2016, within the required sixty-day time period. Therefore, Captain Kistler's first assignment of error has no merit.
Although Attorney General opinions are merely advisory and not binding, the courts of this State have recognized their persuasive authority. City of New Orleans v. Bd. of Directors of Louisiana State Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 753 n. 11. In the opinion relied on by Captain Kistler, the Attorney General concluded that an investigation pursuant to La. R.S. 40:2531 and 33:2186 begins when an authorized person begins to make inquiry or collect evidence concerning a situation with an officer where the end result is with a view to possible disciplinary action, demotion, or dismissal. La. Att'y Gen. Op. No. 07-0073 (July 12, 2007).
DISCIPLINARY ACTION
Captain Kistler contends in his second assignment of error that his termination was unwarranted because he handled the Davis matter according to advice from the city's legal counsel and that termination was too severe a penalty. Captain Kistler points out that the officers obtained the warrant without informing the court that Mrs. Davis no longer wanted to file charges against her husband, which caused him to believe the warrant was wrongfully obtained. He also argues that Mr. Honeycutt told him to use his best judgment in deciding whether to arrest Councilman Davis or issue a summons.
We have carefully reviewed the full record of the evidentiary hearing before the Board and, as did the district court, find the Board's decision was made in good faith for cause. The Board rejected Captain Kistler's assertion that he issued a summons based on Mr. Honeycutt's advice and accepted Mr. Honeycutt's testimony that he did not advise Captain Kistler to issue a summons. The Board's credibility determinations are entitled to great weight. Miller, 202 So.3d at 1118.
In issuing a summons instead of arresting Councilman Davis, Captain Kistler failed to comply with DSPD policy, with an arrest warrant issued by a City Court judge, and with criminal statutes and code articles concerning domestic violence offenses. As a police officer in a leadership position, Captain Kistler had instructed other officers as to the policy of arresting domestic abusers. Moreover, while DSPD policy did provide an exception to arrest where extenuating circumstances existed, Mrs. Davis' subsequent statement that she did not want her husband arrested would not serve as an extenuating circumstance. The testimony at the hearing established that Captain Kistler and the other police officers were aware that domestic abuse victims often recanted their statements, and these policies requiring arrest existed to provide for the safety of victims. We find that the Board acted in good faith for cause in affirming Captain Kistler's termination. Captain Kistler's second assignment of error has no merit.
Captain Kistler's third assignment of error is a recapitulation of the arguments in his first two assignments of error, which, as we have discussed, have no merit.
CONCLUSION
For the foregoing reasons, we convert Steve Kistler's appeal to an application for a supervisory writ and deny the writ, hereby maintaining the decision of the City of Denham Springs Fire and Police Civil Service Board and the judgment of the district court in upholding the termination for cause of Steve Kistler's employment with the Denham Springs Police Department. Costs of this appeal are assessed against Steve Kistler.
APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; WRIT DENIED.
STEVE KISTLER
VERSUS
CITY OF DENHAM SPRINGS, ET AL.
NO. 2018 CA 0249
CRAIN, J., concurring.
Louisiana Revised Statute 33:2561E vests the district court with appellate jurisdiction over civil service board decisions and sets forth the procedure for appealing such decisions. That statute contains no authorization for a motion for new trial or a request for rehearing. Absent express legislative authorization, I do not believe this court can selectively choose certain provisions from Book III of the Code of Civil Procedure—limited to "appeals to the supreme court and the courts of appeal"—to incorporate a request for rehearing into this appeal to a district court. See La. Code Civ. Pro. arts. 2081 and 2166. Because filing the motion for new trial had no legal effect, the original August 21, 2017 judgment is controlling, rendering the converted writ application untimely. See Rule 4-3, Uniform Rules, Courts of Appeal; Tower Credit, Inc. v. Bradley, 15-1164 (La. App. 1 Cir. 4/15/16), 194 So. 3d 62, 65. Nevertheless, because denying supervisory review is a decision to not exercise jurisdiction, I concur in the denial, believing the reasons issued are not a considered opinion and are without effect. See Maloney Cinque, L.L.C. v. Pacific Insurance Company, Ltd., 10-1164 (La. 5/21/10), 36 So. 3d 236; Davis v. Jazz Casino Co., 03-0276 (La. 6/6/03), 849 So. 2d 497, 498 (per curiam); Bulot v. Intracoastal Tubular Services, Inc., 02-1035 (La. 6/14/02), 817 So. 2d 1149; Florida Gas Transmission Co., LLC v. Texas Brine Company, LLC, 17-0304 (La. App. 1 Cir. 12/6/18), ___ So. 3d ___, ___ n.3 (2018WL6428075).