Opinion
2013 CA 1774
07-30-2014
RICKEY LEE WHITAKER AND MARIA WHITAKER v. PETERBILT OF LOUISIANA, LLC, PARKER-HANNIFIN CORPORATION, DANA CORPORATION, CHELSEA HYDRAULICS, A/K/A CHELSEA PRODUCTS DIVISION A/K/A CHELSEA PTO DIVISION, BUYERS PRODUCTS COMPANY, ROPER PUMP COMPANY, TEXON OPERATING, LLC AND EPCO, INC. A/K/A ENTERPRISE TRANSFORATION COMPANY
Michael G. Daiy Thomas R. Hightower, Jr. Patrick Wade Kee Thomas R. Hightower, III Lafayette, Louisiana Attorneys for Plaintiffs/Appellees, Rickey and Maria Whitaker J. Roumain Peters, III Louis P. Bonnaffons Lauren Fajoni Bartlett New Orleans, Louisiana Attorneys for Defendants/Appellants, EPCO, Inc., National Union Fire Insurance Company, and J. Roumain Peters, III Willie G. Johnson, Jr. Baton Rouge, Louisiana Attorney for Intevenor, Old Republic Life Insurance Company Edward P. Landry New Iberia, Louisiana and Edward Landry Beaumont, Texas Attorneys for Defendants, Chelsea Hydraulics, A Division of Parker Hannifin Corporation, and Parker Hannifin Corporation Emily E. Eagan Mark T. Mahfouz New Orleans, Louisiana Attorneys for Defendant, Texon Operating, LLC Richard S. Vale Metairie, Louisiana Attorney for Defendant, Peterbilt of Louisiana, LLC Michael W. Adley Lafayette, Louisiana Attorney for Defendant, Roger Pump Company Bryan D. Scofield Lafayette, Louisiana Attorney for Defendant, Buyers Products Company Richard S. Vale Pamela Noya Molner Metairie, Louisiana Attorneys for Defendant, St. Paul Fire and Marine Insurance Company
NOT DESIGNATED FOR PUBLICATION On Appeal from the
16th Judicial District Court
In and for the Parish of St. Mary
State of Louisiana
Trial Court No. 119,613
The Honorable Lori A. Landry, Judge Presiding Michael G. Daiy
Thomas R. Hightower, Jr.
Patrick Wade Kee
Thomas R. Hightower, III
Lafayette, Louisiana
Attorneys for Plaintiffs/Appellees,
Rickey and Maria Whitaker
J. Roumain Peters, III
Louis P. Bonnaffons
Lauren Fajoni Bartlett
New Orleans, Louisiana
Attorneys for Defendants/Appellants,
EPCO, Inc., National Union Fire
Insurance Company, and J. Roumain
Peters, III
Willie G. Johnson, Jr.
Baton Rouge, Louisiana
Attorney for Intevenor,
Old Republic Life Insurance
Company
Edward P. Landry
New Iberia, Louisiana
and Edward Landry
Beaumont, Texas
Attorneys for Defendants,
Chelsea Hydraulics, A Division of
Parker Hannifin Corporation, and
Parker Hannifin Corporation
Emily E. Eagan
Mark T. Mahfouz
New Orleans, Louisiana
Attorneys for Defendant,
Texon Operating, LLC
Richard S. Vale
Metairie, Louisiana
Attorney for Defendant,
Peterbilt of Louisiana, LLC
Michael W. Adley
Lafayette, Louisiana
Attorney for Defendant,
Roger Pump Company
Bryan D. Scofield
Lafayette, Louisiana
Attorney for Defendant,
Buyers Products Company
Richard S. Vale
Pamela Noya Molner
Metairie, Louisiana
Attorneys for Defendant,
St. Paul Fire and Marine Insurance
Company
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
DRAKE, J.
J. Roumain Peters, III (Appellant), one of the attorneys for defendants EPCO, Inc. (EPCO) and National Union Fire Insurance Company (National Union), appeals the trial court's judgment ordering sanctions against him arising out of discovery violations that occurred in the underlying personal injury claim filed by plaintiffs, Ricky and Maria Whitaker. EPCO and National Union are not parties to this appeal, as all of the claims in the underlying action have been compromised and settled. The plaintiffs have dismissed their claims against all defendants. The only matter before the court is the sanctions issue against Appellant. For the reasons stated herein, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
This matter originally began as a tort suit filed by plaintiffs against numerous defendants, arising out of a January 19, 2008 accident in which Rickey Whitaker lost his right arm. Whitaker, who owned his own truck, was transporting condensate as an independent contractor, at the request of EPCO, at the time of the accident. On January 21, 2008, within forty-eight (48) hours of the accident, Richard Bobrik, EPCO's field safety representative, visited Whitaker in the hospital and brought an "Accident/Incident Review" (Accident Review) form with him to ask Whitaker about the accident. Bobrik wrote down the answers to the questions on the form, because Whitaker could not write due to his missing right hand. During a subsequent motion to compel hearing, the trial court noted that Whitaker was on medication at the time of the questioning and without anyone else present.
On December 3, 2010, plaintiffs sent discovery to numerous defendants. EPCO responded on January 20, 2011. Request for Production No. 6 stated:
Although the record contains the interrogatories sent and answers thereto, the requests for production of documents and answers thereto are not contained in the record. Appellant refers to Record 472, Exhibit I, which only contains EPCO's answers to interrogatories. However, both parties agree that the discovery was sent and answered.
REQUEST FOR PRODUCTION NO. 6The interrogatories sent by plaintiffs, and responses thereto, contained the following:
Produce all statements pertaining to the accident of Rickey Lee Whitaker.
RESPONSE TO REQUEST FOR PRODUCTION NO. 6
Respondent objects to this request as it calls for documents protected from discovery pursuant to the attorney/client privilege or was prepared in anticipation of litigation. Without waiving said objection, Respondent has no recorded statements. See attached Privilege Log.
INTERROGATORY NO. 3:
Please identify all the facts and documents as to of [sic] Mr. Whitaker's accident that occurred on Peterbilt's Tractor on or about the [sic] January 19, 2008 and the events that you believed to be direct and/or indirect contributing factors. (Emphasis added).
ANSWER TO INTERROGATORY NO. 3:
Respondent objects to Interrogatory No. 3 as same calls for a legal conclusion. Without waiving said objection, respondent notes:
EPCO, Inc. previously produced documents Bates stamped EPCO-00001 through EPCO-01453. Additionally, see attached Privilege Log.
Additionally, under current information and belief, Mr. Whitaker was attempting to close the latch pin on the hose, was bending down, and his knee gave out causing him to fall forward. As a result of plaintiff falling forward, his glove got caught in the product pump, resulting in the injury.
INTERROGATORY NO. 25:
Please state all facts which you contend gave rise to the [sic] Mr. Whitaker's accident and any injured personnel herein sued upon, the identity, address and telephone number of the sources of these facts.
ANSWER TO INTERROGATORY NO. 25:
Please see Answers to Interrogatory No. 3. The source of that information is Mr. Whitaker.
The Privilege Log referred to by EPCO in its responses to discovery, provides in pertinent part:
1. January 21, 2008 Accident/Incident Review of Enterprise Transportation Company—anticipation of litigation.
Between January 20, 2011, and August 2012, Appellant claims that no party made a formal demand for the document referred to in the Privilege Log. Several other defense counsel requested that the document be produced. In a letter dated August 16, 2012, Appellant withdrew its privilege with regard to the January 21, 2008 Accident Review, as well as other documents. Although none of the attachments to the August 16, 2012 letter are included in the record, presumably the documents were forwarded to all parties, including the plaintiffs.
Following receipt of the documents which had previously been withheld, plaintiffs filed a Motion for Sanctions and Motion to Compel on October 22, 2012. Plaintiffs complained that EPCO improperly asserted a privilege, mischaracterized certain documents, and withheld those documents, which were clearly discoverable, in violation of La. C.C.P. art. 1424(C). Plaintiffs also claimed that EPCO proceeded to take two depositions of Rickey Whitaker before turning over the Accident Review. During one of those depositions, plaintiffs' attorney asked Appellant if EPCO had a statement from Whitaker, but Appellant evaded the question. Bobrik admitted in deposition testimony that he signed the name of "Rickey Whitaker" on the Accident Review, since Whitaker had no arm with which to write. Bobrik took down what Whitaker said in an attempt to determine what had happened during the accident. Plaintiffs also sought a motion to compel the continuation of the deposition of Bobrik, who had been instructed not to answer questions regarding the Accident Review. Plaintiffs alleged that the conduct of two attorneys, Appellant and Louis Bonnaffons, was improper during the deposition of Bobrik, which included instructing the witness not to answer certain questions in violation of La. C.C.P. art. 1443 and improper objections.
On January 24, 2013, the trial court held a hearing on several motions, including the motion to compel, a motion to quash, and a separate hearing on the motion for sanctions. During the motion to quash, the trial court determined that the statement was admissible, so as not to prejudice the other parties. However, the trial court emphasized that the plaintiff could obtain testimony as to the entire circumstances of the taking of the statement, such as Whitaker's being on medication and having no one else present on his behalf.
Although the motion to quash is not contained in the record, the trial court did hold a hearing and it is evident that the plaintiffs were attempting to quash the statement of Whitaker, based upon the statement not being produced timely.
On the same day, the trial court held a separate hearing on the motion for sanctions. The trial court indicated that it agreed with the plaintiffs with regard to the Accident Review being a statement and being improperly withheld. Appellant admitted at the hearing that he signed the Privilege Log claiming that the Accident Review was privileged and that he first included the Accident Review on the Privilege Log in October 2009 in response to a subpoena duces tecum from another defendant. The trial court also discussed the request by the plaintiffs' attorney during Whitaker's deposition on June 16, 2011, with regard to whether EPCO had a statement from Whitaker. At the hearing, the trial court gave its opinion as to the particular unethical behavior of the Appellant and a second EPCO attorney. Appellant responded as follows:
I understand, Your Honor. I think that kind of puts me in a difficult position. I mean, I certainly made my arguments in my brief. I don't think I've done anything unethical. I apologize to the Court for that. But if I'm being reported and looking at a sanction hearing and losing my law license, I'd rather not say anything more right now and just leave it at that, Your Honor.
The trial court determined that it would read the relevant deposition testimony, would allow plaintiffs' attorney to submit its fees for filing the motion before the court, and would allow Appellant to respond to the deposition testimony. On February 15, 2013, the trial court issued its judgment ordering, among other things, that Appellant individually pay the attorney's fees and court costs associated with the Motion for Sanctions and Motion to Compel. The amount of attorney's fees payable was set at $10,575. The trial court also found that after the plaintiffs' attorney requested any statement EPCO had from Whitaker during the deposition of Bobrik, "the tone certainly changed." Therefore, she ordered that the deposition of Bobrik be completed. Appellant appeals the February 15, 2013 judgment.
ERRORS
The Appellant alleges that the trial court erred in sanctioning him, claiming that the trial court lacked the statutory authority to do so, that the trial court circumvented the discovery rules, and that the trial court deprived him of due process, since he was never individually served with the motion for sanctions nor given at least forty-eight (48) hours to provide his defense, as required by the contempt rules.
ANAYLSIS
A trial court's determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Slaughter v. Bd. of Sup'rs of S. Univ. & Agr. & Mech. Coll., 10-1114 (La. App. 1 Cir. 8/2/11), 76 So. 3d 465, 469, writ denied, 11-2112 (La. 1/13/12), 77 So. 3d 970.
Appellant claims that the document at issue, the Accident Review, was prepared in anticipation of litigation and not discoverable. Appellant also claims that reasonable minds can disagree as to whether the document is actually a statement of a party. In his brief, Appellant argues that the issue is not whether the document is a statement, but whether he had a reasonable belief that the document was prepared in anticipation of litigation at the time he signed the Privilege Log. We disagree. Statement of a Party
Appellant maintains that the Accident Review was not a statement of Whitaker, since it was written by Bobrik. Louisiana Code of Civil Procedure article 1424(B) specifically provides:
B. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. ... If the request is refused, the person may move for a court order. The provisions of Article 1469(4) apply to the award of expenses incurred in relation to the motion. For purposes of this Paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electronically stored, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
Appellant claims that despite La. C.C.P. art. 1424(B), it is entitled to withhold certain information pursuant to La. C.C.P. art. 1424(A), which establishes the "attorney work-product rule," generally prohibiting courts from ordering "the production or inspection of any writing ... obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial." However, that prohibition does not apply when the court is "satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice." The purposes of the work-product rule are both to provide an attorney a "zone of privacy" within which he is free to evaluate and prepare his case without scrutiny by his adversary and to assist clients in obtaining complete legal advice. Hodges v. Southern Farm Bureau Casualty Insurance Co., 433 So.2d 125, 131-32 (La. 1983). Moreover, the privilege created by the work-product doctrine is qualified, not absolute. Id. at 131.
It is well settled under Louisiana law that the discovery statutes are to be liberally and broadly construed to achieve their intended objectives. louisiana Workers' Comp. Corp. v. Quality Exterior Servs., L.L.C., 11-1197 (La. App. 1 Cir. 5/2/12), 92 So. 3d 1034, 1036. Thus, they should be liberally construed to allow discovery whenever possible. Royal Am. Corp. v. Republic Sec. Corp., 392 So. 2d 98, 99 (La. App. 1 Cir. 1980). The party seeking to avoid discovery of documents on the grounds that they were prepared or obtained in anticipation of litigation or in preparation for trial bears the burden of proving that the exception applies. Ogea v. Jacobs, 344 So. 2d 953, 955 (La. 1977); Sonier v. louisiana Power & Light Co., 272 So. 2d 32, 35-36 (La. App. 1 Cir. 1973). Louisiana courts have developed the following two-part inquiry for determining whether documents should be excepted from discovery under the attorney work-product rule: (1) Were the documents obtained or prepared in anticipation of litigation or in preparation for trial? and (2) If so, will the party seeking production be unfairly prejudiced or subject to undue hardship or injustice by denial of the discovery request? Whittenburg v. Zurich Am. Ins. Co., 00-2697 (La. App. 4 Cir. 4/18/01), 786 So. 2d 163, 166.
We find that given the language of La. C.C.P. art. 1424(B), this court does not need to inquire into whether the attorney work-product rule applies. The legislature has already determined that the statement of a party is discoverable, even if transcribed by another person. The document at issue was written by Bobrik, an employee of EPCO, after speaking to Whitaker in the hospital. However, much of the information on the document is what Whitaker told Bobrik about the accident. Bobrik testified that some of the responses on the Accident Review were exactly what Whitaker said. Bobrik did no investigation, other than speaking to Whitaker. Some of the information on the form is Bobrik's impressions, but he did listen to Whitaker and wrote down what Whitaker said. Appellant argues that because the Accident Review contains the words of Bobrik, it is "work product" or prepared in "anticipation of litigation." As to the words on the document that were Bobrik's, Louisiana courts have held this information to be discoverable as follows:
In Ogea v. Jacobs, 344 So. 2d 953 (La. 1977), this court held that the written opinion of an employee who was neither an attorney nor an expert was not protected from discovery under the "mental impression" provision of La. Code Civ. P. art. 1424. Therefore, we conclude that if the audiotapes contain any mental impressions, conclusions, opinions, or theories of the investigator, then those impressions are not immune from disclosure pursuant to 1978 La. Acts 686, § 2 or La. Code Civ. P. art. 1424.Whittenburg, 786 So. 2d at 166 (quoting Landis v. Moreau, 00-1157 (La. 2/21/01), 779 So. 2d 691, 697). There is no evidence in the record that Bobrik was an attorney or an expert.
In the present case, the Accident Review does not fall under the provisions of Louisiana Code of Civil Procedure article 1424(A), which permits the withholding of documents prepared in anticipation of litigation. Although the document was prepared by an employee of EPCO, nothing in the record indicates that it was obtained or prepared "in anticipation of litigation or in preparation for trial." The document contains the words of a party taken within forty-eight (48) hours of the accident while that party was hospitalized for an amputated arm. Even though Bobrik wrote the words, he admitted he wrote down what Whitaker said. There is no evidence that Bobrik received information from any source other than Whitaker. Furthermore, the portions of the Accident Review that contain Bobrik's own impressions are also discoverable. See Whittenburg, 786 So. 2d at 166. A party seeking to avoid production of a writing otherwise discoverable bears the burden of proving that it was prepared or obtained in anticipation of litigation or in preparation for trial. Ogea, 344 So. 2d at 955. Appellant did not prove at the trial court that the Accident Review was "work product" or prepared in "anticipation of litigation." Therefore, the trial court correctly held that Appellant withheld discoverable information. Can the Trial Court Sanction an Attorney without a Violation of a Court Order?
Appellant claims that the trial court lacked the statutory authority to render sanctions against him, since this matter involved a discovery dispute, and no discovery order was ever entered or violated. Appellant refers to a statement by the trial court during earlier proceedings that sanctions were imposed for "professional, legal and ethical violations" that occurred during the discovery stage of litigation, and that it did not sanction Appellant for violations of either La. C.C.P. arts. 863 or 1420. However, this court renders decisions from judgments, not reasons for judgment. Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So. 3d 507, 572. We find that the record supports that the behavior of Appellant was sanctionable pursuant to either La. C.C.P. art. 863 or La. C.C.P. art. 1420, which state, in pertinent part:
Although Appellant refers to an earlier order of the trial court originally denying Appellant an appeal, the language to which he refers are actually the reasons for denying the appeal.
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A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.La. C.C.P. art. 863.
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D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
A. Every request for discovery, or response or objection thereto, made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state his address.La. C.C.P. art. 1420.
B. The signature of an attorney or party constitutes a certification by him that he has read the request, response, or objection and that to the best of his knowledge, information, and belief formed after reasonable inquiry the request, response, or objection is:
(1)Consistent with all the rules of discovery and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
(2)Not interposed for any improper purpose, such as to harass or to cause unnecessary or needless increase in the cost of litigation; and
(3)Not unreasonable, unduly burdensome, or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
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D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the request, response, or objection, including a reasonable attorney's fee.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
The trial court was well within its authority to sanction an attorney for certifying a pleading or discovery document that violated either La. C.C.P. art. 863 or La. C.C.P. art. 1420, even on its own motion. Given La. C.C.P. art. 1424(B), we do not find that appellant could have had a reasonable good faith belief that the statement of a party was not discoverable. The obligation imposed upon litigants and their counsel who sign a document is to make an objectively reasonable inquiry into the facts and law. Subjective good faith will not satisfy the duty of reasonable inquiry. Murphy v. Boeing Petroleum Services, Inc., 600 So. 2d 823, 826 (La. App. 3 Cir. 1992); Barry W. Miller, A Professional Law Corp. v. Poirier, 580 So. 2d 558, 560 (La. App. 1 Cir. 1991). Louisiana Code of Civil Procedure article 1420 permits the imposition of sanctions whether the violation was done in good faith or not. Moffett v. Moffett, 10-1364 (La. App. 3 Cir. 6/22/11), 67 So. 3d 1287, 1291.
Appellant argues that Whitaker had to file a motion to compel and obtain a court order for Appellant to be sanctioned. Louisiana Code of Civil Procedure article 1424(B) permits a party to file a motion to compel if a statement of a party is withheld. However, La. C.C.P. art. 1424(B) does not mandate that a motion to compel be filed, as it uses the language, "If the request is refused, the person may move for a court order." Appellant had a duty to respond appropriately to the discovery requests for any statement of Whitaker. We also agree with Whitaker that EPCO responded that it had no statements, and the identity of the document as an "Accident/Incident Review" did not indicate that EPCO possessed a statement of Whitaker, which would have prompted a motion to compel. The trial court had the authority to impose sanctions upon Appellant after a hearing. La. C.C.P. arts. 863(E) or 1420(E). A hearing was held, as required by La. C.C.P. arts. 863(E) or 1420(E). Therefore, the trial court had statutory authority to sanction Appellant. Lack of Service
Appellant claims that the trial court improperly sanctioned him, since he was never personally served with the Motion for Sanctions. The Motion for Sanctions and Motion to Compel requested service upon EPCO, Inc., through his attorney of record, Appellant. Article 863 and Article 1420 require an attorney to sign a document in his "individual name." Sanctions may be imposed on "the person who made the certification." A personal, nondelegable duty is imposed on the signing attorney to satisfy himself, by application of his own judgment, that the pleading is factually and legally responsible. Because the duty belongs to the individual attorney, only he, and not his law firm, may be sanctioned for violating the duty. Murphy, 600 So. 2d at 827.
A hearing was held on plaintiffs' Motion to Compel, plaintiffs' Motion to Quash, EPCO's Motion for Summary Judgment, and plaintiffs' Motion for Sanctions on January 24, 2013. On the same day, the trial court held a separate hearing on the Motion for Sanctions. Present at the hearing on the Motion for Sanctions were plaintiffs' attorneys, Thomas Hightower, Jr. and Patrick Wade Kee. Present on behalf of EPCO were attorneys Louis P. Bonnaffons and Appellant.
At issue in the present case is the violation of either La. C.C.P. art. 863 or La. C.C.P. art. 1420. Under either article, no sanctions can be imposed unless there is a hearing first. However, the articles do not provide a requirement for notice of such a hearing to be given. Due process requires that reasonable notice be given. Such notice would not have to be in writing and actual notice would be sufficient. See Lee v. Woodley, 615 So. 2d 349, 352 (La. App. 1 Cir.), writ denied, 618 So. 2d. 411 (La. 1993). Since the manner of notice is not specified, appearing and acquiescing in the proceedings constitutes a waiver of such notice. Alombro v. Alfortish, 02-1081 (La. App. 5 Cir. 4/29/03), 845 So. 2d 1162, 1169, writ denied, 03-1947 (La. 10/31/03), 857 So. 2d 486.
Appellant was aware that a hearing for a Motion for Sanctions would take place, should have been aware that sanctions are personal to the attorney, and actually appeared at the hearing. During the hearing, Appellant never urged to the trial court a lack of adequate notice of the hearing, nor did he request a continuance or additional time to prepare for the hearing. See Lee, 615 So. 2d at 352-53. The court admitted the Accident Review, the Privilege Log, and the letter withdrawing the privilege on the Accident Review. Appellant admitted to signing the Privilege Log. The facts of this case show that Appellant had sufficient notice and that he participated in the hearing on the Motion for Sanctions.
Sanctions awarded pursuant to La. C.C.P. art. 1420 require only notice, not service of process. Appellant argues that service of process was required to be made upon him and relies on the articles pertaining to contempt, La. C.C.P. arts. 222-225. As stated earlier, we find the record before us clearly shows that the Appellant was sanctioned for violations of Louisiana's discovery rules, and was not held in contempt of court.
CONCLUSION
For the reasons set forth above the judgment rendered by the trial court sanctioning Appellant, J. Roumain Peters, III, is affirmed. Costs of the appeal are assessed to Appellant, J. Roumain Peters, III.
AFFIRMED.