author: | THIBODEAUX, Chief Judge. | WOODARD, J.,

text:
    Judy BARTON v. Cicero and Earline HINES.
    No. 04-329.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2004.

      Rodney Marchive Rabalais, Marksville, LA, for Defendants/Appellants — Cicero and Earline Hines.

      Brian M. Caubarreaux, Brian Caubar-reaux & Associates, Marksville, LA, for Plaintiff/Appellee — Judy Barton.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., BILLIE COLOMBARO WOODARD, and OSWALD A. DECUIR, Judges.
   | THIBODEAUX, Chief Judge.

Defendants, Cicero and Earline Hines, appeal the confirmation of a preliminary default judgment awarding the plaintiff, Judy Barton, damages in the amount of $575,000.00, for the wrongful death of her son, Jeremiah Dunmon; survival action damages in the amount of $200,000.00 as well as funeral expenses, for a total damage amount of $783,104.30. The Hineses also appeal the trial court’s denial of their motion for new trial. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

The Hineses assign as issues the following:

(1) whether the trial court erred in confirming the preliminary default obtained by the plaintiff where the time for answering the citation differed from the time for answering the subpoena duces tecum and the where the defendants failed to answer the citation;
(2) whether the trial court violated the district court rules when the lawsuit was originally assigned to “Division B” but the default judgment was entered and confirmed in “Division A” of the district court and whether this action invalidated the default judgment;
(3) whether the trial court erred in finding that the Hineses were negligent; (4)whether the amounts awarded by the trial court to Ms. Barton for her wrongful death claim and survival action were excessive; and whether the trial court erred in denying the motion for a new trial.

j¿n.

FACTS

Ms. Barton and her two children, Jeremiah and Edward Dunmon, lived with her mother, Annie Barton, in a trailer on property known as “Riverview Trailer Park” (Riverview). Behind the Barton trailer is an oxidation pond used to treat the sewage from the trailers in Riverview. At the hearing to confirm the default judgment, Ms. Barton testified that her mother rented a trailer lot from the Hineses for $80.00 per month, that the Hineses owned both the property upon which Riverview is located as well as the property where an oxidation pond is located. In this appeal, the Hineses dispute that Ms. Barton had sufficient proof of their ownership of the property. However, there is no question that the oxidation pond was surrounded by overgrown trees and shrubbery. The pond did not have fencing around it and its banks were very steep.

One morning, when Ms. Barton thought Jeremiah had gone outside to put a broken jelly jar in the trash, she became worried when he did not return within a half hour. Ms. Barton testified that Jeremiah has a seizure disorder for which he is medicated. She called her sisters, her brother and the police and started looking for him in cars, on foot, and by bicycle. Ms. Barton feared that Jeremiah had been abducted. It was not until 2:00 p.m. that she heard her niece scream from the area where the oxidation pond was located. Ms. Barton ran to the oxidation pond where she found Jeremiah face down. After difficulty getting to her son due to the steep banks of the pond, Ms. Barton was able to pull him out and her sister began CPR on Jeremiah. Ms. Barton testified that at one point, when “stuff would come out” of Jeremiah, she thought he was breathing. The resuscitation efforts continued for thirty minutes, but to no avail. Jeremiah died as a result of drowning in the oxidation pool.

|oOn August 26, 2003, Ms. Barton filed wrongful death and survival actions against the Hineses. The Hineses were personally served with the petition on September 4, 2003, by an Avoyelles Parish Sheriffs Deputy. Attached to the petition for damages was a subpoena duces tecum and a request for notice. The citation informed the Hineses that they were to appear at the office of the clerk within fifteen days of the date of service under penalty of law. The Hineses failed to appear within the fifteen day time limit. The subpoena duces tecum, however, had a different return date, September 26, 2003, where the Hineses were to appear at the office of Ms. Barton’s attorney. The Hineses failed to respond to the petition for damages by filing a responsive pleading/answer in the clerk’s office although they claim they went to the clerk’s office on the fifteenth day following service. Subsequently, a preliminary default judgment was entered on September 23, 2003, in favor of Ms. Barton and confirmed on September 26, 2003, awarding her damages for the wrongful death of her son and survival action damages as well as funeral expenses.

In response to the confirmation of a default judgment, the Hineses filed a motion for new trial based on procedural grounds. Their motion was denied. It is from the judgment confirming Ms. Barton’s preliminary default, that the Hineses appeal. They also appeal the trial court’s denial of their motion for new trial.

III.

LAW AND DISCUSSION

Citation Form

Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions under La.Civ.Code art. 102. Without them, all proceedings are absolutely null. La.Code Civ.P. art. 1201. The Hineses contend Ms. Barton’s citation form was defective because it did not contain |4the language as required in La. Code Civ.P. art. 1202, “Form of Citation.” Along with the date of issuance, the title of the cause of action, the name of the person to whom it is addressed and the title and location of the court issuing the citation, Article 1202(5) provides that the citation must also include:

A statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise, in the court issuing the citation within the delay provided in Article 1001 under penalty of default.

In the present case, the citations issued to the Hineses from Ms. Barton contained the following language:

You are hereby cited to appear in the office of the Clerk of said court; in the city of Marksville, Parish aforesaid and comply with the demand contained in the petition, of which a copy is hereto annexed, or make an appearance, in writing, by filing a pleading or otherwise in the Office of said Clerk within FIFTEEN (15) days after the service hereof, under penalty of law.

The Hineses contend that Ms. Barton’s citation violated the provisions of Article 1202 by stating that the Hineses would have to “appear in the office of the Clerk ... [file] a pleading or otherwise in the Office of said Clerk ... under penalty of law.” Thus, the citation was defective and the default judgment resulting from the defective citation is null. We disagree with the Hineses contention that the citation was defective.

Comment (a) of La.Code Civ.P. art. 1202 states:

Research on the form of citation used in other states shows that while some states specify particular forms, many others merely detail the general content of the citation. The latter provide the best system, and this article sets forth the content of the citation.

Comment (a) of Article 1202 does not support the Hineses assertion that Ms. Barton’s citation had to include, word for word, the information in Article 1202(5). It is clear |Rfrom the comment that, in Louisiana, the content of a citation does not have to use the exact wording as specified in Article 1202, but instead must generally convey the information of Article 1202. Thus, the issue is whether the citation, as written, details the general content of Article 1202. We find that it does.

Although La.Code. Civ.P. art. 1202 states that the citation must include information that the person being cited must appear in the court that issues the citation by filing a pleading or otherwise, the citation in the present case states that the person being cited must appear in the clerk’s office of the court noted on the citation form to file a pleading or otherwise. A person who chooses to answer the complaint or comply with the demand would have to file the pleading in the clerk of court’s office and in that manner make an appearance in the court. The Hineses could not be and, in fact, were not, mistaken as to the court before which they were called to answer. Thus, we find that the citation issued by the clerk in this case complies with La.Code. Civ.P. art. 1202 with respect to where a person served with a citation must appear and answer the citation.

The Hineses also argue that the citations, stating that failure to respond within fifteen days of service under penalty of law, was not sufficient to inform them that a default judgment could be obtained by Ms. Barton against them. We disagree. Whether the citations informed the Hineses that they faced penalties under law or more specifically, a default judgment, for failure to respond to Ms. Barton’s demands, it is clear that dire consequences could result from a failure to respond to the citation. Essentially, La. Code Civ.P. art. 1202 requires that persons who are served with a citation be informed of the serious consequences of choosing to ignore a citation. The consequence in this case is a default judgment. A judgment obtained by default is a penalty of law. We find that the citations were not defective in this respect.

| Subpoena Duces Tecum

The Hineses contend that additional confusion was created with respect to the citations because the return date of the subpoena duces tecum was past the date for responding to the citations. They claim that they were misled by the inconsistencies in the dates because it appeared that they could have waited longer to respond to the citations based upon the return date of the subpoena duces tecum. Ms. Barton filed suit against the Hineses on August 26, 2003. The Hineses were required to respond to the citations within fifteen days after they were served. The return date on the subpoena duces tecum was September 26, 2003, thirty-one days from the filing of the petition and more than the fifteen day delay for responding to the citations. However, the Hineses state, in their brief to this court, that they did what the citations told them to do on the fifteenth day after being served — went to the clerk of court’s office — yet they failed to file an appearance or pleading in the clerk’s office.

The citations and subpoena duces tecum are not so intertwined that one is inextricably tied to the other. A subpoena duces tecum may be issued in the same manner as any personal subpoena. La.Code Civ.P. art. 1854, comment (I). Thus, issuing a subpoena duces tecum with the citation is not violative of Article 1354. Had the Hineses filed a pleading or otherwise in response to the citations, they would not have suffered the penalty of default. The fact that the time for responding to the subpoena duces tecum may be longer than the time required to respond to the citation, does not extend the time for answering the citation. This argument is without merit.

Court of Confirmation of Default

The Hineses contend that the trial court erred in allowing Ms. Barton to 17confirm the default judgment in Division “A” of the Twelfth Judicial District Court instead of Division “B,” where the case was originally assigned. Louisiana Code of Civil Procedure Article 253.1, regarding the random assignment of cases provides that “[a]ll pleadings filed shall be ... assigned to a particular section or division of the court.” After assignment of a case to a particular division or section of the court, it may not be transferred to another section or division within the same court unless all parties agree thereto or for consolidation purposes. La.Code Civ.P. art. 253.2. Louisiana Code of Civil Procedure Article 253.3 provides exceptions to the above case assignment procedures allowing a “duty judge” to hear certain types of cases including, as set out in paragraph (3) of Article 253.3, entries of preliminary defaults and confirmation of defaults.

The Hineses argue, without citation to any authority, that the Twelfth Judicial District Court does not have duty judges. Therefore, when the judge of Division “A,” Mark Jeansonne, confirmed the default judgment in favor of Ms. Barton, whose case was originally assigned to the judge of Division “B,” William Bennett, the trial court erred. To bolster their argument, the Hineses rely on Uniform Rules-District Court, Rule 9.2, that provides:

Except as allowed by La.Code Civ. Proc. art. 253.3, all contested matters must be heard by the judge to whom the matter was allotted. If all parties and the court receiving the matter consent, a judge other than the one allotted the action may hear the matter. The judge to whom the action has been allotted may designate the order-signing judge or any other judge to sign such orders and set such hearings, and in his or her absence, to hear such matters where necessary to comply with law, or when deemed to be an emergency, in accordance with La.Code Civ. Proc. art. 253.3.

However, their reliance on District Court Rule 9.2 is misplaced. Rule 9.2 clearly states that “all contested matters must be heard by the judge to whom the matter was |8allotted.” In this case, the matter was not contested because the Hineses did not file a pleading or otherwise to contest the matter. Thus, the rule is inapplicable in this situation.

Hineses Negligence-Premises Liability

The Hineses assert that the trial court erred in finding them negligent under La.Civ.Code art. 2317.1 because they failed to prove that the Hineses owned or had guard over the oxidation pond in which Jeremiah drowned. Article 2317.1 provides in part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and the he failed to exercise such reasonable care.

At the confirmation default hearing, Ms. Barton presented an act of donation inter vivos, dated May 4, 1998, in which the Hineses’ daughter, Jackie H. Borrel, gave her parents, the Hineses, the property in question. Ms. Barton further presented a written lease agreement entered into by Mr. Hines and Ms. Barton’s mother to allow her to place her mobile home on a trailer lot on the property. We find that Ms. Barton sufficiently proved that the Hineses owned the property where the oxidation pond was located. Thus, this argument is without merit.

In addition to proof of ownership or guard of the premises, to prevail on a premises liability claim, a plaintiff must also prove that the thing that caused the damage, here the oxidation pond, had a defect or vice which created an unreasonable risk of harm, that the injury was caused by that defect or vice, and that the owner knew or should have known of the defect or vice. La.Civ.Code art. 2317.1. At the hearing, Ms. Barton produced evidence that the pond was located close to the trailer 1apark, that it was overgrown with vegetation, had steep banks and no fencing. There, of course, was no evidence presented to the contrary. The trial judge concluded that the pond, with those characteristics, presented an unreasonable risk of harm. We find no manifest error in the trial court’s conclusions.

The trial court also found that the condition of the oxidation pond was the cause of Jeremiah’s drowning death. Essentially, the trial court concluded that the risk of a child drowning in the oxidation pond could have easily been lessened if the Hineses had installed a fence, kept the vegetation around the pond cut so as to make it more visible and/or installed signs warning of the danger, all precautions a reasonable owner of land, on which such a pond was located, would have taken. We agree. Further, there were children, other than Jeremiah, who lived in the trailer park who could have just as easily met a similar fate due to the condition and location of the oxidation pond. We find that the trial court did not err in its factual conclusion that the condition of the oxidation pond caused Jeremiah’s death. Likewise, we find that as the owners of the trailer park land and oxidation pond that provided for the sewage from the trailer park, the Hineses should have known of the risk of harm the condition of the oxidation pond presented to any child who happened to be in the trailer park, whether a resident or otherwise. Accordingly, as found by the trial court, the Hineses are guilty of negligence and liable to Ms. Barton for the drowning death of her minor son, Jeremiah.

Quantum

The Hineses assert that the trial court abused its discretion in awarding Ms. Barton $200,000.00 in survival action damages and $575,000.00 in wrongful death damages. The trial judge is given great, “even vast,” discretion in awarding general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). The standard of review for damage awards requires a showing that the trier of fact clearly abused the great discretion accorded the trier in awarding damages and, in effect, the award must be so high or low in proportion to the injury that it “shocks” the conscience. Reichert v. Barbera, 601 So.2d 802 (La.App. 4 Cir. 1992).

With respect to the survival action, the autopsy report, entered into evidence at the hearing, states that the cause of death was the “inhalation and swallowing of water and debris, resulting in fatal asphyxia.” Further, the autopsy report states that Jeremiah’s lungs were “Wet heavy,” indicating that he was still alive during the drowning.” Thus, Jeremiah’s death in the oxidation pond did not occur instantaneously and was not without suffering. We find no abuse of discretion in the trial court’s award of $200,000.00 for the suffering Jeremiah endured while drowning.

The trial court awarded Ms. Barton $575,000.00 for the wrongful death of her son. Ms. Barton testified at the hearing that she and her son were very close. Jeremiah suffered from epileptic seizures and required medications to control the seizure incidents. His chronic illness caused Ms. Barton to have an especially close relationship with Jeremiah. She testified that they did lots of things together. The trial court noted that Ms. Barton had a very hard time testifying about the death of her son, crying as she tried to speak. Ms. Barton found her son in the pond with his head down and his feet sticking up out of the water. She also assisted in recovering his body from the pond. During the attempt to revive Jeremiah by use of CPR, Ms. Barton testified that she just screamed. We find that the trial court did not abuse its great discretion in awarding Ms. Barton $575,000.00 in wrongful death damages.

| uNew Trial Motion

The Hineses contend that a new trial should have been granted because the citations issued to them were defective. They further contend that the judgment against them was obtained by ill practices. For the reasons stated above with respect to any procedural defects in this case, we find that the citations were not defective and the judgment was not obtained by ill practices under La.Code Civ.P. art.2004 so as to intentionally or unintentionally mislead the Hineses. Therefore, the trial court did not err in denying the Hineses motion for new trial.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court, in favor of plaintiff, Judy Barton, is affirmed. Costs are assessed against the defendants, Cicero and Earline Hines.

AFFIRMED.

WOODARD, J., Dissents and Assigns Written Reasons.

| WOODARD, J.,

dissenting.

I respectfully dissent from the majority’s opinion.

I believe that under the circumstances in the instant case, in the interest of justice, the Hineses are entitled to a new trial, as the citation they received was ambiguous and defective.

It is obvious from Mr. Hines’ testimony that he did not intend to purposefully ignore the citation’s requirement and that, in fact, he did what he reasonably thought he was to do to comply:

Q.... After you received this did you go to the Clerk of Court’s Office?
A. Yes, sir, on the fifteenth day.
Q. And did you file anything in writing?
A. No.
Q. And why not?
|aA. They told us we didn’t need to be there.
Q. And she told you that you didn’t have to be at the Clerk’s office?
A. Right. They couldn’t understand why we had to be there.
Q. Did you show them the paperwork that you were served with?
A. Yes.
Q. Did you understand that you had been sued?
A. No.

I agree with the majority that the purpose of Article 1202(5) is to inform the defendant of the serious consequences of ignoring the citation, and Article 1202’s comment (a) re-enforces this precept. Basically it opines that, while a certain form for a citation is not required, the best method for placing one, who is served, on proper notice is for the citation to set out with specificity exactly what that person is to do in order to comply, as well as setting forth the penalty for failure to do so.

On the contrary, the citation the Hineses received did not inform them of the serious consequences of a default judgment if they ignored the citation’s instructions. Rather, it simply stated, “under penalty of law,” which meant nothing to them.

Louisiana Code of Civil Procedure Article 1202 provides that citations “must” contain the following:

(5) A statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise, in the court issuing the citation within the delay provided in Article 1001 under ‘penalty of default.
Comment (c) provides, in part:
The phrase “under penalty of default” was added to warn the defendant of the effect of his failure to answer. This provision is required in most states and by Fed.Rule 4(b).
Contrarily, the Hineses’ citation reads:
|sYou are hereby cited to appear in the office of the Clerk of said Court, in the City of Marksville, Parish aforesaid and comply with the demand contained in the petition, of which a copy is hereto annexed, or make an appearance, in writing, by filing a pleading or otherwise in the Office of said Clerk within FIFTEEN (15) days after the service hereof, under penalty of law.

Additionally, the trial judge noted: “It doesn’t say as I’ve seen is [sic] some citation [sic], say you are being sued, but it doesn’t have to.”

In the case at bar, the citation’s failure to specify the actual penalty for non-compliance — default—along with the accompanying subpoena deuces tecum, which ordered the Hineses to produce an insurance policy at Ms. Barton’s attorney’s office days after the deadline listed to appear in the citation, rendered the action they were to take confusing and the consequence of non-compliance ambiguous. In other words, since there was no mention that a judgment could be obtained against them, “under penalty of law” had no meaning for them, and, even if they had understood they were being sued, certainly, the citation did not put them on notice that the suit would not be ongoing on that date or that they would not be able to defend themselves.

Our supreme court has instructed us that there is a general policy consideration, weighing in the defendant’s favor, “that every litigant should be allowed his day in court;” that the Court is especially careful to review denials of a new trial in cases of default judgments; and most importantly, that “where an injustice is done and substantial rights are lost through mere technicalities, it is our duty to interfere.”

There is no question that permitting a $775,000 judgment to stand against this couple, without them having had their day in court, due to the ambiguity with which they were presented and despite that they did what they understood they should do under this particular citation, would be a mere adherence to technicality, resulting in a grave injustice.

“A party who seeks to have a default judgment set aside must allege and prove good reasons for nonappearance and failure to timely plea.” Jurisprudence does not delineate the exact boundaries for what constitutes “good reasons.”

|4After examining the totality of the circumstances in the instant case, I believe that the Hineses provided sufficient reasons. Accordingly, I would reverse the denial of their motion for a new trial.

      . Thibodeaux v. Burton, 538 So.2d 1001 (La.1989) (citations omitted).

      . Pickett v. Marchand, 544 So.2d 683 (La.App. 3 Cir.1989).


source: Caselaw Access Project

author: laCOOKS, Judge.

license: Public Domain

text:
    Paul ZERBE v. TOWN OF CARENCRO Carencro Police Department Chief Timothy Duhon Assistant Chief Brent Breaux Toby Landry, Off Duty Deputy John Doe, Unknown Officers.
    No. 04-422.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2004.

      S. Stephen Spring, II., Esq., Baton Rouge, LA, Ann Garcia Dafford, Lafayette, LA, for Appellant, Paul Zerbe.
    John F. Wilkes, Lisa E. Mayer, Joy C. Rabalais, Borne & Wilkes, LLP, Lafayette, LA, for Appellee, Timothy Duhon, Brent Breaux, City of Carenero.
    G. Edward Williams, Jr., Edwin G. Preis, Jr., Preis, Kraft & Roy, Dawn L. Morrison, L. Lane Roy, Lafayette, LA, for Appellee, Toby Landry.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   laCOOKS, Judge.

STATEMENT OF THE CASE

This lawsuit arises from an incident which occurred on Mardi Gras Day, February 25, 2001, in Carenero, Louisiana. The Plaintiff, Paul Zerbe, was maced, beaten, arrested and charged with two counts of battery upon a police officer and resisting arrest. The charges were later dismissed. Mr. Zerbe sued the City of Carenero, Chief of Police Timothy Duhon, Assistant Chief of Police, Brent Breaux, Deputy Toby Landry from the Lafayette Parish Sheriffs Office and Unknown Officers, John Doe. Mr. Zerbe sued under Louisiana law for false arrest, malicious prosecution, false imprisonment and defamation and under federal law for violation of his civil rights under 42 U.S.C. § 1983 and 1985. The Defendants filed a Motion for Summary Judgment alleging there are no material facts in dispute. Mr. Zerbe submitted his deposition, along with affidavits from several eyewitnesses to the incident. The trial court, without written reasons, granted Defendants’ Motion for Summary Judgment dismissing all of Mr. Zerbe’s claims. We reverse.

STATEMENT OF THE FACTS

The Plaintiff, Paul Zerbe, and several others, were gathered at the home of Charles Arceneaux to watch the parade and to partake in the Mardi Gras festivities in Carenero. This is a fact not in dispute. All other relevant facts, including who was at the scene of the incident and the sequence of events, are hotly contested. There is a video tape which, along with all other submitted evidence, is subject to several interpretations. Moreover, the record indicates the presence of police officers from all over the area, which further adds to the confusion of identifying exactly who was present at the scene. The Carenero police department sent a letter to all area law enforcement agencies asking for assistance on Mardi Gras Day. This practice is |4customary for small towns when faced with a major event. The officers answering the call to service are not compensated. They report to the Carenero police department, sign in and receive their assignment. On Mardi Gras Day there were officers from Carenero, Broussard, Scott, Cankton and Lafayette Parish on duty in Carenero. Some were in uniform and some were plain clothed wearing a badge. From Mr. Zerbe’s deposition testimony and the affidavits of individuals on the scene at the time, we are able to obtain an account of what may have happened in Carenero on that day.

On February 25, 2001, Mr. Zerbe arrived at the home of Mr. Arceneaux about 10:80 a.m. to barbeque and watch the Mar-di Gras parade. Mr. Zerbe’s wife, Lisa, and his four children were with him. His brother and sister-in-law from Michigan were also there, along with Fred Chaisson, his father-in-law. Mr. Arceneaux had invited several other guests. The parade started about 12:30 p.m. Shortly after the parade ended, a group of young men in a maroon pick-up truck stopped at the end of the driveway in front of Mr. Areen-eaux’s home. There was a disturbance of some kind. It is not entirely clear what caused the disturbance or what prompted Mr. Arceneaux to approach the young men. In any case, Mr. Arceneaux and the young men in the truck exchanged words. Mr. Zerbe testified he was standing about forty to fifty feet away at the time and heard the heated exchange. He walked over to the young men and asked them to move along. Lisa Zerbe stated she saw one of the men pull out a knife. Mr. Zerbe did not see the knife at this point. The young men drove off and Mr. Zerbe walked back down toward the house. The young men returned and Mr. Arceneaux went back towards the truck. At this point, Mr. Zerbe heard his wife say, “He has a knife. The guy in the truck has a knife.” According to Mr. Zerbe’s deposition testimony he, and his father-in-law, Fred Chaisson, and several others ^attempted to coax Mr. Arceneaux away from the truck to avoid any further trouble. Officer Mark Brasseaux was nearby in plain clothes with a badge. When Officer Brasseaux observed the disturbance he began to yell “riot, riot” on the police radio. Officer Brasseaux ordered Mr. Ar-ceneaux and Mr. Zerbe to move back, away from the truck. Several officers converged on the scene immediately. There were at least five or six officers around the truck. Mr. Zerbe observed his father-in-law, Fred Chaisson, trying to explain to Officer Elmo Begnaud, from the Cankton police department, what was going on. Mr. Zerbe testified the officer was not listening to his father-in-law and just kept screaming “get back, get back.” At about the same time, Mr. Zerbe observed an officer in a Lafayette Parish Sheriffs Department uniform mace and strike Mr. Arceneaux. Then, Mr. Zerbe testified, Officer Begnaud picked up his baton to strike his father-in-law. Mr. Zerbe intervened to block the blow. He was then sprayed in the face with mace. He stumbled and knocked the eyeglasses from Officer Beg-naud’s face. At that point someone maced him again. He did not know who sprayed him and he was temporarily blinded by the chemical spray. He was then struck several times with police batons and fell to the ground clutching Officer Begnaud. He was hauled away in a police vehicle, booked and charged with two counts of battery upon a police officer and resisting arrest.

LAW AND DISCUSSION

Mr. Zerbe has asserted state law claims for false arrest, malicious prosecution, false imprisonment and defamation and federal law claims under 42 U.S.C. § 1983. Defendants contend Mr. Zerbe’s suit must fail because the police had probable cause for his arrest and the force used to subdue him was reasonable under the circumstances. Additionally, Defendants contend Deputy Toby Landry of the Lafayette Parish Sheriffs Department was not involved in the altercation with Mr. 1 fiZerbe. While the Defendants admit Deputy Landry was involved in the arrest of Mr. Arceneaux, they contend Deputy Landry was nowhere near Mr. Zerbe. In support of this assertion, counsel for Defendants relies on the video tape of the incident. Defendants contend the video tape shows Deputy Landry some distance from Mr. Zerbe. Defendants also contend the video tape shows Mr. Zerbe had Officer Begnaud in a “choke-hold” which, they contend, proves Mr. Zerbe acted belligerently and interfered with the officers’ attempts to control a rowdy crowd. We have viewed the video tape and do not find it conclusive regarding the facts of the case. First, the video tape is incomplete and contains “gaps” when the user apparently turned off the recorder. Consequently, the video tape itself is the subject of legitimate dispute. Second, Mr. Zerbe disputes the characterization as a “choke-hold.” He contends the officer “ran up into me, and I just — I didn’t see anything. He ended up there in my arm, and I just held on to him” as he fell to the ground blinded by the mace. This version of the story is consistent with Officer Begnaud’s affidavit testimony. Officer Begnaud stated: “Mr. Zerbe was apparently blinded and ran into me knocking my glasses off. When that happened, other police officers attempted to subdue Mr. Zerbe who was tangled up with me.... I do firmly believe that Mr. Zerbe did not intend to do any harm to me and bumped into me because he was temporarily blinded from the mace that was sprayed in his face by the Lafayette Parish Sheriffs Deputies.” Third, it is undisputed the so-called “choke-hold” occurred after Mr. Zerbe was maced the first time. The officers must first establish probable cause for the initial assault upon Mr. Zerbe. Mr. Zerbe’s resistance, after he was wrongfully seized, maced and beaten, cannot thereafter be used by the police to justify the arrest.

Mr. Zerbe has asserted a claim for false arrest. In order to recover on a false arrest claim, Mr. Zerbe must prove he was unlawfully detained by the police. Tabora v. City of Kenner, 94-618 (La.App. 5 Cir. 1/18/95), 650 So.2d 319, writ denied, 95-0402 (La.3/30/95), 651 So.2d 843. Stat ed differently, he must prove the police lacked probable cause for the arrest. If the police are not able to establish probable cause for their initial assault, Mr. Zerbe was justified in resisting the wrongful seizure. McDaniel v. Green, 99-1087 (La.App. 3 Cir. 12/22/99), 755 So.2d 942, review denied, 00-0200 (La.3/24/00), 758 So.2d 151. Moreover, even if an officer has probable cause, the use of excessive force in effecting the arrest becomes an actionable claim for damages. Penn v. St. Tammany Parish Sheriffs Office, 02-0893 (La.App. 1 Cir. 4/2/03), 843 So.2d 1157; Kyle v. City of New Orleans, 353 So.2d 969 (La.1977). “Excessive force transforms ordinarily protected use of force into an actionable battery, rendering the defendant officer and his employer liable for damages.” Penn v. St. Tammany Parish Sheriff’s Office, 2002-0893 (La.App. 1 Cir. 4/2/03), 843 So.2d 1157, 1161. The video tape reveals the officers continued to beat Mr. Zerbe after he was maced and on the ground. Moreover, the affidavits of several individuals who were present at Mr. Arceneaux’s home raise genuine issues of fact as to whether the police had probable cause to arrest Mr. Zerbe, in the first place, whether the force used to subdue him was excessive and whether Mr. Zerbe was justified in resisting the assault. Lisa Zerbe stated:

As we were standing in the yard after the parade, I saw my cousin, Charles Arceneaux, exchanging words with someone in the back of a truck who I saw pull a knife (the person in the truck) on Charles. The police were called to investigate.
An older officer approached my father, Fred Chaisson, yelling at him and raised his billy club telling him to move.
Paul Zerbe then walked up and put his arm up to prevent injury to my father. At that time I heard Mark Brasso yelling into his police radio “Riot, riot, riot.” Suddenly there were police officers coming from every direction on foot, in cars, and four wheelers like roaches coming out of the woodwork.
There did not appear that anyone was in charge and it was like a free for all.
Paul was then struck from behind and maced by several officers. Immediately there were several officers beating Paul and macing him.
I witnessed an officer from the Lafayette Parish Sheriffs Officer mace Paul in the face and strike him with his billy stick.
| jjRussella Arceneaux stated in her affidavit:
As we were standing in my yard after the parade, I saw my son, Charles Ar-ceneaux, exchanging words with someone in the back of a truck who I saw pull a knife (the person in the truck) on Charles. All of a sudden, the yard was filled with police. My daughter had pulled Charles away from the road and back into my yard. At that time, a police officer walked up and maced him in the face.
In the next instant there were police hitting Paul Zerbe and spraying mace in his face. Paul Zerbe was struck from behind and knocked to the ground.
I saw 2 or 3 officers holding Paul down on the ground and several others beating him. I never witnessed any conduct by Paul Zerbe at anytime that day to provoke such an attack. I never saw Paul Zerbe resist at any time that day.
Angelo Corceone stated:
I was present during the deposition of Deputy Toby Landry in the offices of Attorney John F. Wilkes, III on May 13, 2003.
I have carefully reviewed the Affidavits of Kimberly C. Prunty and Elmo Begnaud and the photographs attached.
The officer in the photographs wearing the tan top, dark bottom uniform of the Lafayette Parish Sheriffs Department is the same person who identified himself as Toby Landry at the deposition on May 13, 2003. This is the same officer in the photographs who has a billy club in one photography and a can of mace in his hand in another.
Kimberly C. Prunty stated in her affidavit:
The parade had ended and we were waiting for the traffic to clear to leave when an altercation over music happened with some occupants in a car who flashed a knife at Charles Arceneaux, who I know. The occupants jumped out of the truck and there was an exchange of words.
One officer I observed speaking with Pops who is Fred Chaisson about being too close to the traffic as well as speaking with the occupants of the car.
I was an eyewitness to an incident that happened on February 25, 2001, involving an individual by the name of PAUL ZERBE.
At that point there were officers involved with Charles Arceneaux. I observed one officer dressed in a uniform the same as the officer whose photograph is attached hereto come up from behind Paul Zerbe and struck Paul Zerbe with what appeared to be either a baton or asp without warning. Immediately after striking Paul Zerbe from behind and grabbing Paul, I immediately smelled mace or pepper spray in the air.
While beating Paul Zerbe the officers continued to spray Paul with mace or pepper spray between the initial spot next to the road all the way to the driveway where Paul was brought to the ground and beaten and sprayed again by additional officers who joined in with other officers while Paul was on the ground.
| aThere was so much mace or pepper spray in the air from these officers that I had to put water in the eyes of our youngest child who was approximately two years old. Also, my other two children there were also crying from the spray in the air. I was crying from the spray in the air.
I wanted to leave the area to get medical assistance for my children and I was informed by one officer that if I moved I would be arrested.
This same officer who is in the attached photograph I heard use his radio and say that things were out of control even though things were not out of control while this same officer was arresting Charles Arceneaux.
I am positive that the police officer in the photograph attached to my affidavit is the same police man who went from Charles Arceneaux while he was on the ground and ran up behind Paul Zerbe and struck Paul for no reason.
John Zerbe, brother of Paul Zerbe, stated in his affidavit:
On February 25, 2001, I was at the Mardi Gras parades being held on North University Avenue in Carenero, Louisiana. The parade had finished and I was in the process of packing things up when I notice a disturbance in the back of a pick up truck with a group of white males. The police were only a few vehicles in front of this group. When the disturbance started the police showed up very quickly. Apparently there was an individual involved in the disturbance with the people in the truck who had pulled a knife.
The police started frisking the people in the truck for knives. Charles Arcen-eaux was upset at person with the knife and he ran towards the truck. The police seemed to have spooked by this and they sprayed him with some sort of tear gas or pepper spray. He turned his back to them in a stunned stated and I heard the police tell him to stop. He stopped and the police came up and doused him with pepper spray. This inflamed the crowd because a lot of people were trying to get the police to understand what had happened; however, the police weren’t listening.
My brother’s father in law was one of these people trying to tell the police that the man they were spraying with spray wasn’t involved in the disturbance with the knife. As he tried to explain to one of the police, the policeman raised his billy club acting in a manner that indicated the policeman was about to strike my brother’s father in law who is an elderly individual.
At this point, my brother, Paul Zerbe, came up to the police man and put his arm in between the policeman and my father in law and said “No” in an effort to fend off any blows the policeman looked like he was going to give my brother’s father in law.
Another policeman came up behind Paul Zerbe and began striking him from behind in the legs with some sort of club. At that point the other policeman lunged at my brother with a club and my brother attempted to protect himself from being beaten further.

| Additionally, the Defendants’ assertion that Deputy Landry was not involved in Mr. Zerbe’s beating is called into question by Officer Elmo Begnaud, a participant .and eyewitness to the events. Officer Begnaud stated in his affidavit:

I was an eyewitness to an incident that happened on February 25, 2001, involving an individual by the name of PAUL ZERBE.
Mr. Zerbe was initially sprayed in the face with mace and grabbed by members of the Lafayette Parish Sheriffs Office, one of whom I can positively identify appearing in the attached photograph. This deputy appearing with a tan top and dark pants I understand is named, Toby Landry. I do not know him personally, but can positively testify herein that he was one of the Lafayette Parish Sheriffs deputies who first accosted Mr. Paul Zerbe by macing and/or grabbing him initially while also using police batons as well.
After this deputy and others sprayed Mr. Zerbe in the face with mace and /or pepper spray, Mr. Zerbe was apparently blinded and ran into me knocking my glasses off.
When that happened, other police officers attempted to subdue Mr. Zerbe who was tangled up with me. These additional officers who appear in the other attached photographs struck Mr. Zerbe with asps as depicted in the photographs.

We find, at the very least, Mr. Zerbe has raised genuine issues of fact regarding whether the police misread the situation and acted without probable cause and with excessive force in detaining Mr. Zerbe.

Mr. Zerbe has filed a claim for malicious prosecution. In order to support such a claim, Mr. Zerbe must show a bona fide termination of the charges against him, the absence of probable cause and malice on the part of the department. Miller v. East Baton Rouge Sheriff's Department, 511 So.2d 446 (La.1987). When charges against and individual are dismissed “prior to trial, lack of probable cause and malice are presumed and the burden is on the defendant to prove he acted with probable cause and without malice.” Watson v. Church’s Fried Chicken, Inc., 527 So.2d 979, 981 (La.App. 4 Cir.1988), writ denied, 532 So.2d 135 (La.1988). In this case, the facts indicate the officers failed to properly investigate the legitimacy of the charges even after Mr. Zerbe was brought to the station. Had a statement been obtained from Officer Beg-naud and other townspeople at the scene, prior to booking, formal charges Inmay never have been filed and the police may have reached a different conclusion regarding the truth of the situation. The record also does not indicate the police obtained any statements from eyewitnesses other than police officers. We find Mr. Zerbe has presented enough facts to support a claim for malicious prosecution.

Mr. Zerbe has filed a claim for defamation. In Watson v. Church’s Fried Chicken, Inc., 527 So.2d 979, 981 (La.App. 4 Cir.1988), the court allowed a plaintiff to recover damages for defamation when an employee of Church’s Fried Chicken made a complaint which caused the plaintiff to be wrongly arrested for armed robbery. Mr. Zerbe contends Deputy Toby Landry, and other officers, made false statements at the time of his arrest or shortly thereafter which caused the prosecution to proceed against him. The prosecution was ultimately dropped when Officer Begnaud, and others, came forward with evidence which disputed Deputy Landry’s and other officers’ versions of the facts. We find Mr. Zerbe has presented enough facts to support a claim of defamation. Accordingly, we reverse the decision of the trial court granting summary judgment on the state law claims of false arrest, malicious prosecution, false imprisonment and defamation against the police officers.

The Defendants contend Mr. Zerbe cannot establish negligence on the part of the Town of Carenero under principles of vicarious liability. The Town argues neither Chief of Police, Timothy Du-hon, nor Assistant Chief Brent Breaux were present during the incident. Chief of Police Timothy Duhon confirms he was riding in the parade on Mardi Gras Day. The Town of Carenero takes comfort in the fact the volunteer officers were in no way under Chief Duhon or Assistant Chief Breaux’s supervision and control. However, it is this fact which may render the Town liable. It is undisputed Chief Duhon solicited armed police officers from other areas into service to assist the local department keep order. These officers were not trained in crowd control, supervised or placed under the direction and control of a Carenero | ^police officer. Each officer, as Chief Duhon testified, was operating under the policies of their individual department. Chief Duhon was not aware exactly how many officers reported for duty and “[t]hey left when they felt they could... .The only thing we told them was that they were having lunch served at eleven, if they wanted to come and eat.” This type of lax, unstructured, unaccountable, police force, in which each officer was operating on his own, may have contributed to the mayhem which resulted on Mardi Gras Day. Several witnesses described the scene with the police as a “free for all.” It appears from the submissions in the record the police may have overreacted to a small disturbance. There is little to suggest that a riot was occurring in Carenero. At the very least, these facts raise an actionable claim under Louisiana law against the Town of Carenero for negligent supervision.

Mr. Zerbe has asserted claims against the Town of Carenero under 42 U.S.C. § 1983. He contends the Town of Caren-ero instituted a policy or custom which caused a deprivation of a constitutional right. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Mr. Zerbe argues the custom or policy by the Town of Carenero to invite armed officers into the town but fail to properly supervise their behavior rises to the level of an actionable claim under 42 U.S.C. § 1983. Without deciding whether the plaintiff may prevail on this theory of recovery, we find, given the totality of the facts, he must be given the opportunity to fully develop this claim.

Mr. Zerbe has asserted a claim for damages under 42 U.S.C. § 1983 arguing the police used excessive force when executing his arrest. Penn v. St. Tammany Parish Sheriff's Office, 2002-0893 (La. App. 1 Cir. 4/2/03), 843 So.2d 1157, addressed recovery of damages under 42 U.S.C. § 1983 for use of excessive force. The Penn court stated:

An excessive force assertion based on section 1983 is a federal | ^constitutional claim that is analyzed via Fourth Amendment constitutional standards, [citations omitted]. The relationship of the amount of force used to the need presented, the extent of injury, and the motives of the officer determines whether the Parish exceeded the constitutional limits such that there was also an actionable physical abuse under 42 U.S.C. § 1983. [citations omitted]. If the officer’s actions were grossly disproportionate to the need for action under the circumstances, rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under section 1983. Id. The plaintiff is thus required to show a significant injury that resulted from the use of objectively unreasonable force that was clearly excessive of the need, [citations omitted].

Id. at 1159-60.

We find Mr. Zerbe has presented enough facts to assert a claim for damages for use of excessive force under 42 U.S.C. § 1983. Accordingly, we reverse the decision of the trial court dismissing Mr. Zerbe’s claims under this provision. Mr. Zerbe has also filed a claim under 42 U.S.C. § 1985 for conspiracy to deprive him of his constitutional rights. We do not find it necessary, at this time, to discuss the merits of the conspiracy claim because of our disposition of Mr. Zerbe’s other claims.

Defendants contend Mr. Zerbe’s appeal is frivolous and ask for an award of attorney fees to cover the costs of appeal. We find this assignment of error without merit.

DECREE

Based on the foregoing review of the record, we reverse the decision of the trial court dismissing the plaintiffs claims under state and federal law. All costs of this appeal are assessed to the Defendants.

REVERSED.