author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Vori P. WEBB.
    No. 13-KA-611.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long,
    Shannon K. Swaim, Michael G. Morales, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Max M. Chotto, Attorney at Law Gret-na, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

12Pefendant, Vori P. Webb, appeals her conviction and sentence for theft of goods valued at over $1,500.00. In particular, she seeks review of that portion of her sentence relating to the amount of restitution owed as well as the calculation of the monthly payments. For the reasons that follow, we affirm the total amount of restitution as set by the trial court; however, we remand the matter with instructions for the trial judge to set the manner of restitution payments after considering the earning capacity and assets of defendant.

PROCEDURAL HISTORY

On July 13, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant with a violation of LSA-R.S. 14:67, in that, between June 18, 2009, and March 17, 2011, she “did commit theft of U.S. Currency, valued at over $1,500.00, from Arcelor-Mittal D/B/A Mississippi River Recycling.” At the October 2, 2012 arraignment, defendant pled not guilty. On [¡¡March 11, 2013, defendant withdrew her not guilty plea and pled guilty as charged under LSA-C.Cr.P. art. 893. The district court accepted defendant’s plea and thereafter set the matter for a restitution hearing on May 20, 2013.

After considering the evidence presented at the hearing, the trial judge ordered defendant to pay $777,500.00 in restitution to the victim. Afterward, the trial judge deferred imposition of sentence, placed defendant on active probation for five years, and imposed various special terms and conditions of probation, including restitution to the victim in the amount of $777,500.00 to be paid in 60 equal monthly installments. Defendant now appeals and specifically seeks review of the trial court’s rulings relating to the amount of restitution ordered as well as the calculation of the monthly payments.

FACTS

In 2005, ArcelorMittal d/b/a Mississippi River Recycling hired defendant to work at its Harvey scrap yard. At the yard, the company would buy scrap metal from the public and other sources, process it, load it, and ship it to the steel mill in LaPlace for remelting. In 2009, due to a downturn in the market, several employees were laid off. As a result, in March of 2009, defendant’s job expanded from just working the cashier window to both weighing the scrap that was brought into the yard as scale operator and paying the vendor for the material as cashier.

In particular, when a load of scrap metal was brought in for sale, the vendor/ truck driver would drive the truck onto the scale to be weighed. The truck driver would exit the vehicle and go to defendant who would enter his information into the computer and then weigh both the truck and its contents. The driver would 14then proceed into the yard to unload the scrap metal from the truck. The inspector who received the scrap would fill out an inspection ticket listing the name of the driver and the quality of the scrap. The vendor would then take the inspection ticket to defendant who would weigh the truck without its contents. Based on the difference in weight, defendant would issue the vendor a check for the scrap metal.

In March or April of 2011, the company saw some weight discrepancies between the weight of the scrap metal that should have been in the yard and what was actually in the yard. Initially, the supervisors of the company attributed these weight discrepancies to a new computer system that had been installed. During this same time frame, one of the company managers, David Strong, noticed that someone by the name of Jamal Parham had brought in plenty of material and would have been ranked as one of their top vendors. When Mr. Strong asked the employees about Mr. Parham, nobody knew who he was, what company he was with, or what truck he had; yet, Mr. Parham had allegedly been their largest deliverer of scrap for the prior two years. In addition, company representatives questioned the men who unloaded the trucks and signed the inspection tickets, but none were familiar with Mr. Parham or his vehicle.

During the course of the investigation relating to the missing inventory and the unknown vendor, company officials interviewed defendant. She gave two recorded statements, in which she admitted that she engaged in a fraudulent scheme with Mr. Parham to steal money from the company. During her statements, defendant explained that she would use weights from trucks that were delivering legitimate scrap loads in order to obtain weight tickets and generate transactions in the name of Jamal Parham. She further explained that after the new computer system was installed, she would type in a fictitious weight and make a transaction. Defendant further claimed that not all the loads were false and that | ^sometimes Mr. Par-ham would come in with real loads and she would inflate the weights. Defendant maintained that she split the money 50/50 with Mr. Parham.

As a result of their investigation, company officials determined that a total of $825,000.00 in checks were made payable to Mr. Parham. Of this amount, defendant has paid back $47,500.00.

AMOUNT OF RESTITUTION

(Assignments of Error Numbers 1, 2, and 3)

On appeal, defendant challenges the trial court’s rulings regarding the amount of restitution.

After considering the evidence presented at the restitution hearing, the trial court set restitution at $825,000.00 based on the checks made out to Mr. Parham. From that figure, the trial court subtracted $47,500.00, the amount paid back to the company by defendant; thereafter, the court ordered defendant to pay the company $777,500.00 as a condition of her probation. In setting the amount of restitution, the trial court expressed his belief that Mr. Parham did not exist.

Defendant now challenges the amount of restitution ordered as well as the trial court’s determination that Mr. Parham did not exist. In particular, defendant argues that the trial judge erred by ordering restitution in excess of the proven pecuniary losses caused by her criminal activity. She contends that the trial judge ordered her to pay the total amount of the checks made out to Jamal Parham, but that he failed to give her any credit for the scrap metal Mr. Parham actually delivered to the scrap yard. Defendant further contends that considering the admission of the State’s attorney that Mr. Parham existed and the lack of testimony from the Jefferson Parish Sheriffs Office investigator, there was ^insufficient evidence for the trial judge to find that Mr. Parham did not exist. We find no merit to these arguments.

When a court places a defendant on probation, it may impose any specific condition of probation reasonably related to his or her rehabilitation, including a requirement that he or she make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court. LSA-C.Cr.P. art. 895(A)(7). In addition, LSA-C.Cr.P. art. 895.1(A)(1) provides, in part, as follows:

When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash.... The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain.

In ordering restitution the trial judge has discretion and his decision will not be disturbed absent an abuse of this discretion. State v. Blanchard, 03-612 (La.App. 5 Cir. 11/12/03), 861 So.2d 657, 668.

In the instant case, we find that the record supports the amount of restitution ordered by the trial court, as well as the trial court’s determination that Mr. Par-ham did not exist. At the restitution hearing, the testimony of the State’s witnesses and the State’s exhibits showed that defendant issued checks in the amount of $825,000.00 to Mr. Parham during the course of the fraud. This amount was offset by the $47,500.00 defendant returned to the company; therefore, the trial court properly ordered defendant to pay $777,500.00 in restitution to the victim.

In contesting the amount of restitution ordered, defendant contends that the trial judge erred by finding that Mr. Par-ham did not exist and further asserts that she should have received a credit for the amount of scrap metal Mr. Parham delivered to the company. At the restitution hearing, the evidence showed that in early 2011, the company noticed that a Mr. Par-ham had delivered plenty of |7material to the scrap yard and would have been ranked as one of their top vendors for the previous two years. Nevertheless, when all of the employees, including the men who unloaded the trucks and signed the inspection tickets, were questioned, none of them knew or had ever seen Mr. Par-ham or his vehicle. Additionally, the company had video of trucks going in and out of the scrap yard on certain dates, and there were 23 instances where checks to Mr. Parham were issued, but the video did not show trucks for Mr. Parham coming into the yard. Moreover, records showed that the alleged arrival and departure times of Mr. Parham to the scrap yard were suspicious, as they appeared to be excessive or improbable. Also, no loads from Mr. Parham were ever processed on days that defendant was on vacation. Lastly, defendant never produced Mr. Par-ham and did not give the company any information regarding his whereabouts. Also, the company and the Jefferson Parish Sheriffs Office tried to find Mr. Par-ham but were unsuccessful.

After hearing the testimony and considering all of the evidence, the trial judge obviously believed the State’s witnesses regarding the amount of money stolen and the non-existence of Mr. Par-ham. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Based on the evidence presented at the hearing, we find that the trial court did not err in ordering restitution in the amount of $777,500.00. We further find no error in the trial court’s determination that Mr. Parham did not exist and in his refusal to give defendant a credit for scrap metal allegedly brought in by Mr. Parham. Accordingly, the arguments raised in these assignments of error lack merit.

IdCALCULATION OF MONTHLY PAYMENTS

(Assignment of Error Number 4)

In her fourth assignment of error, defendant argues that the trial judge erred by failing to set the amount of the monthly restitution payments based on her earning capacity and assets.

At the restitution hearing, the trial court set restitution in the amount of $777,500.00, and thereafter indicated that he would let the probation department determine the monthly amount after doing an investigation as to defendant’s employment and expenses. Despite this assertion, the trial court thereafter ordered defendant to make restitution to the aggrieved party in the amount of $777,500.00 in 60 equal installments but that was “to be determined by the Probation Department.” Defendant now contends that the trial court erred in setting the monthly restitution payments without considering defendant’s earning capacity and assets. We find merit to this argument.

LSA-C.Cr.P. art. 895.1(A)(1) provides that the restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

In State v. Joseph, 09-400 (La.App. 5 Cir. 12/29/09), 30 So.3d 157, 166-67, the trial judge failed to specify the amount of restitution that would be paid, but rather noted the amount was over $16,000.00 and stated that the probation officers could get an exact amount from the District Attorney’s Office or the victim. Further, the record did not reflect that the trial court determined the defendant’s earning capacity and assets or set a payment schedule for restitution. Based on the provisions of LSA-C.Cr.P. art. 895.1, this Court remanded the matter to the trial court for a determination of the manner in which the defendant would pay | Restitution, either in a lump sum or installments, based on the defendant’s earning capacity and assets.

In State v. McGee, 08-395 (La.App. 5 Cir. 10/28/08), 996 So.2d 1191, 1195, writ denied, 08-2791 (La.6/5/09), 9 So.3d 868, the trial court ordered defendant to pay $70,952.44 in restitution as directed by the probation department. This Court found that the trial court’s ruling on payment of restitution did not comply with the provisions of LSA-C.Cr.P. art. 895.1(A) and therefore remanded the matter to the trial court for a determination of the manner in which restitution should be paid based on defendant’s earning capacity and assets. See also State v. Alexander, 97-1199 (La.App. 5 Cir. 9/29/98), 720 So.2d 82, 88, writ denied, 98-3109 (La.4/9/99), 740 So.2d 628.

Likewise, in the present case, the trial court’s ruling on the payment of restitution failed to comply with the provisions of LSA-C.Cr.P. art. 895.1(A). First, it is unclear whether the trial court set the monthly payments. While the trial court stated that defendant was to pay the amount in 60 equal monthly installments, the trial court also stated that he was leaving the amount of the monthly payments up to the probation department. Moreover, if the trial court did set the monthly payments, he failed to consider the earning capacity and assets of defendant as required by LSA-C.Cr.P. art. 895.1(A). Accordingly, we remand the matter with instructions to the trial court to set the manner of the restitution payments after considering the earning capacity and assets of defendant.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors that require corrective action.

110Accordingly, defendant’s conviction and sentence are affirmed. This matter is remanded to the trial court for a determination of the manner of the restitution payments based on the defendant’s earning capacity and assets.

CONVICTION AND SENTENCE AFFIRMED; MATTER REMANDED.

      . LSA-C.Cr.P. art. 893 provides in pertinent part:
      E. (l)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.

      . At the restitution hearing, the prosecutor stated, "[Mr. Parham] exists. We just can’t lay hands on him. We would have charged him.”


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Delbert CELESTINE.
    No. 2012-KA-1541.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee, State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Delbert Celestine.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   TERRI F. LOVE, Judge.

11 This appeal arises from the convictions and sentence of the defendant for one count of attempted possession of a firearm by a felon and one count of attempted simple escape. The defendant asserts that the trial court erred by denying a Batson challenge and in allowing alleged improper statements during closing and rebuttal arguments. We find that the trial court did not err in finding the State’s race-neutral reasoning for striking the potential juror was valid. We also find that the trial court did not err in overruling defense counsels’ objections to the State’s closing argument and rebuttal. Therefore, we affirm the defendant’s convictions and sentence.

PROCEDURAL HISTORY

Delbert Celestine was charged by bill of information with one count of possession of a firearm by a felon pursuant to La. R.S. 14:95.1 (count one) and one count of simple escape pursuant to La. R.S. 14:110 (count two). He pled not guilty to both counts.

Mr. Celestine filed motions to suppress evidence, which the trial court denied. The trial court found probable cause to substantiate the charges. The trial court also denied Mr. Celestine’s Motion to Sever.

li»A twelve-person jury unanimously found Mr. Celestine guilty of attempted possession of a firearm by a felon and attempted simple escape.

The State filed a multiple offender bill of information charging Mr. Celestine as a second offender on the attempted possession of a firearm charge. A separate multiple bill charging Mr. Celestine as a third felony offender was filed relating to the attempted simple escape charge.

Mr. Celestine filed a Motion for a New Trial and a Motion for Discovery concerning the multiple bills of information. The trial court denied Mr. Celestine’s Motion for New Trial. Mr. Celestine waived all sentencing delays. The trial court then held a hearing on the multiple bill, after which it adjudicated Mr. Celestine as a double offender as to the attempted possession of a firearm charge and as a third felony offender as to the attempted simple escape charge. The trial court denied Mr. Celestine’s Motion for a New Trial as to the multiple bill and sentenced him to serve fifteen years at hard labor without benefit of parole, probation, or suspension of sentence as to the attempted possession of a firearm charge and forty months at hard labor as to the attempted simple escape charge, the sentences to be served consecutively. Mr. Celestine’s appeal followed.

OFFICER DARYLE HOLLOWAY’S TESTIMONY

Officer Daryle Holloway, a nineteen-year veteran of the New Orleans Police Department (“NOPD”), testified that, while assigned to the NOPD Fifth District Night Watch, he responded to a call of “shots fired” at The Sports View Night Club (“Club”) located at 1701 Elysian Fields Avenue, at 1:40 am. Officer Holloway identified photographs of the 1600 and 1700 blocks of Elysian Fields Avenue, and of the sports bar.

Officer Holloway was the first NOPD officer on the scene and observed ajjlarge number of people at the scene, which he described as chaotic. Security guards at the Club informed him that some individuals were fighting and left the Club in a silver Malibu with a Texas license plate. Officer Holloway was directed to the vehicle in question at the intersection of Elysian Fields and Derbigny. The vehicle was stopped in the middle of the neutral ground. Officer Holloway and Officer Phil Burras approached the vehicle and, due to the nature of the call, Officer Holloway drew his weapon. The driver, Jasmine Tolbert, was observed bleeding from his face. The three occupants of the vehicle were ordered to show their hands, and Mr. Tolbert was removed from the vehicle first. Mr. Ceiestine was sitting in the back seat of the vehicle and was observed with his hands in the air and a green shirt on his lap.

Officer Holloway then heard Officer Burras yell “get down.” Officer Holloway saw Officer Burras with a Mac-11 machine pistol in his hands. Officer Holloway then observed Mr. Celestine sliding the green shirt off of his lap, which fell to the floor of the vehicle with a thump. Officer Holloway discovered that the object that fell from Mr. Celestine’s lap was a firearm. Officer Holloway secured Mr. Celestine, while Officer Burras secured the third occupant of the vehicle, who stated that his name was Sidney Patterson. Although Mr. Tolbert ran, he was recaptured. Mr. Celestine and the other two occupants of the vehicle were taken to University Hospital.

Officer Holloway did not obtain statements from any of the witnesses at the crime scene, and did not fingerprint the confiscated firearm. Officer Holloway did not seize the green shirt from the backseat of the vehicle. He photographed neither |4the vehicle nor the green shirt.

OFFICER PHIL BURRAS’ TESTIMONY

When Officer Burras arrived at the scene, Officer Holloway was on site speaking with security. After being advised of the type of vehicle in which the suspects fled, the officers found the vehicle at the corner of Elysian Fields and North Der-bigny. While Officer Holloway approached the driver, Officer Burras approached the passenger side of the car, where Mr. Nora was seated in the front passenger seat. Officer Burras ordered Mr. Nora from the vehicle and onto the ground, at which time he heard a metal object hit the ground. Officer Burras seized a Mac-11 from Mr. Nora’s waistband. He handcuffed Mr. Nora, and that’s when Mr. Tolbert fled. Officer Burras chased and captured Mr. Tolbert. All three occupants of the vehicle were arrested, and then transported to University Hospital. After taking all three suspects to a secured waiting area, Officer Burras observed Mr. Celestine run towards the exit door, but the door would not open.

OFFICER CALVIN BANKS’ TESTIMONY

Officer Calvin Banks responded to the scene and transported Mr. Celestine to University Hospital. Officer Banks believed that Mr. Celestine sustained injuries from a fight that occurred at the Club. Once beyond the security doors at the hospital, Mr. Celestine became rigid, fell to the floor, and jumped up and ran to the door. However, Mr. Celestine was unable to open the door because his hands were cuffed behind his back. Officer Banks detained Mr. Celestine again and escorted him to the examining room.

ERRORS PATENT

A review of errors patent reveals that the trial court correctly did not impose a fine on the attempted possession of a firearm charge because Mr. Celestine was | ¡¡sentenced as a multiple offender. See State v. Dickerson, 584 So.2d 1140 (La.1991). Although the trial court did not specify that the attempted simple escape sentence be served without benefit of probation or suspension of sentence as required by La. R.S. 15:529.1G, the trial court did not suspend the sentence or place him on probation. However, these prohibitions are deemed to have been imposed. See La. R.S. 15:301.1A and State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799.

BATSON CHALLENGE

Mr. Celestine contends that the trial court erred by denying his Batson challenge to the State’s use of peremptory challenges. Specifically, he asserts that the State did not set forth a sufficient race-neutral reason for challenging Juror Ramsey.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Court held that a prosecutor’s use of peremptory challenges to strike potential jurors on the basis of their race violates the Equal Protection Clause. The dictates of Batson are codified in La.C.Cr.P. art. 795.

In State v. Nelson, 10-1724, 10-1726, p. 9 (La.3/13/12), 85 So.3d 21, 28-9, the Louisiana Supreme Court adopted the three-step procedure outlined in Batson that a trial court is to use when a party claims that the other party has used peremptory challenges based on race:

Under Batson and its progeny, the opponent of a | (¡peremptory strike must first establish a prima facie case of purposeful discrimination. Second, if a pri-ma facie showing is made, the burden shifts to the proponent of the strike to articulate a race-neutral explanation for the challenge. Third, the trial court then must determine if the opponent of the strike has carried the ultimate burden of proving purposeful discrimination. Batson, 476 U.S. at 94-98, 106 S.Ct. 1712. See also, Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005); State v. Sparks, 1988-0017 (La.5/11/11), 68 So.3d 435, 468; State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, 448.

The Court explained that in order to establish a prima facie case, the objecting party must show: “(1) the striking party’s challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the peremptory was used to strike the venireperson on account of his being a member of that cognizable group.” Id., 10-1724, 10-1726, pp. 9-10, 85 So.3d at 29. Once the objecting party has met these requirements, the burden then shifts to the party who made the challenges to show race-neutral reasons for the challenges. Id., 10-1724, 10-1726, p. 10, 85 So.3d at 29. As noted in Nelson;

To rebut a prima facie showing of intentional discrimination, the proponent of a peremptory challenge must offer a race-neutral explanation. Batson, 476 U.S. at 97, 106 S.Ct. 1712. See also, Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008); Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770, 131 L.Ed.2d 834 (1995). This explanation does not have to be persuasive, or even plausible, but must be more than a mere affirmation of good faith or assumption that the challenged juror would be “partial to the defendant because of their shared race.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769; Hernandez [v. New York], 500 U.S. [352] at 360, 111 S.Ct. 1859 [114 L.Ed.2d 395 (1991)]; Batson, 476 U.S. at 97, 106 S.Ct. 1712. At the second step of the Batson inquiry, the issue is the facial validity of the striking party’s explanation. Purkett, 514 U.S. at 768, 115 S.Ct. 1769; Hernandez, 500 U.S. at 360, 111 S.Ct. 1859; Sparks, 68 So.3d at 474. Unless a discriminatory 17intent is inherent in the striking party’s explanation, the reason offered will be deemed race-neutral. Id.

10-1724, 10-1726, p. 11, 85 So.3d at 30.

In the third step, “the court must then determine whether the objecting party has carried his burden of proving purposeful discrimination.” Id., 10-1724, 10-1726, p. 15, 85 So.3d at 32. The “final step involves evaluating ‘the persuasiveness of the justification’ proffered by the striking party, but ‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ ” Nelson, 10-1724, 10-1726, p. 15, 85 So.3d at 32, quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). “ ‘[I]t is not until the third step that the persuasiveness of the justification becomes relevant-the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.’ ” Id.

After the first round of voir dire, the State exercised four peremptory challenges, all against potential African-American jurors. Counsel for Mr. Nora initially raised a Batson challenge, and asked the State to provide race-neutral reasons for its peremptory challenges. Without waiting for the trial court to find that the defense made a prima facie case, the prosecutor gave reasons for striking each of the four jurors. The fact that the trial court did not find a prima facie showing is irrelevant; as noted in Nelson, once the party making the peremptory challenges provides race-neutral reasons, the issue of a prima facie showing is moot. 10-1724, 10-1726, p. 10, 85 So.3d at 29.

With respect to its peremptory challenges, the prosecutor noted that one | ^potential juror was not paying attention during voir dire; one said she believed that people needed guns to protect themselves, and the prosecutor thought she may be biased against the State if one of the defendants raised this as a defense; one “was all over the place,” seeming to require each witnesses’ testimony to be exactly the same as other witnesses; and one adamantly agreed with defense counsel that the defendants need not testify, and she rolled her eyes during the discussion of this issue during voir dire (Juror Ramsey). The trial court found that the State had provided racially-neutral reasons for the peremptory challenges. The trial court then noted that the State had stricken only four jurors out of twenty-one potential jurors, and the trial court denied the Batson claim. Counsel for Mr. Nora objected to the trial court’s denial of the Batson challenge, asserting that, as to Juror Ramsey, she was merely indicating her willingness to follow the law.

Although counsel for Mr. Nora objected to the denial of the Batson challenge, La. C.Cr.P. art. 842 provides that “[i]f an objection has been made when more than one defendant is on trial, it shall be presumed, unless the contrary appears, that the objection has been made by all the defendants.” Mr. Celestine’s counsel did not exclude Mr. Celestine from the objection regarding the Batson challenge. Therefore, Mr. Celestine properly preserved the argument for appeal.

Mr. Celestine avers that the trial court erred in its ruling only as to Juror Ramsey. Mr. Celestine contends that the reasons supplied by the prosecutor were not race-neutral, and he asserts that once the State gave its reasons, the trial court failed to conduct step three of the Batson analysis to determine if the reasons supplied were indeed race-neutral.

Juror Ramsey agreed with Mr. Celes-tine’s counsel’s statement that the defendants need not testify at trial. Mr. Celes-tine contends that this statement is a l9correct interpretation of the law, and if this was not a pre-textual reason, then the State would have had a basis to strike every juror who could follow the law. However, Juror Ramsey’s “adamant” agreement with the statement, not the fact that she agreed with it, could be an indicator that she would be more inclined to side with the defense than the State. The prosecutor also stated that Juror Ramsey rolled her eyes during the voir dire discussion of the defendants’ right not to testify. Mr. Celestine asserts that the trial court erred by finding that this was a race-neutral reason.

As noted in Nelson, the race-neutral reason given is valid “[ujnless a discriminatory intent is inherent.” 10-1724, 10-1726, p. 11, 85 So.3d at 30. Juror Ramsey’s actions could be an indicator that she would favor the defense and the reasoning provided by the State was not inherently discriminatory. Therefore, the trial court did not abuse its discretion by finding the State’s reasoning to be race-neutral.

CLOSING ARGUMENTS

Mr. Celestine asserts that the trial court erred by overruling his objections to improper argument by the State during rebuttal argument that was based on alleged personal attacks against defense counsel that allegedly bolstered the credibility of the NOPD witnesses.

As per La.C.Cr.P. art. 774, the scope of closing argument “shall be confined to the evidence admitted, to the lack of evidence, to conclusions of fact that the | instate or defendant may draw therefrom, and to the law applicable to the case.” La.C.Cr.P. art. 774 further provides that closing argument “shall not appeal to prejudice,” and the State’s rebuttal argument “shall be confined to answering the argument of the defendant.” A prosecutor “should refrain from making personal attacks on defense strategy and counsel.” State v. Manning, 03-1982, p. 75 (La.10/19/04), 885 So.2d 1044, 1108. While jurisprudence has found that prosecutors may not refer to “personal experience or turn” their “argument into a plebiscite on crime,” nonetheless prosecutors have “wide latitude in choosing closing argument tactics.” State v. Clark, 01-2087, p. 15 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, 1183.

As noted by this Court in State v. Jones, 10-0018, p. 9 (La.App. 4 Cir. 11/10/10), 51 So.3d 827, 833:

Even where a prosecutor’s argument has exceeded the scope of art. 774 or is deemed to be improper, a reviewing court should credit the good sense and fairmindedness of the jurors who have heard the evidence. State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703; Clark, State v. Ricard, 98-2278, 99-0424 (La.App. 4 Cir. 1/19/00), 751 So.2d 393. In addition, “a reviewing court will not reverse a conviction unless ‘thoroughly convinced’ that the argument influenced the jury and contributed to the verdict.” Clark, at p. 15, 828 So.2d at 1173. See also State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583; [State v.]Casey, supra [1999-0023 (La.1/26/00), 775 So.2d 1022]; State v. Wiltz, 2008-1441 (La.App. 4 Cir. 12/16/09), 28 So.3d 554. As the Court noted in Draughn: “Mistrial is a drastic remedy, and the determination of whether prejudice to the defendant has resulted from the prosecutor’s comments lies in the sound discretion of the trial judge. State v. Leonard, 2005-1382, p. 11 (La.6/16/06), 932 So.2d 660, 667. Moreover, a trial judge has broad discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La.1981).” Draughn, 950 So.2d at 614.

Mr. Celestine avers that several statements the prosecutor made during Inrebuttal argument bolstered the NOPD officers’ credibility and cast aspersions on his defense counsel for attempting to impeach the NOPD officers. However, neither defense counsel objected to the later statements. See La.C.Cr.P. art. 842. A defendant must make a contemporaneous objection in order to preserve an alleged error for review. State v. Carter, 589 So.2d 1212, 1214 (La.App. 4th Cir.1991). La.C.Cr.P. art. 841 provides that no “irregularity” may be considered unless the party objects to it at the time of occurrence. As noted by this Court in State v. Taylor, 91-2496, p. 5 (La.App. 4 Cir. 3/29/94), 635 So.2d 416, 420, “[t]he contemporaneous objection rule exists, not only so that a trial judge may correct the error at the time it is made, but it also serves notice in the record that the complained of conduct was so noticeable as to create prejudice in the minds of the jurors.” Thus, Mr. Celestine failed to preserve any argument as to the later statements made by the prosecutor to which he failed to object, and he cannot raise any claim on appeal.

The remainder of the statements, to which Mr. Celestine’s counsel objected and which are preserved for appeal, were made in response to the arguments made by counsel for Mr. Celestine and his code-fendant, Mr. Nora. Mr. Celestine’s counsel questioned Officer Holloway about the arrest credits that he and Officer Burras received in connection with the arrests of Mr. Celestine. Officer Holloway stated that police districts were rated on the number of arrest credits. Mr. Celestine’s counsel questioned why the green shirt, inside of which the firearm on Mr. Celes-tine’s lap was allegedly concealed, was not seized. Mr. Celestine’s [ ^counsel also commented on the NOPD officers’ policy of having each other’s “backs.”

During closing argument, Mr. Celes-tine’s counsel discussed that the NOPD officers did not seize the green shirt. She emphasized that there was no physical evidence linking Mr. Celestine to a firearm. Mr. Celestine’s counsel noted that the police report did not contain information regarding the “thud” that the NOPD officers allegedly heard, which alerted them to the firearm in the back seat near Mr. Celes-tine. She postulated that the NOPD officers invented the story that Mr. Celestine had the firearm in his lap in order to support the arrest of Mr. Celestine. Mr. Celestine’s counsel also mentioned the arrest points that Officer Holloway testified NOPD officers received for each arrest, arguing that the NOPD officers arrested Mr. Celestine in order to boost the total. She theorized that the NOPD officers arrested everyone in the vehicle so the arres-tees’ credibility would be compromised if they took the stand and disputed the NOPD officers’ testimony. Mr. Celestine’s counsel maintained that the inconsistencies in the NOPD officers’ testimony were due to the NOPD officers attempting to tailor their testimony to support each other.

Mr. Nora’s defense counsel reiterated some of this argument, insisting that the NOPD officers concocted the story of the firearm in Mr. Celestine’s lap in order to justify the arrest of the defendants. Mr. Nora’s counsel stated: “This is again, one of the thing, same thing all over again. I’ve heard it so many times in the media. Federal court [sic] officers covering up. This is just similar. And, how do you know that, because the three of them, well especially the two of them, couldn’t keep their stories straight.” Mr. Nora’s counsel also referred to Officer Burras laughing when she asked him why the “thud” was not included in the police |13report. She stated: “He thinks this is a joke. It’s not a joke. It’s not a joke at all.”

On rebuttal, the prosecutor argued that the closing argument by defense counsel for both defendants was an attack on the NOPD officers’ veracity. The prosecutor stated: “Marcus Aurelius, some may know, had a quote. He was also a lawyer. And his quote was this, “When you have nothing else let them blame the victim.’ They have nothing else. So what do they do? They turn to the age old — or at least in this building — blame the cops.” Counsel for Mr. Celestine objected on the basis that the comments were a personal attack on defense counsel. The trial court overruled the objection, and the prosecutor continued:

And you listen to them. And you listen to [counsel for the codefendant] say the media. And they said federal court, and, you know, the cops lie. Oh, come on. What is she trying to do? She’s trying to do what her [sic] and [the appellant’s counsel] have been doing throughout this trial, blame and then pander to you, pander to you twelve jurors. And it’s been obvious. You heard the little semantics played that I had to object to during voir dire, “beyond all reasonable doubt.”
When you listen to those instructions and Judge is going to read when I sit down, listen to if that’s in there. Listen to the differences of statements that you hear. They’ve been pandering and they sit and they want to invoke the federal court just to try to inflame you.
Ladies and gentlemen, federal court has nothing to do with this. And I asked you all during the course of voir dire can you judge each person individually as to their credibility when they take that witness stand. These gentlemen took this witness stand. Officer Holloway, a nineteen year veteran [of the] New Orleans Police Department. You heard — and they didn’t want it to come out — that how much longer do you have? “I want to retire.” He’s not here for this grand conspiracy of arrest credits. This man works from 11:00 to 7:00 all over the Fifth District. Do you think he’s out there after nineteen years looking for a promotion.

Mr. Celestine’s counsel objected, asserting that the prosecutor was bolstering the ^^credibility of the NOPD officers. The trial court overruled the objection.

Mr. Celestine asserts that this argument was improper because it constituted a personal attack on his defense counsel and bolstered the NOPD officers’ credibility. With respect to “bolstering” the NOPD officers’ credibility, Mr. Celestine’s counsel argued to the jury that the NOPD officers were unworthy of belief. Mr. Nora’s counsel invoked notorious, unrelated federal cases where NOPD officers lied. Thus, the prosecutor’s argument with respect to the credibility of the NOPD officers and their lack of reason to lie directly fell within the scope of rebuttal argument under La.C.Cr.P. art. 774. “Argument on the credibility of a witness is proper where the facts bearing on the witness’ credibility appear in the record.” State v. Sayles, 395 So.2d 695, 697 (La.1981). In State v. Smith, 554 So.2d 676, 681 (La.1989), the Court stated:

[I]t has consistently been held to be reversible error for the prosecutor to express his belief in the guilt of the accused, or the credibility of a key witness, where doing so implies that he has additional knowledge or information about the case which has not been disclosed to the jury. State v. Kaufman, supra [304 So.2d 300 (La.1974)]; State v. Harrison, 367 So.2d 1 (La.1979); State v. Hamilton, 356 So.2d 1360 (La.1978); State v. May, 339 So.2d 764 (La.1976) (recognizing the stated rule but finding that the prosecutor’s comment did not imply to the jury that he had personal knowledge of facts not presented to them indicating the defendant’s guilt).

Mr. Celestine contends that the comments about both defense counsel “pandering” to the jury by accusing the NOPD officers of lying and discussing unrelated federal cases involving untruthful police officers constituted personal attacks. Mr. Celestine asserts that the alleged personal attacks on his counsel 11sdeprived him of a fair trial.

Most of the comments concerning Mr. Celestine’s counsel were pointing out both counsel for Mr. Celestine and counsel for Mr. Nora’s attempts to shift the focus from the defendants to the NOPD officers. Crediting the common sense and fair-mindedness of the jury, we do not find that the use of the word “pandering” by the prosecutor improperly influenced the jury and contributed to the verdict. Therefore, we find that the trial court did not err in overruling objections to the State’s closing argument and affirm.

DECREE

For the above-mentioned reasons, we find that the trial court did not abuse its discretion in denying the Batson challenge regarding Juror Ramsey or overruling objections to the State’s remarks during closing arguments and rebuttal. Therefore, we affirm Mr. Celestine’s convictions and sentence.

AFFIRMED.

      . Karell Nora a/k/a Steven Patterson was also charged with one count of possession of a firearm by a felon. He was found guilty and sentenced to serve twenty years at hard labor.

      . Officer Holloway stated that no mention of the firearm making a sound as it hit the floor of the vehicle was contained in the police report.

      . Sidney Patterson’s legal name is Karrell Nora.

      . La.C.Cr.P. art. 795 states in pertinent part: C. No peremptory challenge made by the state or the defendant shall be based solely upon the race or gender of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race or gender, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory race or gender neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.

      . Mr. Nora and Mr. Celestine were tried to- gether as codefendants.

      . During the second round of voir dire, the State raised a reverse-Batson claim against counsel for Mr. Nora, the same counsel who raised the Batson claim against the State. In giving her reasons for striking one of the jurors, counsel noted that that juror kept rolling her eyes. The trial court found that this reason was race-neutral. Therefore, this reason cannot be race-based for one party and race-neutral for the other party.

      . The closing arguments made by both Mr. Celestine's counsel and Mr. Nora's counsel must be examined because the State’s rebuttal remarks were made in response to the closing arguments in toto.

      . Smith was overruled on other grounds regarding the ability of the Court to consider assignments of error in death cases in the absence of a contemporaneous objection in State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    NEW ORLEANS CRAFT TEMPLE, INC., New Orleans Craft Temple Foundation, Inc., Eric Hahn, Connie Hahn, Stephanie Hahn, Anni Hahn, John Buttone, III, Joseph Gilardi, Jr., Joseph Gilardi, III v. GRAND LODGE OF FREE AND ACCEPTED MASONS OF THE STATE OF LOUISIANA, Frank N. Dutreil, Jr., Jason Bruzik, Roy Tuck, Lloyd Hennigan, Woody Bilyeu.
    No. 13-CA-525.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      James Casey Fos, Attorney at Law, Covington, Louisiana, for Plaintiff/Appellant.
    Elizabeth A. Roussel, Margot L.K. Want, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT M. MURPHY.
   FREDERICKA HOMBERG WICKER, Judge.

12Plaintiffs, current and former members of masonic-affiliated organizations, filed suit against defendants, the Grand Lodge of Free and Accepted Masons (“Grand Lodge”) and individual officers or members of the Grand Lodge, arising out of the implemented disciplinary procedure, resulting in plaintiffs’ expulsion, suspension, or reprimand from the defendant-organization, Grand Lodge. Plaintiffs appeal the trial court’s judgment sustaining defendants’ exceptions of no cause of action, dismissing plaintiffs’ suit. For the following reasons, we reverse the trial court’s judgment sustaining defendants’ exceptions as to plaintiffs’ breach of contract claim and claims for wrongful expulsion, suspension, and reprimand, and remand the matter for further proceedings. We further find that the trial court correctly sustained defendants’ exceptions as to plaintiffs’ defamation claims and, in all other respects, we affirm the trial court judgment.

I,FACTUAL AND PROCEDURAL HISTORY

Plaintiffs-appellants, Eric Hahn, John Buttone, III, Joseph Gilardi, Jr., and Joseph Gilardi, III, filed a petition for damages against the Grand Lodge of Free and Accepted Masons of the State of Louisiana and other individual officers or members of the Grand Lodge. Plaintiffs’ claims against defendants arise out of their membership in masonic-related organizations and their subsequent expulsion, suspension, or reprimand from the Grand Lodge. Plaintiffs allege that defendants lacked authority or jurisdiction to expel, suspend, or reprimand plaintiffs; failed to provide plaintiffs adequate notice of the pending charges against them; defamed plaintiffs by accusing them of violating Mason law and publishing the news of plaintiffs’ expulsion, suspension, and reprimand in the Grand Lodge’s annual report; acted arbitrarily and capriciously by failing to file formal charges against them or hold a trial, as required by long-standing Masonic law; and failed to follow the long-standing Masonic rules or law, thereby breaching the alleged contract between the parties.

Defendants filed exceptions of no cause of action. As to plaintiffs’ defamation claims, defendants asserted that plaintiffs failed to properly state any defamation claim because the alleged defamatory statements — that plaintiffs had been expelled, suspended, or reprimanded — were true and, thus, plaintiffs could not prove the falsity of the statements to support their claims. As to plaintiffs’ other claims, defendants asserted that they followed the Grand Lodge’s internal | ¿procedures and provided adequate notice to plaintiffs of the pending disciplinary circumstances. Defendants argued that Louisiana courts generally do not interfere with the internal procedures and discipline of a private organization and that plaintiffs’ allegations do not warrant the court’s interference in this case.

Plaintiffs opposed the exception, arguing that they have in fact stated a cause of action for wrongful expulsion, suspension, or reprimand and that defendants’ arbitrary and capricious conduct warrants the court’s interference in this case. Plaintiffs also asserted that the petition pleads a defamation action against both the Grand Lodge and the individual defendants. As to the Grand Lodge, plaintiffs alleged that the Grand Lodge defamed plaintiffs when it published in its annual report the news that plaintiffs had been expelled, suspended, or reprimanded by the organization. As to the individual defendants, plaintiffs alleged the defendants made defamatory statements, accusing plaintiffs of “unmason conduct,” during local lodge meetings or hearings.

On November 30, 2012, the trial court conducted a hearing on defendants’ exceptions. The trial judge sustained defendants’ exceptions, finding that the court should not interfere with the internal procedures of the private organization defendant, Grand Lodge. Regarding plaintiffs’ defamation claims, the trial judge found that plaintiffs failed to allege two vital elements of their defamation claims — a false statement and damages. On January 8, 2018, the trial judge issued a written judgment sustaining defendants’ exceptions of no cause of action, dismissing plaintiffs’ claims.

Plaintiffs appeal that judgment, asserting that the trial judge failed to accept the well-pleaded allegations of plaintiffs’ petition as true; failed to address or rule | r,on plaintiffs’ breach of contract claim; and erred in sustaining defendants’ exceptions of no cause of action as to plaintiffs’ claims for defamation, breach of contract claim, and wrongful expulsion, suspension, and reprimand. For the following reasons, we find plaintiffs validly stated a cause of action for their breach of contract and wrongful expulsion, suspension, or reprimand claims and we therefore reverse the trial court’s judgment sustaining defendants’ exceptions of no cause of action as to those claims. We further find that plaintiffs failed to validly state a claim for defamation against defendants and we therefore affirm the trial court judgment regarding that claim.

DISCUSSION

An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Indus. Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207, 1213. The exception of no cause of action is triable on the face of the petition. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882 (La.5/15/01), 785 So.2d 803, 806. Cause of action, as used in the context of the peremptory exception, means the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. Wood v. Omni Bancshares, Inc., 10-216 (La.App. 5 Cir. 4/26/11), 69 So.3d 475, 479-80.

The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Whether the plaintiff can prove the allegations set forth in the petition is not determinative of the exception of no cause of action. Wood, 69 So.3d at 480. Because the trial of the exception is 16solely on the face of the pleadings, the court may not go beyond the petition to the merits of the case. Id.

An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Indus. Companies, Inc., 837 So.2d at 1213. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. In re Succession of Russo, 12-32 (La.App. 5 Cir. 5/22/12), 96 So.3d 1231, 1234.

The mover has the burden of demonstrating the petition states no cause of action. The pertinent question is whether, in the light most favorable to the plaintiff and with every doubt resolved in the plaintiffs behalf, the petition states a valid cause of action for relief. Pinegrove Elec. Supply Co., Inc. v. Cat Key Const., Inc., 11-660 (La.App. 5 Cir. 2/28/12), 88 So.3d 1097, 1100.

In this appeal, plaintiffs assert that the trial court erred in failing to accept the allegations pled in their petition as true and in failing to find plaintiffs adequately stated a cause of action for defamation, breach of contract, and 'wrongful expulsion, suspension, or reprimand. Defendants respond that the trial court correctly found that courts will generally not interfere with the management or affairs of private organizations such as defendant-organization, Grand Lodge, and assert the trial court’s judgment should be affirmed.

Generally, courts should not interfere with the internal affairs of a private association. Jones v. Nat’l Collegiate Athletic Ass’n, 96-2205 (La.9/12/96), 679 So.2d 381, 382. However, the Louisiana Supreme Court has stated that a court’s interference may be warranted “in cases when the affairs and proceedings have not 17been conducted fairly and honestly, or in the cases of fraud, lack of jurisdiction, the invasion of property or pecuniary rights, or when the action complained of is capricious, arbitrary, or unjustly discriminatory.” Id.; See also Heuer v. Crescent River Port Pilots’ Assn., 158 So.2d 221 (La.App. 4th Cir.1963), writ refused sub nom. Heuer v. Crescent River Port Pilots’ Assn., 245 La. 580, 159 So.2d 288 (1964), cert. denied, 377 U.S. 935, 84 S.Ct. 1333, 12 L.Ed.2d 298 (1964); Sanders v. Louisiana High Sch. Athletic Ass’n, 242 So.2d 19, 25 (La.App. 3rd Cir.1970); Heath v. McCarthy, 41,853 (La.App. 2 Cir. 1/24/07), 948 So.2d 363, writ denied, 07-0358 (La.3/30/07), 953 So.2d 69; Flint v. St. Augustine High School, 323 So.2d 229 (La.App. 4th Cir.1975), writ denied, 325 So.2d 271 (La.1976). Thus, under certain circumstances, a cause of action may be sufficiently pled for damages arising out of wrongful expulsion, suspension, or reprimand from a private organization.

In their original and supplemental petitions, plaintiffs alleged that defendants lacked the authority or jurisdiction to issue the disciplinary actions against them; that defendants failed to provide adequate notice of the charges against them; and acted arbitrarily and capriciously in failing to hold a trial as required by long-standing Masonic rules or laws. Upon review of plaintiffs’ petitions, we find that | ^plaintiffs have sufficiently stated a cause of action against defendants for damages arising out of their alleged wrongful expulsion, suspension, and reprimand.

Regarding their breach of contract claim, plaintiffs assert that the trial court erred in failing to consider their breach of contract claim. First, we find that the trial judge sustained defendants’ exceptions of no cause of action and dismissed plaintiffs’ suit in entirety. Therefore, the trial judge sustained defendants’ exceptions of no cause of action as to all claims pled in the plaintiffs’ original and supplemental petitions, including plaintiffs’ asserted breach of contract claim.

To support their breach of contract claim, Plaintiffs alleged in their petitions that mason organizations, with a history extending back more than 500 years, have a highly developed and long-standing code of rules governing the organization. Plaintiffs contend that the “Handbook of Masonic Law for the Grand Lodge of the State of Louisiana” is a contract governing the Grand Lodge organization and its members. Defendants reject this assertion and argue that plaintiffs have failed to prove a contract existed between the parties.

In order to succeed on a breach of contract claim, the plaintiffs must prove the existence of a contract, a breach of the obligations therein, and damages. Favrot v. Favrot, 10-0986 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1109, writ denied, 11-0636 (La.5/6/11), 62 So.3d 127. Louisiana courts have found that the laws of an association constitute a contract between the parties. Ermert v. Hartford Ins. Co., 559 So.2d 467, 473 (La.1990); In re John Butts v. Society of the Young Men Vidalia, 6 Teiss. 127 (La.App.Orleans 1909), 1909 WL 1579. “Under both civilian and common law theory, an unincorporated association is created in the same manner as a partnership, by a contract between two or more persons to combine their efforts, resources, knowledge or activities for a purpose other than profit or commercial benefit.” Id.; See also United Brotherhood of Carpenters Local 1846 v. Stephens Broadcasting Co., 214 La. 928, 938, 39 So.2d 422, 425 (La.1949) (the charter, constitution and by-laws of an association “constitute and are the contract between the members and the association”).

Upon review of plaintiffs’ petitions in this matter (and accepting plaintiffs’ well-pleaded allegations as true), we find that plaintiffs have sufficiently pled that a contract between the parties exists. Plaintiffs have further alleged that defendants, in failing to comply with any of the procedural requirements provided in the Masonic Law Handbook, have breached the contract between the parties and that, as a result of defendants’ breach, they have suffered damages. Therefore, we find plaintiffs have sufficiently stated a cause of action for breach of contract to defeat defendants’ exception of no cause of action as to that claim. We therefore reverse the trial court’s judgment sustaining defendants’ exceptions of no cause of action as to plaintiffs’ claims for damages for breach of contract and wrongful expulsion, suspension, or reprimand.

Regarding their defamation claims, plaintiffs contend the trial court erred in sustaining defendants’ exceptions of no cause of action and assert that their petitions state a valid cause of action against defendants for defamation. In their original and supplemental petitions, plaintiffs alleged that defendants defamed their reputations within the Mason community.

As to the individually named defendants, officers and members of the Grand Lodge, plaintiffs claimed that defendants defamed them at local lodge meetings by accusing plaintiffs of violating masonic law and enriching themselves individually to the detriment of the Mason community. Plaintiffs alleged that defendants accused plaintiffs of asking for money from lodge members for the purchase of stock in the New Orleans Craft Temple, a mason-affiliated organization, without | ^authorization and for only their own personal gain and not for the benefit of any mason-related organization.

As to the Grand Lodge defendant-organization, plaintiffs alleged that the Grand Lodge defamed them by publishing and disseminating to the masonic community, in its annual report, the news of plaintiffs’ expulsion, suspension, and reprimand.

In support of their exceptions of no cause of action, defendants argued that plaintiffs could not prove one element of their defamation claim — falsity of the alleged statements — because the expulsion, suspension, and reprimand did in fact occur and, thus, the statements made were truthful. Plaintiffs concede that the publication of the disciplinary actions was truthful but argue that the publication caused others to infer that plaintiffs committed wrongful acts, which they contend is false.

The trial judge sustained defendants’ exceptions of no cause of action related to plaintiffs’ defamation claims, finding that plaintiffs failed to state allegations to prove necessary elements of their claims, falsity of the statements and damages. In this appeal, plaintiffs complain that the trial judge erred in sustaining defendants’ exceptions and improperly considered defendants’ truth defense to their defamation claims. Upon review of the record, we find plaintiffs failed to allege all necessary elements to support their defamation claims against defendants and affirm the trial court’s judgment with regard to those claims.

Defamation is a tort which involves the invasion of a person’s interest in his reputation and good name. Huxen v. Villasenor, 01-288 (La.App. 5 Cir. 9/25/01), 798 So.2d 209, 212. To maintain an action for defamation, a plaintiff must prove (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. If even one of the required elements of the tort of defamation is lacking, the cause of action fails. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, 140; Newcomer v. Bennett, 09-27 (La.App. 5 Cir. 10/13/09), 27 So.3d 858, 860-61.

As to the individually named defendants, we find plaintiffs’ petitions do not allege a vital element of their defamation claim — actual or implied malice. In their petitions, plaintiffs alleged that defendants accused them of violating masonic law and participating in the unauthorized sale of stock for their personal gain or enrichment. Plaintiffs alleged that defendants made these false statements at local lodge meetings and that such statements damaged their reputations in the Mason community.

In order to sufficiently plead a claim for defamation against the individual defendants, plaintiffs must allege that defendants made these statements with malice, actual or implied. Malice, for purposes of the tort of defamation, is a lack of reasonable belief in the truth of the statement giving rise to the defamation. Costello, supra, 864 So.2d at 143; Williams v. Nexstar Broad., Inc., 11-887 (La.App. 5 Cir. 4/10/12), 96 So.3d 1195, 1199-1200. Upon review of plaintiffs’ original and supplemental petitions, we find that plaintiffs failed to allege any operative facts upon which to support the necessary element of their claim against the individual defendants — that defendants made the alleged defamatory statements with actual or implied malice or with a lack of reasonable belief therein. 112Because plaintiffs’ petitions lack allegations to support one required element of their defamation claim, the cause of action fails. Costello, 864 So.2d at 140.

Regarding the defamation claims asserted against the Grand Lodge, we also find that plaintiffs’ petitions do not allege a vital element of their defamation claim against the Grand Lodge — falsity of the alleged defamatory statements. In then* original and supplemental petitions, plaintiffs assert that the Grand Lodge did in fact take adverse disciplinary actions against them. Plaintiffs state in their petitions that the expulsion, suspension, and reprimand did in fact occur. Further, in brief to this Court, plaintiffs further concede that the published statements reporting the disciplinary actions taken against plaintiffs were in fact true. We find that, as to the defamation claims asserted against the Grand Lodge, plaintiffs have failed to state allegations to support a necessary element of their defamation claim — falsity of the alleged defamatory statement. Consequently, plaintiffs’ defamation action against the Grand Lodge also fails. Therefore, we find the trial court was correct in sustaining defendants’ exceptions of no cause of action as to plaintiffs’ defamation claims.

CONCLUSION

Accordingly, for the reasons provided herein, we reverse the trial court’s judgment sustaining defendants’ exceptions of no cause of action relating to plaintiffs’ claims for breach of contract and wrongful expulsion, suspension, or reprimand, and remand the matter to the trial court for further proceedings. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . Plaintiffs assert that the Grand Lodge is the umbrella organization for the various local chapters or lodges of the Masons in the state of Louisiana. The individually named defendants are Frank N. duTriel, Jr., Jason Bruzik, Roy Tuck, Lloyd Hennigan, and Woody Bilyeu. The petition alleges that the individually named defendants are either Grand Lodge officers or members of the law and jurisprudence committee for the Grand Lodge.

      . In the original petition for damages filed in this matter, named plaintiffs also included New Orleans Craft Temple, Inc., New Orleans Craft Temple Foundation, Inc. and Connie Hahn, Stephanie Hahn, and Anni Hahn. However, New Orleans Craft Temple, Inc.’s suit (alleging breach of contract and LUPTA claims) was voluntarily dismissed on November 14, 2012. Defendants filed an exception of no cause of action against female plaintiffs Connie Hahn, Stephanie Hahn, and Anni Hahn, which the trial court sustained on August 8, 2012. The other remaining plaintiff, New Orleans Craft Temple Foundation, Inc., has not appealed the judgment at issue and its claims are not before this Court.

      . Defendants previously filed exceptions of no cause of action in response to plaintiffs' original petition for damages. On July 13, 2012, the trial court sustained defendants’ exceptions but allowed plaintiffs thirty days to amend their petition to state a cause of action. On August 13, 2012, plaintiffs filed a supplemental and amending petition asserting allegations discussed herein.

      . In support of their position, defendants cite the Louisiana Fourth Circuit case Leary v. Foley, 07-0751 (La.App. 4 Cir. 2/13/08), 978 So.2d 1018, 1021, writ denied, 08-0589 (La.5/2/08), 979 So.2d 1288, which states that "Louisiana does not provide a cause of action for damages for wrongful expulsion from a private social club.” One of the judges on that panel, concurring with reasons, stated that, "while I agree that the facts as alleged by Mr. Leary in his petition for damages ... do not state a cause of action for the ‘wrongful expulsion' of his membership in the Tally-Ho Club, I cannot say that Louisiana law does not provide a cause of action for damages for the wrongful expulsion from a private social club.” Id. at 1022.
      In light of the Louisiana Supreme Court’s indication in Jones, supra that, under certain circumstances, a court will in fact interfere with the affairs of a private organization (and, thus, a cause of action may exist), we disagree with the Fourth Circuit's decision in Leary and decline to apply it in this case.

      . In their supplemental petition, plaintiffs alleged that the Handbook for Masonic Law for the Grand Lodge of the State of Louisiana provides that a member must be disciplined by its own local lodge and that the Grand Lodge, or umbrella organization, does not have jurisdiction or authority to discipline plaintiffs.

      . In their supplemental petition, plaintiffs alleged that the Masonic law provides that a member may not be disciplined, even by his own lodge, without the filing of formal charges notifying the member of the nature of the charges against him. Plaintiffs state in their petitions that they did in fact receive a summons to appear before the Grand Lodge but that the summons did not notify them of any formal charges against them or the nature of the proceedings.

      . Defendants also assert the defense of immunity for any alleged defamatory statements made during their investigation, claiming that the statements would have been made in the context of judicial or quasi-judicial proceedings. The record reflects that the trial judge did not consider this defense in rendering his judgment. Further, Plaintiffs do not raise this issue on appeal. Thus, we decline to address the issue of whether masonic organization "inquiries” or investigations qualify as judicial or quasi-judicial proceedings for purposes of an immunity defense to a defamation claim.

      . "Malice” in this context is to be distinguished from actual malice or publication with knowledge that a statement is false or made with reckless disregard for its truth, which is constitutionally required in certain cases. See Costello, supra.

      . Plaintiffs argue that because the underlying reason for the expulsion, suspension, or reprimand was false, that the claim should thus extend to allow recovery for the true statements (the news of the fact that the expulsion, suspension, and reprimand occurred) published in this case. Plaintiffs cite no case on point to support their position and we decline to allow a defamation claim to extend to the true statements at issue in this case.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    FIRST NBC BANK v. Stephen J. BROUSSARD.
    No. 13-CA-534.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Gregory J. St. Angelo, José Carlos Mén-dez, Attorneys At Law, New Orleans, Louisiana, for Plaintiff/Appellant, First NBC Bank.
    Gus A. Fritchie, III, Attorney At Law, Irwin Fritchie Urquhart & Moore LLC, New Orleans, Louisiana, for Defendant/Appellee, Stephen J. Broussard.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   SUSAN M. CHEHARDY, Chief Judge.

| aThis is a legal malpractice suit that was dismissed as perempted. The plaintiff appeals. We affirm.

FACTS

First NBC Bank (“FNBC”) filed suit against Stephen J. Broussard on March 17, 2011 in Civil District Court for the Parish of Orleans. The petition made the following allegations: Mr. Broussard is licensed to practice law in Louisiana. On June 30, 2008, FNBC entered into an agreement with H.E. Jones, Ltd. by which H.E. Jones granted a mortgage in favor of FNBC on certain property in St. Tammany Parish, Louisiana, to secure future payment of loans made by FNBC to H.E. Jones. FNBC retained Mr. Broussard, as an attorney, to examine title to the mortgaged property to ascertain whether the title was good and clear of liens and encumbrances. Mr. Broussard advised FNBC that the property was free and clear of any liens and encumbrances, when in fact the property was burdened by a special mortgage in favor of a third party, a bond for deed purchaser.

In reliance on Mr. Broussard’s advice, FNBC loaned money to H.E. Jones. H.E. Jones defaulted on its obligation and FNBC’s security was compromised, so it |awas unable to recoup the loans. FNBC sustained losses exceeding $900,000, as of March 11, 2009.

The petition alleged further that Mr. Broussard’s failure to properly and carefully examine the title to the mortgaged property was a breach of his duty to exercise reasonable care, skill, and diligence in representing his client, FNBC. The petition asserted that FNBC’s damages were proximately caused by Mr. Broussard’s breach of duty, without any negligence by FNBC contributing thereto.

Mr. Broussard filed a declinatory exception of improper venue, asserting that he is domiciled and resides in Jefferson Parish, so that the proper venue for a legal malpractice suit against him is Jefferson Parish, not Orleans Parish. The Orleans Parish judge denied the exception of improper venue oh November 10, 2011, but that ruling was vacated by the Fourth Circuit Court of Appeal, which found no basis for venue in Orleans Parish and remanded the case for transfer to the 24th Judicial District Court for the Parish of Jefferson. First NBC Bank v. Broussard, 2011-1678 (La.App. 4 Cir. 1/10/12) (unpublished writ disposition). The case was transferred and was filed in the 24th Judicial District Court on April 30, 2012.

On June 22, 2012, Mr. Broussard filed a peremptory exception of peremption in the 24th Judicial District Court. He asserted that the suit was filed more than one year after FNBC learned of its alleged cause of action against him, thus barring these claims under the one-year peremptive period set forth in La. R.S. 9:5605. He pointed out that FNBC alleged it sustained losses of over $900,000 as of March 11, 2009, resulting from errors he allegedly committed on or before June 30, 2008, when it was granted a mortgage by H.E. Jones.

Mr. Broussard asserted that his alleged error occurred on or before June 30, 2008, and that FNBC suffered damages as a result of that error no later than March |411, 2009. Because this suit was filed more than two years after both of those dates, Mr. Broussard asserted it is clearly barred by the one-year peremptive period of La. R.S. 9:5605.

In opposition to the exception, FNBC asserted it did not learn of Mr. Brous-sard’s error until it instituted its foreclosure proceedings against the mortgaged property. At that time the third party purchaser’s counsel sent a letter to FNBC, dated May 17, 2010, which demanded that FNBC voluntarily cancel its inscription.

At the hearing on January 10, 2013, counsel for Mr. Broussard admitted, for purposes of the exception, that FNBC filed the suit within one year of learning of the alleged malpractice. He argued, however, that it was not filed in the proper venue and the passage of a peremptive period may not be interrupted or suspended, so that peremption took place.

The trial court ruled from the bench, stating:

I am bound to follow the technical wording of the statute. And 9:5605 is abundantly clear that peremption is not interrupted, and the suit must be filed, must, not only in a court of competent jurisdiction, but in a site of proper venue. And out of the three sites that were eligible for venue, I think the case law is quite clear, and the 4th Circuit opinion is now final, Orleans Parish was not a proper site for venue. It is abundantly clear, in my opinion. The only other site that could arguably have been a site of the proper venue would have been St. Tammany Parish, but the suit wasn’t filed there. Because that’s the locale where records were reviewed, presumably. Because the suit was not filed within the one-year peremptive period and I got to say this. I don’t like the result, as I told you gentlemen in the back. I just find it personally distasteful. I grant the exception and I dismiss the suit with prejudice.

The court rendered a written judgment on January 30, 2013 that granted the exception of peremption and dismissed all claims of FNBC with prejudice.

FNBC appeals.

| .ARGUMENTS

On appeal FNBC asserts the trial court erred in granting Mr. Broussard’s Peremptory Exception of Peremption, because the filing of suit in Orleans Parish was a proper exercise of FNBC’s right of action, and the lapse of the period of peremption could not have extinguished the right. FNBC acknowledges that a peremptive period may not be renounced, interrupted or suspended. FNBC argues, however, that the ruling of the original trial court that venue was proper in Orleans Parish was an exercise of FNBC’s right of action, and from that point forward, the lapse of the period of peremption could not have extinguished the right, because the case remained pending through the present appeal. FNBC contends that when a right subject to peremption is properly exercised, lapse of the period of peremption will not extinguish the right so long as the case remains pending.

In opposition, Mr. Broussard contends the trial court correctly found that this suit was perempted because it was not filed in a parish of proper venue within one year of the date that FNBC learned of its cause of action.

LAW AND ANALYSIS

The statute governing actions for legal malpractice is La. R.S. 9:5605, which states in pertinent part:

A. No action for damages against any attorney at law duly admitted to practice in this state ... whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect. [Emphasis added.]
|fiB. ... The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state ... the prescriptive and peremptive period shall be governed exclusively by this Section.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

Venue

In Land v. Vidrine, 2010-1342, p. 9 (La.3/15/11), 62 So.3d 36, 42, the Louisiana Supreme Court stated,

The trial court that is tasked with determining whether the case is perempted must consider all the grounds for per-emption, including whether the case was timely filed in a court of proper venue.... [T]he “law of the case doctrine” is not applicable in the instant situation. In the absence of a legal barrier precluding consideration of the issue, we find the [transferor] trial court’s venue ruling should have been merely presented as evidence in support of the defendant’s exception of peremption, not as a conclusion of law. The [transferee] trial court is required to rule on venue only for purposes of deciding whether the cause of action is still viable; the determination, however, has no practical bearing on the actual choice of forum. In other words, the venue decision, when considered in the context of an exception of peremption, does not alter the location of the current and/or future proceedings of the case.... Thus, the only venue ruling in this case that is subject to review by the ... Court of Appeal is the venue finding that is incorporated into the peremption ruling by the trial court. This procedure ensures that the appellate courts are only-considering judgments within their jurisdiction. [Emphasis added.]

Land v. Vidrine, 2010-1342 at 9-10, 62 So.3d at 42.

Considering Land v. Vidrine, therefore, we must incorporate a decision on the proper venue with a decision on the merits of the exception of peremption.

|7FNBC originally filed this suit in Orleans Parish on March 17, 2011. The petition stated that the defendant was domiciled in Orleans Parish, that he had offices located in Jefferson Parish, that the plaintiff retained the defendant to examine the title of a property mortgaged to the plaintiff to secure a loan, and that due to a preexisting encumbrance on the title recorded in St. Tammany Parish, the plaintiff’s security was compromised and the plaintiff was unable to recoup its loans when the mortgagor of the property defaulted, leaving the plaintiff with losses of $900,016.42 as of March 11, 2009.

The defendant responded with a Decli-natory Exception of Improper Venue, in which he asserted he is a resident of Jefferson Parish, not Orleans Parish, and pursuant to La. C.C.P. art. 42 and applicable case law, Orleans Parish is not the proper venue for a legal malpractice suit in this matter. Attached to the exception was an Affidavit by the defendant, in which he stated that at all times pertinent hereto, he was a resident of Jefferson Parish, he conducted the title examination and execution of the mortgage at his office located in Jefferson Parish, and he did no legal work associated with his retention by plaintiff in Orleans Parish.

The general rule regarding venue provides that an action against an individual domiciled in the state shall be brought in the parish of his domicile. La. C.C.P. art. 42. The venue guidelines under Article 42 are subject to exceptions (alternatives) contained in “Articles 71 through 85 and otherwise provided by law.” La. C.C.P. art. 43.

La. C.C.P. art. 74 provides, “An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.”

The Louisiana Supreme Court has narrowed this exception for legal malpractice actions, holding that venue is proper in the parish where the wrongful |sconduct occurred. Chambers v. LeBlanc, 598 So.2d 337, 337-338 (La.1992). Recent cases focus on where the case was handled rather than where the case was filed. See, e.g., Belwise Agric. Sys., Inc. v. Lemke, 2005-69, p. 5 (La.App. 3 Cir. 6/1/05); 904 So.2d 940, 943, writ denied, 2005-1735 (La.1/27/06), 922 So.2d 547; Clarendon Nat. Ins. Co. v. Carter, 39,622, p. 6 (La.App. 2 Cir. 5/11/05); 902 So.2d 1142, 1144, writ denied, 2005-1567 (La.1/27/06), 922 So.2d 544; Frisard v. State Farm Fire and Casualty Company, 02-987, p. 4 (La.App. 5 Cir. 1/28/03); 837 So.2d 706, 707, writ denied, 2003-0969 (La.5/16/03), 843 So.2d 1138.

There is no evidence that Orleans Parish is a proper venue in this case. Rather, the weight of the evidence is that Jefferson Parish, where Mr. Broussard lives and where his offices are located and where he performed the work for FNBC, is the correct venue.

Peremption

Since the case was not filed in the correct venue, but had to be transferred from Orleans Parish to Jefferson Parish, the question is whether the case was timely when filed in Jefferson Parish.

“Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the per-emptive period.” La. C.C. art. 3458. “Peremption may not be renounced, interrupted, or suspended.” La. C.C. art. 3461.

[U]nder the provisions of La.Rev.Stat. § 9:5605, an action should not be found perempted if it is brought within one year of the date of discovery and the record shows that the claimant was reasonably unaware of malpractice prior to the date of discovery and the delay in filing suit was not due to willful, negligent, or unreasonable action of the client.”

Teague v. St. Paul Fire & Marine Ins. Co., 2007-1384, p. 12 (La.2/1/08), 974 So.2d 1266, 1275.

|flThe “date of discovery” from which prescription or peremption begins to run is the date on which a reasonable man in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship between them sufficient to indicate to a reasonable person he is the victim of a tort and to state a cause of action against the defendant.

Teague, 2007-1384 at 13, 974 So.2d at 1275.

La.Code Civ.P. art. 121 does not allow us to avoid the consequences of peremption in the interests of justice when a suit has been filed in a court of improper venue.... La.R.S. 9:5605 requires that suit be filed in a court of competent jurisdiction and proper venue within one year. The date of service is irrelevant.

Weatherly v. Fonseca & Associates, LLC, 2011-1323, p. 8 (La.App. 3 Cir. 6/6/12), 92 So.3d 1206, 1211, writ denied, 2012-1577 (La.10/12/12), 98 So.3d 875.

FNBC filed suit on March 17, 2011 in Orleans Parish. FNBC alleged it had sustained its losses from the defaulted mortgage by March 11, 2009. There is a nearly two-year gap between those dates. On the face of the petition, therefore, the one-year peremptive period had passed.

The provisions on prescription governing computation of time apply to per-emption. La. C.C. art. 3459. When an exception of prescription is filed, the burden of proof ordinarily is on the party pleading prescription. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992). If prescription is evident on the face of the pleadings, however, the burden shifts to the plaintiff to show the action has not prescribed. Eastin v. Entergy Corp., 2003-1030, p. 5 (La.2/6/04), 865 So.2d 49, 54.

FNBC has alleged no dates other than June 30, 2008, the date on which the mortgage was executed, and March 11, 2009, the date by which FNBC had sustained its losses. It has made no showing why it did not know or should not have known of the alleged malpractice by either of those dates. Both of those [inevents occurred more than one year before this suit was filed. FNBC clearly should have been aware of its cause of action against Mr. Broussard more than one year before it filed this suit. Consequently, these claims against Mr. Broussard are time-barred. The trial court did not err in granting the exception of peremption and dismissing this suit with prejudice.

DECREE

For the foregoing reasons, the judgment is affirmed. First NBC Bank is cast with costs of this appeal.

AFFIRMED.

      . The bond for deed contract was executed by Jimmy R. Ware, dated June 1, 2006, and was duly recorded with the Clerk of Court for the Parish of St. Tammany, Louisiana, on June 2, 2006.


author: MARC E. JOHNSON, Judge.

text:
    Nancy Williams, Wife of/and Franco VALOBRA v. Robert Allan NELSON and Jerome Garfield Smith, III as Cotrustees of the Allan R. & Louise S. Nelson Revocable Trust & The Allan R. Nelson Marital Trust (Trusts).
    No. 13-CA-448.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Joseph R. Ward, Jr., Attorney At Law, Covington, Louisiana, for Plaintiffs/Appellants.
    David F. Waguespack, Stephen P. Scul-lin, Attorneys At Law, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and STEPHEN J. WINDHORST.
   MARC E. JOHNSON, Judge.

[ gPlaintiffs/Appellants, Nancy Williams and Franco Valobra, seek review of the judgment sustaining the exception of no cause of action in favor of Defendants/Appellants, Robert Allan Nelson and Jerome Garfield Smith, III as co-trustees of the Allan R. & Louise S. Nelson revocable trust and the Allan R. Nelson Marital Trust (“the Trusts”), in a redhibition action through fraudulent inducement from the 24th Judicial District Court, Division “D”. For the foregoing reasons, the judgment is affirmed as amended and the matter is remanded to the trial court.

FACTS AND PROCEDURAL HISTORY

On April 25, 2012, Plaintiffs purchased the residence located at 415 Vincent Avenue in Metairie, Louisiana from the Trusts for $1,400,000.00. Louise and Allan Nelson had previously resided together in the residence until May 2006 when Allan passed away. Louise continued to live in the home until the sale of the property to Plaintiffs. On February 24, 2012, the Trusts, through their co-trustees ^Robert Nelson and Jerome Garfield Smith, III, executed a disclosure document attesting to the condition of the property. In the disclosure document, the Trusts represented that the property had few, if any, defects. When given the option to choose “yes,” “no,” or “no knowledge,” the Trusts checked the “no” boxes for each inquiry regarding defects in the property. The only reported defects were that there were isolated drainage issues and flooding attributable to the May 8, 1995 flood and Hurricane Katrina. Based upon the disclosure document executed by the Trusts and the pre-sale inspection, Plaintiffs signed a redhibition waiver that excluded the Trusts’ warranty against redhibitory defects in the property.

On October 12, 2012, Plaintiffs filed a Petition against the Trusts. In the Petition, Plaintiffs alleged the property was found to have numerous and major defects. Plaintiffs stated that they forwarded correspondence to the Trusts on August 20, 2012, requesting that the Trusts visit the property to review the defects and provide a reduction in the purchase price based upon the cost of the repairs. Plaintiffs further stated that in correspondence dated September 4, 2012, the Trusts denied any liability and asserted that they were never in a position to know of any defects that may have existed in the premises. Plaintiffs alleged the acts of the Trusts were in bad faith and constituted fraudulent inducement. Because of the fraud, Plaintiffs asserted that they could not be bound by the executed waiver of redhibition and said waiver was void.

On December 10, 2012, the Trusts filed an Exception of No Cause of Action. In the exception, the Trusts argued that Plaintiffs failed to state a claim in their Petition upon which relief could be granted because Plaintiffs did not allege that the Trusts knew of any redhibitory defects and failed to disclose them. The hearing on the exception was held on February 20, 2013. After taking the matter |4under advisement, the trial court sustained the exception on March 20, 2013. The instant appeal followed.

ASSIGNMENT OF ERROR

In their sole assignment of error, Plaintiffs alleged the trial court erred in sustaining the Trusts’ Exception of No Cause of Action.

LAW AND ANALYSIS

Plaintiffs allege the trial court erred in sustaining the Trusts’ Exception of No Cause of Action because they made the allegations that they were fraudulently induced into signing the waiver of warranty and the warranty was invalid in their Petition. Plaintiffs contend the Trusts fraudulently completed the disclosure form by failing to indicate on the form that they had no knowledge of whether the premises had defects as required by La. R.S. 9:3197(B)(1), and the Trusts induced them into signing the redhibition waiver by misrepresenting their knowledge. Plaintiffs also argue their allegation in the Petition that the defects of the premises were only discovered when their contractor began examining the property was a sufficient allegation that there were redhibitory defects in the property. Because the court must accept the facts pleaded as true, Plaintiffs maintain that they state a valid cause of action for fraudulent inducement in their Petition. Alternatively, Plaintiffs argue that if it is decided by this Court that they failed to state a cause of action, then they should be allowed to amend their Petition to cure any defects.

The Trusts contend that the trial court was correct in sustaining their Exception of No Cause of Action because Plaintiffs admit in their Petition that they waived the warranty of redhibition in the act of sale for the property. The Trusts argue that Plaintiffs failed to allege that the Trusts knew of the alleged redhibitory defects or willfully misrepresented any condition of the property in the disclosure form or otherwise. Since Plaintiffs failed to allege that the Trusts knew of the | ^alleged redhibitory defects and failed to disclose them, the Trusts maintain that Plaintiffs failed to state a redhibition claim on the face of the Petition. The Trusts assert that Plaintiffs’ effort to contort the property disclosure form into a warranty is baseless. The Trusts further contend that Plaintiffs had to plead fraud with particularity, which Plaintiffs failed to do in their Petition; thus, this Court should affirm the trial court’s ruling.

In reviewing a trial court’s ruling on a peremptory exception of no cause of action, the appellate court conducts a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. NOLA 180 v. Treasure Chest Casino, 11-853 (La.App. 5 Cir. 3/27/12); 91 So.3d 446, 449. A cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Show-Me Const., LLC v. Wellington Specialty Ins. Co., 11-528 (La.App. 5 Cir. 12/29/11); 83 So.3d 1156, 1159. The function of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Id.

No evidence may be introduced to support or controvert the exception raising the objection of no cause of action pursuant to La. C.C.P. art. 931, and for the purpose of determining the issues raised by the exception, all facts well-pleaded in the petition must be accepted as true. Id. “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” La. C.C.P. art. 934. If the grounds of the objection raised through the exception cannot be so removed, the action shall be dismissed. Id.

|(jA seller warrants to the buyer the absence of hidden defects in the thing sold, and also warrants that the thing is fit for its intended use. La. C.C.art. 2475. Redhibition is the right of a buyer to obtain rescission of the sale when the thing sold has defects that render it useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. La. C.C. art. 2520. La. C.C. art. 2548 allows parties to a sale to agree to exclude or limit the warranty against red-hibitory defects; however, the terms of the exclusion or limitation must be clear and unambiguous and must be brought to the attention of the buyer. Frey v. Walker, 01-709 (La.App. 5 Cir. 12/26/01); 807 So.2d 887, 890. A buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have. Id. “A seller with knowledge of a redhibitory defect, who, rather than informing the buyer of the defect opts to obtain a waiver of the warranty implied by law, commits fraud, which vitiates the waiver because it is not made in good faith.” Id. at 893, citing Boos v. Benson Jeep-Eagle Co., Inc., 98-1424 (La.App. 4 Cir. 6/24/98); 717 So.2d 661.

In the case at bar, Plaintiffs set forth the following pertinent allegations in their Petition:

* * *
3.
Prior to the sale, on February 24, 2012, defendants executed a disclosure document for the specific purpose of inducing the plaintiffs to enter into the sale of the property at the stated price with a waiver of redhibition.
4.
In the disclosure document, the defendants represented to the plaintiffs that the property had few, if any, defects. Specifically, the defendants stated that the property in question contained no defects with reference to the roof, the interior walls, the floors, the attic space, the porches, the stairs or stairways, the pool, the decks, the windows, the ceilings, the exterior walls, the foundation, the overhangs, the 17railings, the spa and the patios. The defendants indicated that, with reference to drainage and flooding issues, the only known incident occurred during Hurricane Katrina and the “May 8th flood” — indicating that the drainage issues and flooding were isolated to unique and unusual events. Further the defendants represented that no defects existed in the heating and cooling system.
5.
The aforementioned representations were made affirmatively and unambiguously. The defendants specifically checked the “no” box on each inquiry even though the defendants had the option of checking “yes” or “no knowledge”. The defendants cheeked the “no” box on the disclosure form and did not represent that they had “no knowledge” of the facts they disclosed even though they had the option of doing so.
11.
Defendants failed to advise the plaintiffs that they were not in a position to know one way or another whether the premises contained defects and thus intentionally misled the plaintiffs into believing that the defendants executed the disclosure form with knowledge of that which they stated.
12.
The acts of the defendants are in bad faith and constitute fraud in the inducement.
13.
The defects in the premises that have been discovered by the plaintiffs constitute redhibitory defects, and thus, plaintiffs are entitled to a reduction of the purchase price paid or, alternatively, all damages for all repairs to be made pursuant to La. C.C. art. 2520.
14.
Additionally, because of defendants’ bad faith and fraud, plaintiffs cannot be bound by the executed waiver of redhibition and said waiver is void.
[Emphasis in original].

After our de novo review of the Petition, we find Plaintiffs failed to state a cause of action in redhibition through fraudulent inducement. Plaintiffs signed .a redhibition waiver that excluded or limited the Trusts’ warranty against redhibition. In order for Plaintiffs to be successful in their claim against the Trusts, |sPlaintiffs would have to prove that the Trusts knew of the defects prior to the signing of the waiver and sale of the property. Otherwise, Plaintiffs are bound by the redhibition waiver and have no viable claims against the Trusts. Although they sufficiently pleaded there were redhibitory defects in the property, Plaintiffs failed to allege in their Petition that the Trusts had knowledge of the redhibitory defects in the property, which is fatal to a redhibition action. Therefore, the trial court was proper in sustaining the Trusts’ Exception of No Cause of Action. However, pursuant to La. C.C.P. art. 934, we are allowing Plaintiffs to cure the defect since the grounds of the Trusts’ objection can be removed through amendment of their Petition.

DECREE

For the foregoing reasons, we affirm as amended the judgment sustaining the Trusts’ Exception of No Cause of Action. Furthermore, it is ordered that Nancy Williams and Franco Valobra be allowed to amend their Petition with the trial court within thirty (30) days of the rendering of this opinion. Plaintiffs are assessed the costs of this appeal.

AFFIRMED AS AMENDED; REMANDED.