author: JAMES F. McKAY III, Chief Judge. LOVE, J., LOBRANO, J.,

text:
    John F. KELLY, III v. Angela Discon SMITH.
    No. 2013-CA-0280.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2014.
    Rehearing Denied March 19, 2014.

      William Patrick Klotz, Klotz & Early, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    Michael B. Depetrillo, Jones, Walker, LLP., New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Chief Judge.

|,In this case, involving the disposal of assets of a former limited liability company, the defendant, Angela Discon Smith, appeals the trial court’s judgment in favor of the plaintiff, John F. Kelly, III. Ms. Smith also raises the peremptory exception of no right of action for the first time in this Court. For the following reasons, we affirm the judgment of the trial court and deny the exception.

FACTS AND PROCEDURAL HISTORY

In August of 2002, Angela Discon Smith and John F. Kelly, III entered into a business relationship and formed two limited liability companies, 741 Lang Street, L.L.C. and Rent to Own Properties, L.L.C. The purpose of these companies was to purchase residential properties in the New Orleans metropolitan area and have interested persons enter into a lease purchase agreement for a rental fee.

At the time the companies were formed and during their existences, Ms. Smith was employed by Keller Williams as a licensed real estate agent. Mr. Kelly | ¡unvested $35,000.00 of his personal funds as seed money for the businesses. The parties agreed that all profits derived from the businesses were to be split equally between them, including, but not limited to, the commissions that Ms. Smith received from her employment with Keller Williams.

While Mr. Kelly and Ms. Smith were both members of Rent to Own Properties, the company acquired several pieces of property that were leased to tenants. The company also paid a $5,000.00 deposit for the purchase of a property located at 956-958 Robert E. Lee Boulevard in New Orleans, but Ms. Smith allegedly caused the company to default on the contract for the purchase of that property by failing to timely apply for an extension, which resulted in the loss of the deposit. Mr. Kelly also alleges that Ms. Smith never deposited any of her sales commissions from Keller Williams into the company’s bank account.

On February 21, 2003, the articles of organization of Rent to Own Properties were amended to allow Ms. Smith to surrender her interest and transfer her rights in the company to Mr. Kelly. This was done because Ms. Smith no longer wanted to be involved in the company. On May 20, 2003, Ms. Smith’s name was removed from the Rent to Own Properties bank account. However, Ms. Smith retained the right as agent to collect rental payments from lessees currently renting properties from Rent to Own Properties but relinquished any future involvement with that company’s business.

After Ms. Smith left Rent to Own Properties, Mr. Kelly alleges that she engaged in a number of improper actions. These included receiving rental 1.o,payments, which were to be deposited into the 741 Lang Street, L.L.C. bank account in order to satisfy mortgage notes, insurance and other expenses associated with the properties but failing to actually deposit those monies into said bank account or accounting to Mr. Kelly for those funds. Mr. Kelly further alleges that Ms. Smith misappropriated funds in the Rent to Own Properties bank account to satisfy mortgage notes on two shared properties and illegally cancelled those mortgages. Ms. Smith then allegedly sold the properties and retained all funds from the sales.

On February 24, 2005, Mr. Kelly filed a petition for damages against Ms. Smith alleging that Ms. Smith breached her fiduciary duty to him and to Rent to Own Properties and 741 Lang Street. Mr. Kelly also alleged that Ms. Smith is hable to him for misappropriation of funds, breach of fiduciary duty and breach of contract, all of which caused him financial loss. Ms. Smith answered the petition and later filed a reconventional demand against Mr. Kelly. Following trial on the merits, the trial court rendered judgment in favor of Mr. Kelly and against Ms. Smith. The trial court awarded Mr. Kelly the following sums: $7,298.50 for real estate commissions on the California Avenue, West Louisiana State Drive and Devon Road properties; $25,501.00 for proceeds from the sale of the California Avenue, West Louisiana State Drive and Devon Road properties; $11,114.00 for misappropriated funds from the Rent to Own Properties bank account; and $2,500.00 for 50% of the good faith deposit on 956-958 Robert E. Lee Blvd. The aforementioned awards included interest, from the date of judicial demand until 14paid, and court costs. Additionally, the trial court ordered Ms. Smith to reimburse Mr. Kelly 50% interest on all money collected to date on the $20,000.00 mortgage note that Ms. Smith maintains on the Devon Road property, with future monthly payments to be timely disbursed to Mr. Kelly. The trial court also dismissed Ms. Smith’s reconventional demand as abandoned. It is from this judgment that Ms. Smith now appeals.

DISCUSSION

On appeal, Ms. Smith raises the following assignments of error: 1) the trial court erred in declaring her reconventional demand abandoned; 2) the trial court erred in awarding Kelly 50% of certain real estate commissions for the sale of the California Avenue property, the West La. State Drive property and the Devon Road property because no evidence was introduced to support the commissions; 8) the trial court erred in awarding Kelly 50% of the net proceeds from sales of the three properties that are the subject of the second assignment of error; 4) the trial court erred in awarding Kelly, in his own individual capacity, funds of Rent to Own Properties, L.L.C. because he has no right of action to recover property on behalf of a limited liability company; 5) the trial court erred in failing to offset any purported misappropriation of funds with amounts owed for mortgage payments; and 6) the trial court erred by unduly restricting evidence regarding Kelly’s litigation history. Ms. Smith has also filed an exception of no right of action for the first time on appeal.

Lit is well settled that an appellate court may not disturb a trial court’s findings of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Clarkston v. La. Farm Bureau Cas. Ins. Co., 2007-0158, p. 24 (La. App. 4 Cir. 7/2/08), 989 So.2d 164, 182 (citing Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176). Courts have adopted a two-part test to determine whether a finding is manifestly erroneous or clearly wrong: 1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further demonstrate that the record establishes that the finding is clearly wrong (manifestly erroneous). Thus, a trial court judgment may be manifestly erroneous only if the record reveals the trial court judgment is not reasonable. Clement v. Griffin, 634 So.2d 412, 422 (La.App. 4 Cir.1994). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Abadie v. Morales, 391 So.2d 974, 976 (La.App. 4 Cir.1980) (citing Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)). When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

|fiIn her first assignment of error, Ms. Smith contends that the trial court erred in finding that she had abandoned her reconventional demand. However, at trial, Ms. Smith’s attorney stated: “We’re not pursuing a reconventional demand.” He explained this was because the reconven-tional demand “was more in nature of a setoff of the plaintiffs claim with regard to the amount claimed by the plaintiff.” When the trial court questioned plaintiffs counsel about whether the claim for recon-ventional demand was being abandoned, counsel affirmed that it was. Therefore, at the end of trial, finding that no evidence was presented regarding Ms. Smith’s re-conventional, the trial court deemed it abandoned. We find no error in this finding. If Ms. Smith had any objection to this abandonment of her claim, she should not have agreed to allow it to be abandoned or should have presented evidence in support of the claim.

In her second assignment of error, Ms. Smith contends that the trial court erred in awarding Mr. Kelly 50% of certain real estate commissions for the sales of the California Avenue property, the West La. State Drive' property and the Devon Road property because no evidence was introduced to support the commissions. Her contention is wrong. At trial of this matter, Ms. Smith claimed that she received no commission on the sale on the California Avenue property. However, in a 2012 deposition, she admitted to receiving a $7,000.00 commission on the sale of that property. This deposition was admitted into evidence with no objection from the defendant. Therefore, the trial court was faced with conflicting trial and deposition testimony. When a party does not object to the use of a deposition, and |7the court finds that the witness to be non-credible it is not an abuse of discretion for the trial court to discount the witness’s testimony and substantively use the deposition. See Serou v. Touro Infirmary, 2012-0089, pp. 36-37 (La.App. 4 Cir. 1/9/13), 105 So.3d 1068, 1094. Regarding Ms. Smith’s commission on the Devon Street property, the plaintiff introduced into evidence an exhibit which listed a $5,097.00 commission to Keller Williams for the sale of this property. Although Ms. Smith testified that she likely only received $3,000.00 of this amount because of broker fees, the trial court may have discounted her testimony because of the prior discrepancy between her trial and deposition testimony. In any event, Ms. Smith’s assignment of error that there was no evidence to support an award for commissions is without merit.

In her third assignment of error, Ms. Smith contends that the trial court erred in awarding Mr. Kelly one-half of the net proceeds from the sales of the California Avenue property, the West La. State Drive property and the Devon Road property because there was no evidence to support the amount of net proceeds awarded.

The trial court found that a $40,000.00 profit was realized on the sale of the California Avenue property. Per the closing statement on the California Avenue property, the property sold for $180,000.00 with a $139,485.57 balance on the mortgage, leaving approximately $40,000.00 in profit. Accordingly, there was evidence in the record to support the trial court’s award. Ms. Smith contends that she made certain concessions to the buyers; she paid $11,000.00 in closing costs, $5,580.00 and $5,645.00 in settlement charges. However, this was done without 18the consent of Mr. Kelly. Thereafter, Ms. Smith was left with approximately only $29,000.00 in profit. She further claims that she only netted $9,700.00 on the sale of the California Avenue property because she gave the buyers another $20,000.00 which is not reflected in any paperwork. However, there is nothing in the record to support Ms. Smith’s contentions besides her own testimony.

The trial court found that an $11,000.00 profit was realized on the sale of the West La. State Drive property. The closing documents indicated that the property was sold for $103,000.00 with a balance on the mortgage of $92,000.00. The buyer also paid the Kenner city property taxes. Although Ms. Smith contends that she paid the buyer’s closing costs and broke even on the sale, there is nothing besides her own testimony to support her contention.

The trial court found that a $2,000.00 profit was realized on the sale of the Devon Road property. In addition, the trial court found that certain payments were made on a $20,000.00 promissory note and deposited into Ms. Smith’s bank account; the trial court ordered an accounting of these payments be made to Mr. Kelly. Although Ms. Smith alleges that the property was foreclosed on, she never produced any documentation regarding the foreclosure, despite receiving a request for production of all sale documentation. As stated above, Ms. Smith offers nothing except her own testimony to refute the trial court’s findings.

As shown above, there is evidence in the record to support the trial court’s awarding Mr. Kelly one-half of the net proceeds from the sales of the California 19Avenue property, the West La. State Drive property and the Devon Road property. Accordingly, Ms. Smith’s third assignment of error is without merit.

In her fourth assignment of error, Ms. Smith contends that the trial court erred in awarding Mr. Kelly, in his individual capacity, funds of Rent to Own Properties because Mr. Kelly has no right of action to recover property on behalf of a limited liability company. In February of 2003, Ms. Smith surrendered her interest in Rent to Own Properties to Mr. Kelly. Therefore, Mr. Kelly became the sole member of the limited liability company. There are example of cases where an individual has either been allowed to bring or defend an action against a limited liability company in his individual capacity. However, it appears that Rent to Own Properties ceased doing business after this point and Mr. Kelly and Ms. Smith had separate and personal interests in the three shared properties. In any event, Rent to Own Properties’ license was revoked by the Louisiana Secretary of State in 2006. We find no error in the trial court’s awarding funds to Mr. Kelly, in his individual capacity. This issue will be discussed further when we address Ms. Smith’s exception of no right of action.

In her fifth assignment of error, Ms. Smith contends that the trial court erred in failing to offset any purported misappropriation of funds with amounts owed for mortgage payments. Ms. Smith contends that she used a portion of these funds to pay the mortgages on properties owned by Rent to Own Properties. However, Imthere is evidence to that she also used these funds to pay the mortgage on 741 Lang Street, which she fully owned. By her own testimony, Ms. Smith admitted that she had no right to write checks or withdraw money from the Rent to Own Properties account after February 21, 2003. Ms. Smith’s lack of right to Rent to Own Properties’ funds is also evidenced by the dissolution agreement from when she left the LLC. Accordingly, the trial court did not err in failing to offset the misappropriation.

In her sixth and final assignment of error, Ms. Smith contends that the trial court erred by unduly restricting evidence regarding Mr. Kelly’s prior and current litigation history. “With regard to admission of evidence at trial, a trial court is allowed great discretion, and determinations to admit or exclude evidence will not be reversed on appeal absent an abuse of that wide discretion.” Munch v. Backer, 2010-1544, p. 3 (La.App. 4 Cir. 3/23/11), 63 So.3d 181, 185. Ms. Smith argues that this evidence should have been admitted because it would show Mr. Kelly’s history of failing to pay his debts, that Mr. Kelly treated the funds from the LLC as his own, and Mr. Kelly’s lack of credibility. However, this case is about Ms. Smith’s failure to pay sale proceeds and commissions on the sales of three properties and her misappropriation of Rent to Own Properties’ funds.

Furthermore, Louisiana Code of Evidence Article 103(A) provides: “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... the substance of the evidence was made known to the court by counsel.” Thus, in order to preserve for review an |-n alleged error in ruling excluding evidence, counsel must make known to the court the substance of the excluded testimony. State v. Magee, 2011-0574, pp. 60-61 (La.9/28/12), 103 So.3d 285, 326. This can be effected by proffer, either in the form of a complete record of the excluded testimony or a statement describing what the party expects to establish by the excluded evidence. Id. Ms. Smith failed to proffer this evidence, and as such, she has waived her right to appeal the trial court’s exclusion of this evidence. Accordingly, the evidence regarding Mr. Kelly’s prior and current litigation history is irrelevant, and the trial court did not abuse its discretion in failing to admit the evidence.

In addition to appealing the trial court’s judgment, Ms. Smith has also filed a peremptory exception of no right of action in this Court. The exception of no right of action is peremptory and can be brought up at any time, including on appeal. Lambert v. Donald G. Lambert Constr. Co., 370 So.2d 1254 (La.1979). The peremptory exception of no right of action questions whether the party against whom it is asserted has an interest in judicially enforcing the right against the exceptor. Recovery Development Group, L.L.C. v. National Baptist Conv. Of America, Inc., 2010-1086, p. 11 (La.App. 4 Cir. 4/20/11), 68 So.3d 1127, 1132-1133 (citing Thomas v. State, 545 So.2d 632 (La.App. 4 Cir.1989)). In examining an exception of no right of action, a court should focus on whether the particular plaintiff has a right to bring the suit while assuming that the petition states a valid cause of action for the same person. J-W Power Co. v. State ex rel. Dept, of Revenue and Taxation, 2010-1598, pp. 7-8 (La.3/15/11), 59 So.3d 1234,12391 ^citing Reese v. State, Dept, of Public Safety & Corrections, 2003-1615, pp. 2-3 (La.2/20/04), 866 So.2d 244, 246). The exception of no right of action questions whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

In the instant case, Mr. Kelly alleges that Ms. Smith breached a fiduciary duty to him and Rent to Own Properties. See La. R.S. 12:1314(A)(1). Accordingly, Mr. Kelly has a right of action to bring this lawsuit. Furthermore, La. R.S. 12:1320(0 provides that a member of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company. By analogy, an argument can be made that the same should apply where a member, who is left as the sole member of an LLC, is bringing an action regarding the LLC against a former member of the LLC; it would make no difference if he brought the action on behalf of the LLC or in his individual capacity.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed and the defendant/appellant’s peremptory exception of no right of action is denied.

AFFIRMED; EXCEPTION DENIED.

LOVE, J., Dissents.

LOBRANO, J., Dissents With Reasons.

LOVE, J.,

Dissents.

|TI respectfully dissent for the reasons assigned by Judge Lobrano.

LOBRANO, J.,

Dissents with Reasons.

pi respectfully dissent from the majority opinion affirming the trial court judgment, and denying the exception of no right of action filed by Angela Discon Smith against John F. Kelly, III. I would vacate the trial court judgment in favor of Kelly, sustain the exception of no right of action filed by Smith against Kelly, and remand this matter to the trial court to allow Kelly to amend his petition and for further proceedings.

In her brief in support of the exception, Smith argues that Kelly has no right of action in his individual capacity to assert the claims of Rent to Own Properties, L.L.C. and 741 Lang Street, L.L.C. Smith argues that the claims asserted against her by Kelly involved losses allegedly sustained by Rent to Own Properties, L.L.C. and 741 Lang Street, L.L.C., and not by Kelly in his individual capacity. Those two limited liability companies are not named parties in this proceeding. The only named plaintiff is Kelly, in his individual capacity. Smith further argues that Kelly — even as the current sole member of Rent to Own Properties, L.L.C. or as a member of 741 Lang Street, L.L.C. — has no ownership interest in the property of these companies and no right to pursue recovery against Smith for the claims of these companies.

12KeIly opposed Smith’s exception of no right of action, arguing that he has a personal interest in the properties at issue, and that the funds previously held in the Rent to Own Properties, L.L.C.’s bank account were his personal funds. He further argues that he inherited the right of action to the claims he asserted against Smith when the limited liability companies were allegedly dissolved in 2006. As an alternative argument, Kelly argues that if this Court finds that he has no right of action against Smith, he should be allowed the opportunity to amend his petition.

Kelly also filed a supplemental brief in opposition to Smith’s exception, and attached printouts from the Louisiana Secretary of State’s website regarding the status of Rent to Own Properties, L.L.C. and of 741 Lang Street, L.L.C. These printouts are not in the record on appeal. Appellate briefs and attachments thereto are not part of the record on appeal; therefore, as a court of record, this Court has no authority to consider the items attached to Kelly’s brief. Miccol Enterprises, Inc. v. City of New Orleans, 12-0864, p. 7 (La.App. 4 Cir. 12/19/12), 106 So.3d 746, 750-751.

The record in this matter shows that during the existence of the business relationship between Kelly and Smith, five properties were purchased: 1) 4321 California Avenue in Kenner; 2) 377 West Louisiana State Drive in Kenner; 3) 330 Devon Road in LaPlace; 4) 741 Lang Street in New Orleans; and 5) 723 Carroll-ton Street in Metairie. The Carrollton Street property was purchased in the name of Rent to Own Properties, L.L.C., and the other four properties were purchased in Smith’s name. In subsequent documents entitled “Trust Agreement” executed by Smith in favor of 741 Lang Street, L.L.C. for three of these properties (California Avenue, West Louisiana State Drive and Devon Road), Kelly signed as a member of 741 Lang Street, L.L.C., but not in his individual capacity. Kelly admitted at trial that Rent to Own Properties, L.L.C. paid the $5,000.00 deposit, that was later lost, on the Robert E. Lee Boulevard property in New Orleans.

| ¡While the evidence is clear that Kelly and Smith agreed to be equal partners in both Rent to Own Properties, L.L.C. and 741 Lang Street, L.L.C., Kelly was not a party, in his individual capacity, to any of the transactions regarding the properties acquired or attempted to be acquired during the parties’ business relationship. Furthermore, the bank accounts for which Kelly alleges losses due to alleged transgressions of Smith were in the names of the two limited liability companies.

La. R.S. 12:1329, relative to the nature of a membership interest in a limited liability company, states:

A membership interest shall be an incorporeal movable. A member shall have no interest in limited liability company property.

Based on this statute and the evidence included in the record on appeal, my opinion is that Kelly has no right of action to assert claims in his individual capacity regarding losses allegedly sustained by Rent to Own Properties, L.L.C. and/or 741 Lang Street, L.L.C. See Van Meter v. Gutierrez, 04-0706 (La.App. 4 Cir. 2/16/05), 897 So.2d 781.

      . The articles of organization for these companies were filed with the Louisiana Secretary of State on August 22, 2002 and September 17, 2002, respectively.

      . In 528 Baronne Owners Assoc., Inc. v. Kelly, 2005-0318 (La.App. 4 Cir. 9/27/06), 941 So.2d 657, the sole member of a limited liability company (LLC) was found personally liable in an action involving the LLC. Ironically, this case also involved the same Mr. Kelly we have in the instant case.


source: Caselaw Access Project

author: ROSEMARY LEDET, Judge.

license: Public Domain

text:
    Rev. Norwood THOMPSON, Jr. and his Wife Wynnette Thompson v. BANK ONE OF LOUISIANA, NA; First Zion Baptist Church of New Orleans, et al.
    No. 2013-CA-1058.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2014.
    Rehearing Denied March 17, 2014.

      Harry- E. Cantrell, Jr., Jason E. Cantrell, The Cantrell Law Firm, New Orleans, LA, for Plaintiff/Appellee.
    Sidney W. Degan, III, Jeffrey C. Brennan, Travis L. Bourgeois, Degan Blanchard & Nash, New Orleans, LA, for Defendant/Appellant.
   ROSEMARY LEDET, Judge.

|, This is a defamation case. From a judgment in favor of the plaintiff,' Reverend Norwood Thompson, Jr., the defendants, First Zion Baptist Church of New Orleans (the “Church”), Anthony Bridges, Dianne Rose, Frank Ben, Hilda Butler, Joyeelyn Patterson, Lillian Decquir, Thea-da Bridges, and Harold Rose (collectively the “Church Defendants”) appeal. For the reasons that follow, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

This defamation claim arose from the following pertinent facts. The Church had two boards: the Deacon Board, which was responsible for its spiritual matters; and the Trustee Board, which was responsible for its financial matters. At the pertinent time, all of the individual Church Defendants, with the exceptions of Lillian Dec-quir and Theada Bridges, were members of at least one of these boards: Anthony Bridges was the Trustee Board’s president; Frank Ben was the Trustee Board’s treasurer; Dianne Rose was the Trustee Board’s secretary; Joyeelyn Patterson and Hilda Butler were Trustee Board members; and Harold Rose was the | ?Deacon Board’s chairman. Lillian Decquir was the Church’s clerk. Lastly, Theada Bridges was Anthony Bridges’ wife and Rev. Thompson’s sister.

In late August or early September 1999, Frank Ben, Harold Rose, Lillian Decquir, and two other Church members went to the Church’s Bank, Bank One of Louisiana. These members desired to obtain information on the Church’s finances, because the Church was planning on building a new sanctuary. They were advised by Bank One that the Church had a $50,000 certificate of deposit (“CD”). Frank Ben, Harold Rose, and Lillian Decquir went back to the Church and informed Anthony Bridges about the $50,000 CD. At this time, there were approximately five or six signatories on the Church’s checking account at Bank One, including Anthony Bridges, Lillian Decquir, Harold Rose, and Rev. Thompson. Anthony Bridges and the other Trustee Board members then returned to Bank One and had Rev. and Mrs. Thompson removed as signatories on the account. They had the signatories changed to include only Anthony Bridges, Lillian Decquir, and Frank Ben.

In mid-September 1999, Anthony Bridges held a meeting with the Trustee and Deacon Boards. Rev. and Mrs. Thompson were not invited to the meeting, even though Mrs. Thompson was a Trustee Board member. However, the Thomp-sons learned of the meeting from Lillian Decquir and decided to attend as they both held positions regarding the Church’s finances. During the meeting, Rev. Thompson was unable to identify the source of the CD and was asked to step down as pastor.

|sRev. Thompson continuously informed the Church Defendants that he did not steal any money from the Church and that the CD did not belong to the Church. Thereafter, Rev. Thompson realized, and told the Church Defendants, that the tax identification number on the CD was not the Church’s tax identification number.

On October 22, 1999, Rev. Thompson and Mrs. Thompson filed a petition for damages and injunctive relief against the Church Defendants and the Church’s bank, Bank One. In their petition, the Thompsons made the following pertinent allegations:

• In 1996, the Board of Trustees [of First Zion Baptist Church of New Orleans], made Plaintiff, Pastor, REV. NORWOOD THOMPSON, JR. responsible for maintenance of the church’s financial books, including checking accounts.
• On or about September 15, 1999, Defendant, Anthony Bridges, acting as Chairman of the Trustee Board, called a special meeting of the First Zion Baptist Church of New Orleans, Trustee Board.
• At the September 15, 1999 meeting Plaintiffs were falsely accused by the Defendants, Anthony Bridges, Joyce-lyn Patterson, Lillian Decquir, Tommie Varnado, Leon Hillary, Frank Ben, Terry Beaver[,] Avis McSwain, Jacquelyn Jones, Hilda Butler of having improperly used funds belonging to First Zion Baptist Church of New Orleans, for their own purposes.
• On September 27, 1999, Plaintiff, Rev. Norwood Thompson, Jr., [was] accused by Defendants of embezzlement of church funds. Specifically Rev. Thompson was accused of having purchased a 1992 Certificate of Deposit with Bank One of Louisiana valued in an amount equal to $51,000 with church funds.
• In the September 27th meeting the Plaintiff, as Pastor, was treated with such contempt as being called a thief and liar by the Defendants before members of their church.

LBased on the above allegations, Rev. Thompson sought damages for defamation and injunctive relief. He alleged that he was removed as pastor of the Church pursuant to an illegal election by an improperly constituted Board of Directors.

Despite injunctions and restraining orders issued by the trial court, Rev. Thompson was denied access and locked out of the Church on several occasions. At an injunction hearing on October 29,1999, the trial court judge informed the Church Defendants that Bank One had in fact made a mistake with regard to the ownership of the CD. Despite this information, the court had to order that Rev. Thompson be restored to his pastoral duties on several occasions. Further, the Church Defendants presented Rev. Thompson with a resignation letter in December 1999, which he refused to sign.

On September 6, 2000, the Church Defendants filed a Petition for Damages for Defamation and Breach of Fiduciary Duty against Rev. Thompson and Mrs. Thompson (the “2000 Lawsuit”). In their petition, the Church Defendants averred:

• That plaintiffs [the Church Defendants], in their capacities as members of the Board of Deacons and/or Board of Trustees, began planning for the construction of a new Church building, which required an assessment of the current financial position of First Zion.
• That during this assessment of the financial position of First Zion, some questions arose regarding the finances and the defendants’ role therein.
• That defendants refused to cooperate with an investigation into these questions, and attempted to thwart the investigation through threats and intimidation.
• Nonetheless, the Boards’ investigation revealed that Reverend Thompson had misappropriated Church funds and used them for his own personal benefit, to the detriment of First Zion.
• That the defendants’ actions constitute a breach of fiduciary duty to First Zion and its members.
|r* That the defendants’ actions also constitute fraud, as he misrepresented and/or suppressed the truth made with the intention to cause loss and/or inconvenience to the Church. and its members.
• Then, in April of 2000, defendant Rev. Thompson left First Zion to open another church.
• When he did so, an audit of church property was performed which found that several items were missing, including two computers, a communion set, a paper shredder, software books, a microphone system, and other computer hardware.
• That upon information and belief, defendants took these items from First Zion.

During this same time period, a television news special called “Showeth Me the Money” was aired on Fox 8. In the news special, one of the Church’s Deacons, John Tedford, accused Rev. Thompson of stealing the Church’s money. This news special aired several times over a two year period.

The early procedural history of Rev. Thompson’s defamation lawsuit against the Church Defendants is outlined in Thompson v. Bank One of Louisiana, 05-1101, pp. 1-3 (La.App. 4 Cir. 1/11/06), 925 So.2d 555, 556-57, as follows:

• 11/05/99 The district court issues a preliminary injunction, amended on 11/12/99, which orders that: (1) Rev. Thompson be reinstated as pastor pending the election of a new Board to be held December 17, 1999; (2) Prior to the date set for the new election, the parties are to agree upon a roster of current church members eligible to participate in the election of the new Board; and (3) During the interim 45 days, any checks drawn on First Zion’s Bank One account must contain the signatures of two named persons in addition to that of Rev. Thompson to be valid.
• 1/28/00 The district court issues a “permanent” injunction “to’ protect [Rev. Thompson’s] right to access and use of First Zion Baptist Church of New Orleans as the presiding pastor, pending a full hearing on the merits before this [the district]Court.”
• 2/03/00 First Zion obtains an order appealing the permanent injunction to this [the Fourth Circuit] Court.
|r* 10/03/01 This [the Fourth Circuit] Court renders an unpublished opinion, which vacates the district Court’s injunction as being vague and pretermits discussion of all other assignments of error, including the alleged absence of subject matter jurisdiction and the allegation that the permanent injunction was invalid because it was issued without the required hearing. Rev. Nor-wood Thompson v. Bank One, et al, 2000-1085 (La.App. 4 Cir. 10/3/01), 798 So.2d 338 (unpublished).
• 3/07/02 Rev. Thompson’s ex parte motion to enter judgment in accordance with the Nov. 1999 preliminary injunction, which motion had been granted by the district court, is vacated on writ application to this Court because of the ex parte nature of the motion.
• 4/02/02 First Zion files an exception of lack of subject matter jurisdiction.
• 5/14/02 Rev. Thompson files a second ex parte motion to enforce the Nov. 1999 preliminary injunction.
• 8/15/02 The district court denies First Zion’s exception of lack of subject matter jurisdiction.
• 8/05/03 Rev. Thompson files a motion to set a hearing on the preliminary injunction granted in Nov. 1999, which motion the district court denies as moot.
• 12/09/03 This Court [the Fourth Circuit] grants Rev. Thompson’s writ application, reverses the district court’s denial of the motion and orders that court to conduct a hearing to determine what actions First Zion and Bank One are to refrain from and whether any actions already taken by them were in violation of prior trial court rulings.
• 2/22/05 The original district court judge recuses himself before the hearing (scheduled for 2/23/05) takes place; Rev. Thompson moves to reset the hearing.
• 3/16/05 The newly assigned district court judge orders a hearing.
• 5/21/05 A hearing on the merits of the Nov. 1999 preliminary injunction is held in the district court.
• 7/11/05 The district court [after first noting that “the passage of time has created inequities for all concerned”] renders a written judgment with reasons, ordering that: (1) Rev. Thompson be reinstated to his position as pastor of First Zion; (2) Rev. Thompson be given keys to the church and the church office; (3) Rev. Thompson’s personal items be returned to him; (4) Rev. Thompson’s salary be reinstated; and (5) Rev. Thompson has a right to “an election” pursuant to a church membership list approved by the court.
17* 7/13/05 First Zion files the instant writ application seeking reversal of the district court’s 7/11/05 judgment.

In January 2006, this court held that the court-ordered permanent reinstatement of Rev. Thompson as pastor of First Zion violated the constitutional principle of separation of church and state. Given this constitutional prohibition, we held that “specific performance, i.e., the reinstatement of Rev. Thompson as pastor of First Zion, is a remedy unavailable to plaintiffs under the facts of this case.” Thompson, 05-1101 at p. 3, 925 So.2d at 556-57. We further held that “should the plaintiffs ultimately prove at trial of this matter that Rev. Thompson was wrongfully removed from his position and/or was defamed through the fault of First Zion, the only redress to which the plaintiffs will be entitled is an award of damages, assuming such are proven.” Id.

In March 2007, the trial court granted Bank One’s motion for partial summary judgment dismissing the defamation claim against it. In 2010, Bank One filed another motion for summary judgment seeking dismissal of the remaining claims. Although the trial court in April 2010 granted that motion, this court reversed and found that “a genuine issue of material fact exists as to whether a sufficient nexus exists between Reverend Thompson and Bank One such that the defendant owed a duty of care to him.” Thompson v. Bank One of Louisiana, NA, 10-1489, p. 4 (La.App. 4 Cir. 3/23/11), 69 So.3d 490, 492.

On May 14 and 15, 2012, a bench trial was held. At trial, the plaintiffs called the following four witnesses: (i) Rev. Thompson; (ii) Mrs. Thompson; (iii) Shael |SN. Wolfson, Ph.D; and (iv) Dr. Robert Quin-tal. Although the defendants called no live witnesses, the deposition testimony of one of the Church Defendants, Anthony Bridges, was introduced. On November 19, 2012, the trial court rendered a judgment against both Bank One and the Church Defendants. The trial court found Bank One liable for breach of their fiduciary duty, and it found the Church Defendants liable for defamation. The trial court awarded the plaintiffs $312,640 in back pay, $120,246 in loss of pastor annual payments, and $79,795 in loss of fringe benefits, plus court costs and legal interest. On November 26, 2012, the trial court amended the judgment to provide that the damage awards were made solely in favor of Rev. Thompson and to deny any recovery to Mrs. Thompson.

On February 6, 2013, the trial court rendered judgment granting the Motion to Unseal the Record filed by the Thomp-sons. The trial court also rendered a judgment on the Motions for New Trial and Amended Judgment filed by all the parties. The trial court rendered judgment in favor of Rev. Thompson and against all the defendants awarding the following special damages: $196,228.00 for back pay, $120,246.00 for pastoral annual payment loss, $79,795.00 for fringe benefit loss, plus cost and interest from the date of judicial demand. The trial court allocated fault as follows: 30% to Bank One, and 70% to the Church Defendants. The trial court additionally awarded Rev. Thompson general damages of $150,000, plus cost and interest from the date of judicial demand, against only the Church ^Defendants. The trial court also dismissed all of Mrs. Thompsons claims against the defendants. This appeal by the Church Defendants followed.

STANDARD OF REVIEW

The applicable standards of review in this case are as follows. To the extent the issues presented involve the trial court’s factual findings, the manifest error standard of review applies. The Louisiana Supreme Court recently summarized the manifest error standard as follows:

It is well-settled in our jurisprudence that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Ardoin v. Firestone Polymers, L.L.C., 10-0245 at p. 6 (La.1/19/11), 56 So.3d 215, 219. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. However, where documents or objective evidence so contradict the witness’ story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’ story, the court of appeal may find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination. Id. at 882; Rosell v. ESCO, 549 So.2d 840 (La.1989).

Zito v. Advanced Emergency Medical Services, Inc., 11-2882, p. 4-5 (La.5/8/12), 89 So.3d 372, 375.

To the extent the issues presented involve the trial court’s damage awards, the following standard applies:

The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or so low in proportion to the injury that it “shocks the conscience.” Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir.1991).

Sommer v. State, Dep’t of Transp. & Dev., 97-1929, p. 17 (La.App. 4 Cir. 3/29/00), 758 So.2d 923, 934-35.

|inDISCUSSION

On appeal, the Church Defendants assert the following assignments of error:

• Whether the trial court erred in finding that the plaintiff provided sufficient evidence to support a claim of defamation per se, and applying presumptions of falsity, malice, and injury.
• Whether the trial court erred in finding that the plaintiff met his burden of proof on the elements required to establish a defamation claim.
• Whether the trial court erred in finding that the lawsuit filed by the church constituted defamation.
• Whether the trial court erred in finding that the Fox-8 broadcast constituted defamation.
• Whether the trial court abused its discretion in admitting the Fox-8 broadcast when it was irrelevant and overly prejudicial.
• Whether the trial court’s decision on the merits is based on a mistake of fact.

In essence, the Church Defendants appeal the trial court’s finding of both liability and damages as to Rev. Thompson’s defamation claim. In this appeal, we address liability and damages separately.

I. LIABILITY FOR DEFAMATION

The Louisiana Supreme Court has described the tort of defamation as the invasion of a person’s interest in his or her reputation and good name. Kennedy v. Sheriff of East Baton Rouge, 05-1418, p. 4 (La.7/10/06), 935 So.2d 669, 674 (citing Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139). Four elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another, (2) an unprivileged publication to a third party, (3) fault (negligence or greater) on the part of the publisher, and (4) resulting injury. Id. The fault requirement is generally considered to be malice, actual or implied. Id. By definition, a statement is defamatory if it tends to harm a person’s ^reputation, lowers the person in the estimation of the community, deters others from associating with the person, or otherwise exposes the person to contempt or ridicule. Id.

(a) Defamation per se

In Louisiana, defamatory words have traditionally been divided into two categories. First, words that are defamatory per se are those which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances. When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Injury may also be presumed. The second type of defamatory words are words that are susceptible of a defamatory meaning. In that case, a plaintiff must prove, in addition to a defamatory meaning and publication, falsity, malice (or fault) and injury. Kennedy, 05-1418 at p. 5, 985 So.2d at 674-75.

We find that the trial court was correct in finding the Church Defendants’ statements were defamatory per se. The Church Defendants accused Rev. Thompson of “embezzlement of Church funds,” and of being a “thief’ and a “liar” in front of other members of the Church. Further, the Church Defendants filed a lawsuit against Rev. Thompson, after they had been informed by the trial court judge that Rev. Thompson did not take the $50,000 CD in the Church’s name. The lawsuit alleged that Rev. Thompson “misappropriated Church funds and used them for his own personal benefit.” Further, the lawsuit stated that “the defendant’s [Rev. Thompson] actions constituted fraud as he misrepresented and/or suppressed the truth made with the intention to cause loss/ and or inconvenience to the Church and its members.” Lastly, the lawsuit stated that “several items were missing, 112including two computers, a communion set, a paper shredder, software books, a microphone system, and other computer hardware” and that “defendants took these items from First Zion [the Church].” These accusations are defamatory per se because they accused Rev. Thompson of criminal conduct and because, by their very nature, they tended to injure Rev. Thompson’s professional reputation as a pastor. Thus, Rev. Thompson did not need to prove defamatory words, malice, or falsity. Melancon v. Hyatt Corp., 589 So.2d 1186, 1189 (La.App. 4th Cir.1991) (holding that “because plaintiff Melancon was accused of stealing, he did not need to prove defamatory words, malice or falsity”).

The Church Defendants, however, contend that the allegations in their lawsuit do not constitute defamation per se. In support, they cite Kirksey v. New Orleans Jazz and Heritage Found., Inc., 12-1351, p. 8 (La.App. 4 Cir. 2/27/13), 116 So.3d 664, 670. We find this case distinguishable from Kirksey.

In Kirksey, the plaintiff, Kirksey, filed suit against the New Orleans Jazz and Heritage Foundation (the “Foundation”) for defamation. 12-1351 at p. 2, 116 So.3d at 667. The suit for defamation was based on an original suit filed by the Foundation against Kirksey for funds that the Foundation claimed were owed to it by Kirksey. 12-1351 at p. 10, 116 So.3d at 671. The Foundation’s petition contained allegations of “misappropriating, concealing, converting and/or conspiring to misappropriate certain rebates due to the plaintiff from ticket sales.” 12-1351 at p. 5, 116 So.3d at 668. The court held that Kirksey’s closely held corporation did owe these funds to the plaintiff and that it breached its contract, but that Kirksey was not personally liable. 12-1351 at p. 1, 116 So.3d at 666. Kirksey filed suit against the Foundation, claiming defamation based on the allegations in the plaintiffs original petition. 12-1351 at p. 2, 116 So.3d at 667. This court stated 11sthat “[t]he words contained in the Foundation’s petition, which Kirksey complains are defamatory, are words such as misappropriation, conversion, and civil conspiracy, all of which are words used commonly in the area of civil tort litigation.” 12-1351 at p. 8, 116 So.3d at 670. Thus, this court did not find that “these words, used in this context, are defamatory per se.” Id.

In this case, unlike Kirksey, the Church Defendants’ lawsuit contained allegations of criminal conduct against Rev. Thompson, not merely personal liability for one’s business pursuant to a business contract. Also unlike Kirksey, the Church Defendants’ lawsuit not only accused Rev. Thompson of misappropriating money, but also of committing fraud and stealing Church property. These allegations thus go beyond common civil tort litigation allegations; these allegations are criminal allegations that, by their very nature, harm Rev. Thompson’s reputation as a pastor. This case is also distinguishable from Kirksey in that here, there was never any truth found to the Church Defendants’ allegations. In fact, the Church Defendants abandoned their lawsuit.

Most importantly, the Church Defendants filed their lawsuit against Rev. Thompson after they were told by the trial court judge that Rev. Thompson had not misappropriated Church funds (the $50,000 CD) and that Bank One had made an error. Under these circumstances, the Church Defendants’ accusations in their lawsuit against Rev. Thompson constitute defamation per se.

(b) Publication of defamatory statements

The primary issue in this case is whether Rev. Thompson proved the second element of defamation — publication. Proof that a defendant made an unprivileged publication to a third party is a crucial element of a defamation claim. Brunet v. Fullmer, 00-0644, p. 4 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1242. ^^Publication means the communication of non-privileged defamatory words to even one single person besides the party defamed. Martin v. Lincoln General Hosp., 588 So.2d 1329, 1333 (La.App. 2d Cir.1991) (citing Toomer v. Breaux, 146 So.2d 723, 726 (La.App. 3d Cir.1962)). A defendant who utters a defamatory statement is responsible for all republication that is the natural and probable consequence of the author’s act. Martin, 588 So.2d at 1333 (citing Wattigny v. Lambert, 408 So.2d 1126 (La.App. 3d Cir.1981) and Giordano v. Tullier, 139 So.2d 15 (La.App. 4th Cir.1962)). Publication can be established by either direct or circumstantial evidence. Melancon, 589 So.2d at 1189.

In this case, the Church Defendants contend that there was no evidence of publication. They contend that neither of the two events on which the trial court relied upon to find publication provide sufficient evidence. Those two events are as follows: (1) the Church Defendants’ January 2000 Lawsuit, and (2) the Fox 8 News Broadcast. We address the 2000 Lawsuit and the Fox 8 News Broadcast separately.

(1) The Church Defendants’ January 2000 Lawsuit

The Church Defendants contend that the trial court’s rebanee on the 2000 Lawsuit as publication of the defamation was misplaced because it was a privileged communication. In support, they cite La. R.S. 14:49, which provides:

A qualified privilege exists and actual malice must be proved, regardless of whether the publication is true or false, in the following situations:
(4) Where the publication or expression is made by an attorney or party in a judicial proceeding.

The record does not support a finding that this privilege applies. In order for the privilege to apply, an otherwise defamatory statement must be “made in good lisfaith on any subject matter in which the person communicating has an interest or in reference to which he has a duty, to a person having a corresponding interest or duty.” Toomer v. Breaux, 146 So.2d 723, 725 (La.App. 3d Cir.1962). In this context, “good faith” means having reasonable grounds for believing that the statement is true. Ward v. Sears, Roebuck & Co., 339 So.2d 1255, 1261 (La.App. 1st Cir.1976).

The trial court noted that “even after it was shown that Bank One’s error had caused the $50,000 CD to be credited to First Zion Baptist Church of New Orleans, defendants continued their efforts to oust Rev. Thompson from his position as pastor.” In fact, at an injunction hearing on October 29, 1999, the previous trial court judge informed the Church Defendants that Bank One had made a mistake with regard to the ownership of the CD and that the Church did not have a $50,000 CD in its name. Despite this information, the Church Defendants filed the Petition for Damages against Rev. Thompson and his wife on September 6, 2000. Further, the 2000 Lawsuit was abandoned, as no pleadings were filed into the record since January 7, 2004.

The Church Defendants contend on appeal that the trial court’s decision was based on a mistake of fact and that their lawsuit and the Fox 8 News Broadcast had nothing to do with the $50,000 CD, but rather with questions about monies expended from the operating account. However, the trial court found that the Church Defendants “presented no evidence to show any discrepancies, or that money was missing or misappropriated.” While the 2000 Lawsuit did not [ ^specifically refer to the $50,000 CD as the funds that Rev. Thompson allegedly misappropriated, the trial court weighed the evidence and found that the Church Defendants filed the 2000 Lawsuit in an attempt to oust Rev. Thompson and to make it appear that he stole the $50,000 CD. Thus, the trial court found that the Church Defendants, in making the allegations in the 2000 Lawsuit, did not act in good faith and that the conditional privilege codified in La. R.S. 14:49 was inapplicable. As noted above, this court will not disturb the trial court’s factual findings in the absence of manifest error. We find no manifest error in the trial court’s factual findings.

(2) Uncalled Witness Rule

At trial, the Church Defendants presented the deposition testimony of one of the Church Defendants, Anthony Bridges. However, the other seven individual Church Defendants failed to testify. In its reasons for judgment, the trial court cited the uncalled witness rule, stating “the court finds that the failure of the individual defendants to testify at trial creates a presumption that their testimony would have been adverse to their position.” We agree.

The Louisiana Supreme Court reaffirmed the viability of the uncalled witness rule in Driscoll v. Stucker, 04-589, pp. 18-19 (La.1/19/05), 893 So.2d 32, 47, stating:

An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebutta-ble and is tempered by the fact that a party need only put on enough evidence to prove the case. Safety Ass’n of Timbermen Self Insurers Fund v. Malone Lumber, Inc., 34,646 (La.App. 2 Cir. 6/20/01), 793 So.2d 218, writ denied, 2001-2557 (La.12/07/01), 803 So.2d 973. Explaining that adverse presumption, the Fourth Circuit recently noted “ ‘[w]hen a defendant in a civil case can by his own testimony throw light upon matters at issue, necessary to his defense and particularly within his own knowledge, and fails to go upon the witness stand, the presumption is raised and will be given effect, that the facts, as he would have them do not exist.’ ” Taylor v. Entergy Corp., 2001-0805 (La.App. 4 Cir. 4/17/02), 816 So.2d 933 (quoting Davis v. Myers, 427 So.2d 648, 649 (La.App. 5 Cir.1983)). This adverse presumption is referred to as the “uncalled witness” rule and applies “when ‘a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence’ and fails to call such -witness.” Id. (quoting 19 FRANK L. MARAIST, LOUISIANA CIVIL LAW TREATISE: EVIDENCE AND PROOF, § 4.3 (1999)).

As noted previously, because Rev. Thompson proved defamation per se, the elements of falsity and malice are presumed, but may be rebutted by the defendant. Costello v. Hardy, 03-1146, p. 14 (La.1/21/04), 864 So.2d 129, 140. As noted, we find no error in the trial court’s reliance on the uncalled witness rule to find that the Church Defendants failed to rebut this presumption of malice.

(3) The Fox 8 News Broadcast

Because we find that each of the Church Defendants is liable for publishing defamatory words against Rev. Thompson through the filing of the 2000 Lawsuit 118and the uncalled witness rule, it is unnecessary to address whether the Fox 8 News Broadcast meets the publication requirement for defamation.

(c) Injury

A plaintiff claiming defamation must present competent evidence of the injuries suffered. Costello v. Hardy, 03-1146, p. 14 (La.1/21/04), 864 So.2d 129,141. A plaintiff must also demonstrate that the defamatory statements were a substantial factor in causing the harm. Id.

The trial court found that Rev. Thompson was unable to pursue his vocation as a pastor of an established church. Further, Rev. Thompson lost his health insurance and his pension, which were benefits that the Church provided to him. The trial court also stated that Rev. Thompson was in poor health and unable to find other work. We find no error in the trial court’s finding that Rev. Thompson has provided sufficient evidence of the injuries he sustained as a result of the defamation.

Accordingly, we find no error in the trial court’s finding that the Church Defendants are liable for defaming Rev. Thompson.

II. DAMAGE AWARDS FOR DEFAMATION

In the alternative, the Church Defendants contend that the trial court abused its discretion in calculating Rev. Thompson’s damage awards. Further, Rev. Thompson contends that it was manifest error for the trial court to fail to award | inMrs. Thompson damages for loss of consortium. We address each of these damage awards arguments separately.

(a) Special and General Damages

As noted at the outset, an award of damages in a defamation case is left to the great discretion of the trier of fact and should not be disturbed absent a showing of manifest error. Sommer, 97-1929 at p. 17, 758 So.2d at 934-35. The reviewing court must find that the trier of fact abused its discretion in awarding damages. “[T]he award must be so high or so low in proportion to the injury that it ‘shocks the conscience.’” Id. Further, the reviewing court must determine not whether the trier of fact is right or wrong, but whether the trier of fact’s conclusion is a reasonable one. Zito, 11-2382 at p. 4, 89 So.3d at 375. “If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id.

Damages for defamation include both special damages and nonpecuniary or general damages. Connor v. Scroggs, 35,-521, p. 14 (La.App. 2 Cir. 6/12/02), 821 So.2d 542, 552. This court has held that general damages for defamation can include injury to reputation, personal humiliation, embarrassment, mental anguish, and suffering. Sommer, 97-1929 at p. 47, 758 So.2d at 948-49.

The trial court awarded Rev. Thompson $196,228.00 for back pay, $120,246.00 for pastoral annual payment loss, $79,795.00 for fringe benefit loss, DnPlus cost and interest from the date of judicial demand. The trial court additionally awarded Rev. Thompson general damages of $150,000, plus cost and interest from the date of judicial demand, against only the Church Defendants.

The trial court’s calculations were derived from Rev. Thompson’s expert economist, Shael N. Wolfson, Ph.D. Dr. Wolfson calculated the back pay, pastoral annual payment loss, and fringe benefits from May 5, 2000 until the date of trial, May 14, 2012. Dr. Wolfson determined that the annual base for determining back pay was $26,000 per year, which was based on the approximately $500 per week that Rev. Thompson received from the Church. Further, Dr. Wolfson calculated the pastoral annual payment loss based on the $10,000 annual payment Rev. Thompson received from the Church. Lastly, Dr. Wolfson calculated the fringe benefits based on retirement rates of $264.00 per month and insurance rates of $289 per month.

The Church Defendants contend that in calculating the damage awards, the trial court failed to take into account the testimony and letter of Rev. Thompsons’s physician, Dr. Robert Quintal. In a letter dated August 15, 2006, Dr. Quintal opined that because of Rev. Thompson’s heart condition, he could no longer work as of August 2006. Thus, the Church Defendants contend that the damage awards should be amended to exclude all damages after August 2006. However, Dr. | ⅞1 Quintal’s 2006 letter was not the only evidence admitted at trial regarding Rev. Thompson’s ability to work.

At trial, Dr. Quintal was questioned on direct regarding his opinion on whether Rev. Thompson could return to his pastoral duties despite his health condition. While Dr. Quintal testified that “[Rev. Thompson] is very involved in the community; and those are very stressful situations which I do not believe that he should be involved in,” he also testified that he “believe[d] that if he limits his activities to being a pastor, he could [return to work].” Dr. Quintal was also questioned on cross-examination regarding his opinion of whether Rev. Thompson could return to work today. Dr. Quintal responded that he could not make a judgment call regarding Rev. Thompson’s ability to work because he never heard him preach.

The record also indicates that Rev. Thompson was involved in several community organizations since 2006. Considering Rev. Thompson’s active and continuous participation in these community organizations, it was reasonable for the trial court to find that he was also capable of his former pastoral duties at the Church.

Given Dr. Quintal’s trial testimony coupled with the evidence regarding Rev. Thompson’s active and continuous participation in community organizations, we find the trial court’s decision to award Rev. Thompson damages from 2000 to |⅞⅞2012 was reasonable. Thus, we find that the trial court did not abuse its discretion in calculating Rev. Thompson’s special damages.

Further, we find that the trial court did not abuse its discretion in its award of general damages. Rev. Thompson proved injury to his reputation, personal humiliation, embarrassment, mental anguish, and suffering. Thus, we find that an award of $150,000 for general damages for these injuries was not an abuse of the court’s discretion.

(b) Loss of Consortium, Damages

Rev. and Mrs. Thompson contend in their appellee brief that it was manifest error for the trial court to fail to award Mrs. Thompson damages for loss of consortium. The appellees, however, failed to file their own appeal or to answer the Church Defendants’ appeal. See La. C.C.P. art. 2133. Thus, the appellees’ claim for loss of consortium damages is not properly before this court.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

DYSART, J., Dissents.

_JjI respectfully dissent from the majority’s conclusion affirming the trial court’s finding of defamation per se. First, I note that the trial court’s judgment is based on events which occurred after the petition was filed and which, therefore, cannot support the judgment. More specifically, the Petition for Damages on Defamation and/or Negligence and For Injunctive Relief (“Petition”) was filed on October 22, 1999. The Petition alleged that on September 15, 1999, a special meeting of the church’s Trustee Board was called (at which some members of the church who were not on the Board of Trustees attended), at which time plaintiffs were “falsely accused ... of having improperly used funds belonging to [the church] for their own purposes.” The Petition further alleged that certain Trustees had Rev. Thompson removed as a signatory on the church’s bank accounts. It then alleged that at another meeting on September 27, 1999, Rev. Thompson was accused “of embezzlement of church fund” in that he “purchased a 1992 Certificate of Deposit with Bank One ... valued in an amount equal to $51,000 with church funds.”

1 gIt is these events which form the basis of the lawsuit. Plaintiffs alleged that, because of these events, Rev. Thompson “was treated with such contempt as being called a thief and liar,” and his character was undermined.

The trial court’s judgment, as reflected in its Reasons for Judgment, is largely based on a finding that the defendants accused Rev. Thompson of a crime. The trial court cites Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2 Cir.1975) for the principle that “[w]hen words impute a crime to another, they are defamatory per se.... ” However, the trial court’s Reasons for Judgment do not specifically articulate what “words” were stated by the defendants that “imputed” a crime to Rev. Thompson and upon which the court based its finding of defamation per se. A review of the Reasons for Judgment suggests that the trial court’s finding of defamation was based on two facts: (1) “[e]ven after it was shown that Bank One’s error had caused the $50,000 CD to be credited to [the church], defendants continued their efforts to oust Rev. Thompson from his position as Pastor” and (2) “[a]s previously noted, one member of the Deacon and Trustee Boards even resorted to making accusations of theft on a local TV news show.”

The former finding, that the defendants continued their efforts to oust Rev. Thompson, clearly does not imply any accusations of criminal activity. The latter finding, that Rev. Thompson was accused of theft on a TV news show, relates to broadcasts that occurred after plaintiffs filed suit. To the extent that the trial court’s judgment is based on the broadcasts, the judgment cannot stand. Under pLa. C.C. Pr. art. 891A, a petition must identify the parties and contain “a short, clear, concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation.” Here, the original petition was limited to those facts arising prior to its filing and thus, the only issues before the trial court are those addressed by the Petition. As no amending petition was filed, the events arising after the Petition was filed cannot form the basis of the suit.

Setting aside these preliminary matters, I do not find that the record substantiates a finding of defamation per se. To prove defamation, “[a] ... claimant ... must establish the following elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Wood v. Del Giomo, 06-1612, p. 4 (La.App. 4 Cir. 12/19/07), 974 So.2d 95, 98. Our jurisprudence reflects that “[d]efamation per se is proven if the evidence demonstrates that a party has called a person a criminal or accused that person of being a criminal and has published the statement.” Hornot v. Cardenas, 06-1341, p. 20 (La.App. 4 Cir. 10/3/07), 968 So.2d 789, 802.

In finding that plaintiffs proved defamation per se, the majority opinion’s reasoning extends beyond the trial court’s findings. The majority notes that “[t]he church Defendants accused Rev. Thompson of ‘embezzlement of Church funds’ and of being a ‘thief and a ‘liar’ in- front of other members of the Church.” The majority’s focus, though, is primarily on the lawsuit that the defendants filed against Rev. Thompson and his wife in September, 2000 (the “Second Suit”). | ¿While the trial court made note of the fact of the filing of the Second Suit, it made no mention of it as part of the trial court’s reasons for finding defamation per se. Accordingly, the majority’s reliance on the Second Suit as evidence of defamation per se is misplaced.

Even if the trial court’s finding of defamation per se was based on the Second Suit, I disagree that the filing of the Second Suit constitutes defamation per se. While the Second Suit made general allegations that Rev. Thompson “misappropriated Church funds and used them for his own personal benefit” and that an audit of church property conducted after Rev. Thompson left the church resulted in a finding of missing church property, the lawsuit never mentioned the CD or referred to Rev, Thompson as a “thief.” Nor was there a judicial determination that the allegations of that Second Suit were false and the majoritys finding that “there was never any truth to the allegations” of the Second Suit is not supported by the record. As per this Court’s rationale in Kirksey v. New Orleans Jazz & Heritage Foundation, Inc., 12-1851 (La.App. 4 Cir. 2/27/13), 116 So.3d 664, a defamation suit also involving allegations of misappropriation of funds, the filing of the Second Suit does not constitute defamation per se. To hold otherwise would have a chilling effect on the right of individuals to petition the court for redress of an alleged grievance without fear of retribution.

Finally, turning to the trial court’s finding that a “member of the Deacon ... Board[ ] resorted to making accusations of theft on a local TV news show, I do not | jjfind that this is supported by the record and, even if Mr. Tedford accused Rev. Thompson of theft, his actions cannot be imputed to the church or the defendants. As previously noted, in the Fox 8 News broadcasts, while he expressed dissatisfaction with Rev. Thompson, Mr. Tedford never referred to Rev. Thompson as a thief. More importantly, while Mr. Ted-ford is a deacon in the church, he is not an employee and he receives no pay from the church. Even if his statements defamed Rev. Thompson, he had no authority to speak on behalf of the church, as admitted by Rev. Thompson at trial:

Q. ... You referenced John Tedford. He was a deacon?
A. Yes, sir.
Q. He wasn’t on the board of trustees?
A. No, sir.
Q. He wasn’t head deacon?
A. No, sir.
Q. And to your knowledge, was he authorized by anybody at the church to go speak on T.V.?
A. No, sir.
Q. That would have been beyond the scope of what he should have been doing, right?
A. Right, unless Mr. Bridges ordered him to. I don’t know.

The Louisiana Supreme Court indicated in Boulos v. Morrison, 503 So.2d 1, 3 (La.1987), the following as to an “agent’s” binding a principal:

An agent’s power or authority is composed of his actual authority, express or implied, together with the apparent authority which the principal has vested in him by his conduct. See Interstate Electric Co. v. Frank Adam Electric Co., 173 La. 103, 136 So. 283 (1931). As between principal and agent the limit of the agent’s authority to bind the principal is governed by the agent’s actual authority. As between the principal and third | fipersons, the limit of an agent’s authority to bind the principal is governed by his apparent authority

There is no evidence in this case that Mr. Tedford had either express or implied authority and accordingly, his statements in the Fox 9 News broadcasts cannot be imputed to the church.

      . Bank One is not a party to the instant appeal. Subsequent to the trial, Bank One set-tied with the Thompsons.

      . In April 2010, the trial court also denied the Church Defendants' motion for summary judgment. This court denied the Church Defendants' writ application seeking review of the denial of their motion for summary judgment.

      . Rev. Thompson and Mrs. Thompson testified to the defamatory statements made by the Church Defendants, as laid out in their petition. However, in Anthony Bridges’ deposition testimony he denied making any defamatory statements against Rev. Thompson and Mrs. Thompson.

      . The trial court, in essence, granted the Bank's motion for new trial and decreased the award for back pay by $116,412, which was Rev. Thompson’s wages that he earned from 2000 to 2002.

      . Although it was filed after Rev. Thompson's petition for defamation, the 2000 lawsuit constitutes defamation. The 2000 lawsuit also further corroborates Rev. Thompson’s initial allegations that the Church Defendants made defamatory statements about him and published these statements to others in the community.

      . La. R.S. § 14:49 provides:
      A qualified privilege exists and actual malice must be proved, regardless of whether the publication is true or false, in the following situations:
      (1)Where the publication or expression is a fair and true report of any judicial, legislative, or other public or official proceeding, or of any statement, speech, argument, or debate in the course of the same.
      (2) Where the publication or expression is a comment made in the reasonable belief of its truth, upon,
      (a) The conduct of a person in respect to public affairs; or
      (b) A thing which the proprietor thereof offers or explains to the public.
      (3) Where the publication or expression is made to a person interested in the communication, by one who is also interested or who stands in such a relation to the former as to afford a reasonable ground for supposing his motive innocent.
      (4) Where the publication or expression is made by an attorney or party in a judicial proceeding.

      . Although the uncalled witness rule does not apply to Anthony Bridges, it can be inferred that the trial court found that Anthony Bridges' testimony did not rebut the presumption of falsity and malice with regards to his defamatory statements against Rev. Thompson in the petition.

      . Given our findings that publication was established by the circumstantial evidence, we find it unnecessary to address the Church Defendants' contention that the trial court abused its discretion in admitting the Fox 8 News Broadcast, which they contend was irrelevant and overly prejudicial.

      . The trial court did note that Rev. Thompson was able to work as an executive director of a social program; however, this was an unpaid position.

      . The trial court originally awarded Rev. Thompson $312,640.00 for back pay. However, the trial court later amended the original award from $312,640.00 to $196,228.00, providing for a deduction of Rev. Thompson's earned wages in 2000, 2001, and 2002. Rev. Thompson earned approximately $25,667 in 2000; $39,000 in 2001; and $51,000 in 2002.

      .The trial court allocated fault 30% to Bank One and 70% to the Church Defendants.

      . The letter stated the following:
      Rev. Norwood Thompson has been under may care since 1996. He has ischemic cardiomyopathy with an ejection fraction of 10%, nonamendable to further revasculari-zation. He also has an implantable cardiac defibrillator, severe hypertension, and renal artery stenosis. It is my opinion that Rev. Thompson is not capable of performing the tasks which will allow him to obtain gainful employment.

      . At trial, Rev. Thompson testified that he was currently the president of the Southern Christian Leadership Conference and had served in this position for at least the past five or six years. Rev. Thompson also testified that he was the chairman of the Greater New Orleans and Jefferson Gun Buy-Back Program, and he recently became the chaplain for the New Orleans City Council.

      . La. C.C.P. art. 2133(A) provides:
      A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appel-lee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee's action.

      . The record before this Court does not contain any supplements or amendments to the original lawsuit.

      . I would note that the record clearly reflects that this litigation stemmed from the misinformation provided to the members of the First Zion Baptist Church of New Orleans by Bank One regarding the CD mistakenly attributed to the church. The members’ investigation of the church’s finances and their confronting Rev. Thompson at that time were reasonable given the information obtained from Bank One.

      . The trial court’s reference here is to the Fox 8 News broadcasts that included interviews with John Tedford. The trial court mistakenly refers to Mr. Tedford as a member of the Trustee Board. All parties agree that Mr. Tedford was not a member of the Trustee Board; rather, he was only a member of the Board of Deacons.

      . In those Fox 8 News broadcasts, Mr. Ted-ford never referred to Rev. Thompson as a “thief.” Nor did Mr. Tedford make any reference to the CD or Rev. Thompson’s misappropriation of church funds for his own benefit. The trial court’s finding to the contrary is misplaced.

      .Again, in the Reasons for Judgment, the trial court’s only finding that Rev. Thompson was called a “thief” was in reference to the Fox 8 News broadcasts. The trial court made no other specific finding that Rev. Thompson was called a "thief."

      .Indeed, in finding that the filing of the Second Suit amounted to defamation per se, the majority declined to address whether die Fox 8 News broadcasts constituted "publication to a third party,’’ commenting that because of the defendants’ liability for publishing defamatory words through the Second Suit, "it is unnecessary to address whether the Fox 8 New Broadcast meets the publication requirement for defamation.”

      . The filing of this suit also occurred after the instant lawsuit was filed; much like the broadcasts, it was not part of the original petition and was not added to it. Accordingly, it too cannot form a factual basis for this suit.

      . While other members of the Board of Deacons were named as defendants in this suit, Mr. Tedford was not. This seems likely since Mr. Tedford’s interviews with Fox 8 News took place after this suit was filed.


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Tyrone HALL.
    No. 2013-KA-1194.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2014.
    Rehearing Denied April 3, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Donna An-drieu, Assistant District Attorneys, New Orleans, LA, for Appellee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

| defendant Tyrone Hall appeals his conviction and sentence for possession of cocaine. For the following reasons, we affirm.

PROCEDURAL HISTORY:

The defendant was charged with one count of possession of cocaine, a violation of La. R.S. 40:967(0(2), on July 13, 2012. The defendant filed a motion for a preliminary hearing and a motion to suppress evidence, statements, and identifications. Following a hearing, the trial court denied the motion to suppress evidence and granted the motion to suppress statements. The trial court also found probable cause and set a trial date. After several continuances, trial was set for April 30, 2013.

The defendant appeared for trial, after which a six person jury unanimously found him guilty as charged. On May 10, 2013, the trial court sentenced the defendant to five years at hard labor with credit for time served. The trial court 12stated that “[i]t will be Bossier Parish Drug Treatment Facility.” Immediately after the trial court pronounced the sentence, the State filed a habitual offender bill of information pursuant to La. R.S. 15:529.1, alleging that the defendant was a fourth felony offender. However, at the sentencing hearing, the trial court granted the defendant’s motion for appeal prior to sentencing.

A multiple bill hearing was set for June 21, 2013. The defendant pled not guilty and the hearing was continued to July 19, 2013. On July 10, 2013, the defendant filed a motion to quash the multiple bill and a motion for discovery under La. R.S. 15:529.1, both of which were set for hearing on September 13, 2013. Thus, this appeal was lodged prior to sentencing the defendant on the multiple bill.

FACTUAL BACKGROUND:

Officer Walter Edmond testified that he and his partner, both assigned to the Sixth District on June 15, 2012, were on proactive patrol near the intersection of First and S. Prieur streets, when they observed the defendant exit a green pickup truck near the intersection First and S. Roman streets. The officers had previously-observed the same green truck circle the area several times.

Officer Edmond observed the defendant, who was wearing a “very loud,” “goldish yellow” shirt, engage in a hand-to-hand transaction with another man. The officers followed the defendant and decided to stop him because they believed he had purchased drugs in the transaction. The defendant looked surprised when |she saw the officers, but continued walking. The officers approached the defendant and asked him random questions such as his address, where he was going, etc. As the defendant spoke, a white rock-like substance wrapped in plastic fell out of his mouth. The defendant attempted to step on the object, but the officer prevented him from doing so and his partner picked up the object, which he believed to be crack cocaine. Officer Edmond handcuffed the defendant and read him his rights.

On cross-examination, Officer Edmond testified that there were no photographs of the evidence taken at the scene, nor were any audio or video recordings made of the officers’ interactions with the defendant. Officer Edmond also conceded that he did not observe the defendant make any furtive movements or put his hand to his mouth as the officers approached. No crack pipe, glass tube or other paraphernalia were found during the pat-down incident to arrest.

Officer Devin Ashmore, partner of Officer Edmond on the day of defendant’s arrest, testified and corroborated Officer Edmond’s testimony.

The defense called Stephen Fuller, an investigator for the New Orleans Public Defender’s Office. He visited the site of the arrest and took photographs to demonstrate the distance between where the officers were located and the locations they observed the defendant. The distance between the officers and the defendant as he made the hand-to-hand transaction was approximately 611 feet.

I ¿DISCUSSION:

In the defendant’s first assignment of error, he contends that the trial court erred in denying his motion to suppress evidence. Specifically, the defendant argues that no traffic violations were observed with regard to the green truck, and that he did not flee or make any furtive gestures when the officers witnessed the hand-to-hand transaction. Therefore, the officers had no reasonable grounds to approach the defendant and conduct an investigatory stop. Accordingly, the defendant contends, the seizure of the crack cocaine wrapped in plastic that fell from his mouth resulted from an illegal detention, and the crack seized from him should have been suppressed.

The defendant further argues that pursuant to State v. Tucker, 626 So.2d 707 (La.1993), the motion to suppress should have been granted. Specifically, the defendant submits that in Tucker, the Louisiana Supreme Court held that abandoned property seized pursuant to a stop conducted without a basis for reasonable suspicion had to be suppressed. Likewise, in this case, the defendant contends that the officers did not have reasonable cause to stop the defendant, who subsequently discarded the crack cocaine.

The Louisiana Supreme Court has recognized that a trial court’s factual findings regarding the admissibility of evidence seized without a warrant are entitled to great weight, while legal findings or con-elusions by the trial court are reviewed de novo:

This court recently re-examined the standard which a reviewing court must apply to determine the correctness of a trial court’s decision relative to the suppression of evidence. State v. Wells, 2008-2262, p. 4-5 (La.7/6/10); 45 So.3d 577, 580-581. Initially, the State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. La.C.Cr.P. art. 703(D). The trial court’s ruling on the matter must be afforded great weight and will not be set aside unless there is an abuse of discretion. Wells, 2008-2262, p. 5; 45 So.3d at 581.
The analysis may be further broken down into the component parts of the trial court decision. “When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” Wells, 2008-2262, p. 4; 45 So.3d at 580; State v. Hunt, 2009-1589, p. 6 (La.12/1/09); 25 So.3d 746, 751. Legal findings or conclusions of the trial court are reviewed de novo. Id.; State ex rel. Thibodeaux v. State, 2001-2510, p. 1 (La.3/8/02); 811 So.2d 875.

State v. Thompson, 11-0915, pp. 13-14 (La.5/8/12), 93 So.3d 553, 563, reh’g denied (6/29/12)(footnote omitted).

In State v. Harris, 11-0941, pp. 3-4 (La.App. 4 Cir. 8/2/12), 98 So.3d 903, 908-09, this Court recognized the following principles with respect to searches and seizures:

The Fourth Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, protects the right of the people “against unreasonable searches and seizures.” U.S. Const. Amend. IV; see also Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Louisiana Constitution, too, protects “persons, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. Art. 1, § 5. Indeed, the protection against unreasonable searches and seizures under the state constitution is in limited circumstances even greater than that under the federal constitution. See State v. Tucker, 626 So.2d 707 (La.1993) (see discussion, post).
“Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests.” State v. Bell, 09-574, p. 14 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 512. Accordingly, any inquiry under the Fourth Amendment and Article 1, Section 5 always centers on reasonableness.

| /With regard to the reasonableness of investigatory stops conducted pursuant to La.Code Crim. Proc. art. 215.1, this Court acknowledged the following principles in State v. James, 07-1104, pp. 3-4 (La.App. 4 Cir. 3/5/08), 980 So.2d 750, 752-53:

In Louisiana, a police officer “may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” La.Code Crim. Proc. art. 215.1(A); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (the right to make such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense). Once a person is stopped pursuant to Article 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La.Code Crim. Proc. art. 215.1(B); see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (although the level of suspicion need not rise to the probable cause required for a lawful arrest, the police must articulate something more than an inchoate and unparticularized suspicion or hunch); State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (to make a brief investigatory stop on less than probable cause to arrest, the Upolice must have a particularized and objective basis for suspecting the particular person stopped of criminal activity).

In determining whether the police possessed the requisite minimal level of objective justification for an investigatory stop based on reasonable suspicion of criminal activity, reviewing courts look at the totality of the circumstances, allowing officers to make inferences from and deductions about the cumulative information available to them based on their own experience and specialized training. U.S. v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); see also State v. Williams, 421 So.2d 874, 875 (La.1982) (to determine whether a reasonable, articulable suspicion existed, the court must weigh all of the circumstances known to the police at the time the stop was made). An officer’s past experience, training and common sense may be considered in determining if the inferences drawn from the facts were reasonable. State v. Parker, 97-1994, p. 6 (La.App. 4 Cir. 12/9/98), 723 So.2d 1066,1068.

In State v. Francis, 10-1149, pp. 3-4 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 707-OS, this Court recognized that while an individual’s presence in a high-crime area, standing alone, is not sufficient to establish reasonable suspicion, an area’s reputation is a fact upon which officers may rely in determining reasonable suspicion, and which a trial court may consider as part of the totality of the circumstances when ruling on a motion to suppress:

An individual’s presence, in an area of expected crime, standing alone, is of course insufficient to support a reasonable, particularized suspicion that a person is involved in criminal activity. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). But we have recognized that the reputation of an area is an articulable fact upon which an officer may rely in determining reasonable suspicion. See State v. Ratliff, 98-0094, p. 3 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254. Inquiry into the criminal character of an area is a legally relevant contextual consideration when analyzing a Terry stop. Adams v. Williams, 407 U.S. 143, 144, 147-48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). [footnote omitted][emphasis added]

With regard to an officer’s observation of a hand-to-hand transaction, in State v. Ulmer, 12-0949, pp. 8-9 (La.App. 4 Cir. 5/29/13), 116 So.3d 1004, 1009⅜0,8 this Court recently recited the Louisiana Supreme Court’s finding that such an observation can suffice as a basis for an investigatory stop:

Explaining its finding that the observation of “an apparent hand-to-hand transaction” provided justification for an investigatory Terry stop, the Louisiana Supreme Court in the Fearheiley case stated:
In the present case, the police officer observed the “independent, yet complementary and simultaneous actions by two parties,” conducting an apparent hand-to-hand transaction, Black v. United States, 810 A.2d 410, 413 (D.C.2002), although the officer could not see what either person had in his or her hand. The apparent exchange lasted no more than 15 to 20 seconds inside one of two cars which had arrived separately in the parking lot of a Circle K store with no apparent purpose that evening other than facilitating the brief exchange before the parties, who appeared to the officer to have no other connection to each other, went their separate ways. That the encounter had other possible innocent explanations, including the one offered by defendant after the stop that the unidentified female involved in the transaction had paid off a debt she owed him, did not. require the police officer to turn a blind eye to the circumstances and ignore what two years of experience in narcotics investigations, encompassing 15 to 20 arrests, had taught him, that in the narcotics trade, “when it’s done outside, it’s done very fast from one hand to the next.” See Arvizu, 534 U.S. at 274, 122 S.Ct. at 751 (“Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.”) (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883 and Soholow, 490 U.S. at 7, 109 S.Ct. at 1585).

Id.

Similarly, this court in State v. Schaffer, 99-0766 (La.App. 4 Cir. 4/12/00), 767 So.2d 49, found that the observance by police officers h,of two individuals engaged in activity that was consistent with a drug transaction coupled with flight by the defendant provided the officers with reasonable grounds to stop the defendant. In the Schaffer case, the officers were on proactive patrol in a housing development when they observed the defendant and another individual engage in an apparent hand-to-hand exchange in the rain. When the two individuals saw the police car, they stood up abruptly and held onto the objects that they had in their hands. When the officers exited their vehicle, the defendant fled. This court reasoned that “[t]he combination of the defendant’s flight and the observance of activity consistent with a drug transaction gave the officers reasonable suspicion.” Schaffer, 99-0766 at pp. 8-10, 767 So.2d at 53-55; see also State v. hazard, 2008-0677, p. 5 (La.App. 4 Cir. 12/10/08), 2 So.3d 492, 496 (analogizing to the Schaffer case and finding police officers had reasonable suspicion to stop when the officers “observed a hand-to-hand exchange between Mr. Lazard and an unknown male that they suspected was a drug transaction based upon their experience and the reputation of the area”), [emphasis added]

In this case, Officer Edmond testified at trial and at the suppression hearing that he and his partner observed a green truck circling the area in which he and his partner were on proactive patrol. He subsequently observed the defendant, who was wearing a “loud” gold and yellow shirt, exit the green truck. Officer Edmond further testified that he observed a hand-to-hand transaction between the defendant and an unknown individual at the intersection of First and S. Prieur streets, an area with a reputation for narcotics transactions, and that he observed the defendant and the individual part ways directly after the transaction. Officer Edmond and his partner approached the defendant and began conversing with him from a distance of one to two feet, at which time a piece of crack cocaine fell out of his mouth. Thus, pursuant to State v. Fearheiley, 08-0307, p. 2, 979 So.2d at 489, the officers in this case had reasonable suspicion to conduct an investigatory stop after seeing the defendant engage in a hand-to-hand transaction. Accordingly, the crack cocaine that fell from the defendant’s mouth was legally seized, and the trial court properly denied the motion to suppress evidence.

hpAs t° the defendant’s second argument that abandoned property seized pursuant to a stop conducted without a basis for reasonable suspicion had to be suppressed, in this case, the officers’ observation of the hand-to-hand transaction established reasonable suspicion to conduct an investigatory stop. See State v. Fearheiley, 08-0307, p. 2, 979 So.2d at 489. Additionally, the defendant did not abandon the crack cocaine, as Officer Edmond testified that it simply fell from the defendant’s mouth as the officers spoke to him. Thus, State v. Tucker offers no support for the defendant’s argument. This assignment of error lacks merit.

In the defendant’s second assignment of error, he contends that the trial court imposed an excessive sentence. The State submits that after the appeal was lodged, the trial court adjudicated the defendant as a fourth felony offender, referencing “Exhibit A” to its appellate brief. However, the State erroneously attached a docket master relating to a different case entirely. Nevertheless, a review of the docket master for this case through the Criminal District Court’s computer system indicates that the defendant has, in fact, been adjudicated a' multiple offender, although the sentencing hearing regarding same has not been held.

Accordingly, because the defendant has been adjudicated a fourth felony offender, and the trial court will vacate subject sentence prior to imposing the sentence as a fourth offender, this assignment of error is moot.

Our review of the record for errors patent reveals one. The trial court granted the defendant’s motion for appeal prior to sentencing. However, this Court has noted that a dismissal of the appeal for this reason is not necessary because it would only unnecessarily delay the appeal process. State v. Fields, 12-0674, n.S Jjj(La.App. 4 Cir. 6/19/13), 120 So.3d 309, 314; State v. Martin, 483 So.2d 1223, 1224-25 (La.App. 4th Cir.1986). Accordingly, no corrective action is needed.

CONCLUSION:

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The State sought review of the trial court’s ruling granting the motion to suppress statements. This Court denied the writ. The defendant did not seek review of the denial of his motion to suppress evidence.

      . Also on May 10, 2013, the defendant filed a motion for post-judgment verdict of acquittal and a motion for new trial. Both motions were denied.

      . The minute entry and docket master indicate that Defendant was "recommended for [the] Bossier City Program.” R. 6, 24.

      .The multiple bill adjudication and sentence, if appealed, will be raised in a subsequent appeal. The State indicates in its brief that it attached the docket master entries evidencing that the multiple bill hearing was conducted on September 30, 2013, at which time the trial court adjudicated the defendant a fourth felony offender and set a sentencing date of December 13, 2013. However, the docket master attached does not pertain to this defendant.

      . The rock-like substance, which was identified as crack cocaine, was introduced as an exhibit by the State. The defense did not object to substance being introduced as crack cocaine, but did object to it being characterized as “the crack cocaine that was recovered off of the ground that fell out of the defendant’s mouth.”

      . La. Code Crim. Proc. art. 215.1 provides:
      A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
      B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.
      C. If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
      D. During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. However, nothing herein shall prohibit a peace officer from compelling or instructing the motorist to comply with administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950.

      . See also State v. Pratt, 08-1819 (La.9/4/09), 16 So.3d 1163, 1165 (quoting State v. Fearhei-ley, 08-0307, p. 2 (La.4/18/08), 979 So.2d 487, 489, in reversing a trial court’s grant of a motion to suppress, noting that "[p]olice officer's observation of apparent brief hand-to-hand transaction inside a vehicle gave rise to reasonable suspicion for an investigatory stop ...”).

      . State v. Fearheiley, 08-0307, p. 2 (La.4/18/08), 979 So.2d 487, 488-89.