text:
    IN RE: Arthur GILMORE, Jr.
    NO. 2016-B-0967
    Supreme Court of Louisiana.
    October 19, 2016
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

This disciplinary matter arises from formal charges -filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Arthur Gilmore, Jr., an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of a serious crime. In re: Gilmore, 13-1284 (La. 6/19/13), 117 So.3d 500.

UNDERLYING FACTS

In 2010, a federal grand jury in the Western District of Louisiana returned an indictment against respondent, a member of the Monroe City Council. The indictment charged respondent with engaging in a racketeering enterprise whereby he used his office and'position as an elected city councilman to extract bribes in the form of cash and other things of value from individuals and organizations having business before the council, in exchange for which respondent took actions favorable to these individuals and organizations. •• ■.

The matter first proceeded to trial in April 2011. On May 10, 2011, a jury found respondent guilty of violating the RICO Act, 18 U.S.C. § 1962(c), and the' Hobbs Act, 18 U.S.C. § 1951, which prohibits actual or attempted extortion affecting interstate or foreign commerce. Following respondent’s conviction, we placed him on interim suspension in In re: Gilmore,-11-1401 (La. 7/19/11), 65 So.3d 1289.

Thereafter, the federal district court granted respondent’s motion for néw trial in the criminal case and vacated his conviction. In light of this order, the ODC filed a motion to dissolve respondent’s interim suspension. We granted the motion and dissolved respondent’s interim suspension on September 21, 2011. In re: Gilmore, 11-1401 (La. 9/21/11), 72 So.3d 342.

In October 2011, the government filed a motion for reconsideration of the ruling on the motion for new trial. Following a hearing, the federal district court granted the motion for reconsideration and reinstated respondent’s May 2011 convictions of racketeering and extortion. On May 2,2012, we again placed respondent on interim suspension based upon his conviction of a serious crime. In re: Gilmore, 12-0852 (La. 5/2/12), 88 So.3d 441.

In March 2013, the federal district court granted a second motion for new trial in respondent’s criminal case, prompting him to seek the dissolution of his interim suspension. We granted respondent’s motion and dissolved his interim suspension on April 3, 2013. In re: Gilmore, 12-0852 (La. 4/3/13), 110 So.3d 130.

On May 13, 2013, respondent was, , retried before a jury in federal district, court. During the trial, a local real estate developer testified that in 2007 he had regularly given respondent cash contributions and in-kind donations in exchange for favorable assistance with certain zoning variances he sought. In late 2007 or early 2008, the developer became an FBI informant. In 2008, the developer recorded a conversation with respondent. After respondent brought up the developer’s pending zoning application and other business before the city, the conversation turned to respondent’s recently concluded re-election campaign. Respondent then said that he was “still taking campaign contributions',” and the developer gave him $1,000, saying, “and all I ask for is a fair shake and you do something for me.” Respondent replied, “No problem.”

Approximately eighteen months later, in 2009, the developer recorded a second conversation with respondent. Respondent began the conversation by updating the developer on a proposal pending in the city council to ratify an amendment to a contract between one of the developer’s companies and the city. Respondent then requested $207 from the developer on behalf of a constituent whose utilities were about to be disconnected. The same evening, the city council approved the contract amendment, and the developer gave the $207 to respondent a couple of days later.

On May 16, 2013, respondent was found guilty of racketeering but not guilty of extortion. Following respondent’s conviction, we placed him on interim suspension for a third time. In re: Gilmore, 13-1284 (La. 6/19/13), 117 So.3d 500.

On September 26, 2013, respondent was sentenced to serve twenty-four months in federal prison. This sentence was below the sentencing guidelines range, and the judge gave the following reasons for the downward departure:

In this case, the Government’s main witness engaged in an ongoing program of planned enticement to provoke [respondent] into agreeing to bribes in exchange for perceived favors from [respondent’s] position with the Monroe City Council. Because of that, the Guidelines, in my opinion, may overstate the relative seriousness of [respondent’s] actions and the application of an equitable sentence.
So I find there exists a mitigating circumstance of a kind not adequately taken into consideration by the Guidelines and that in order to advance the objective set forth under the Guidelines, the sentence will be different from that described.

On November 13, 2014, the United States Court of Appeals for the Fifth Circuit affirmed respondent’s racketeering conviction. United States v. Gilmore, 590 Fed.Appx. 390 (5th Cir. 2014) (not designated for publication).

DISCIPLINARY PROCEEDINGS

In July 2015, the ODC filed one count of formal charges against respondent, alleging that he violated Supreme Court Rule XIX, § 19 (lawyers convicted of a crime). Respondent, through counsel, answered the formal charges, essentially admitting to his misconduct and' asking for a sanction “other than disbarment.” In mitigation, respondent offered that his conviction was based on only two violations, those being a $1,000 campaign contribution and a $207 payment for a constituent’s electric bill. The matter then proceeded to a formal hearing before the hearing committee.

Formal Hearing

The hearing committee conducted the formal hearing in December 2015. Both respondent and the ODC introduced documentary evidence for the committee’s consideration. Respondent called several character witnesses to testify before the committee. He also testified on his own behalf and on cross-examination by the ODC.

Hearing Committee Report

Following the hearing, the hearing committee determined that respondent committed a “serious crime” under Supreme Court Rule XIX, § 19. The committee further determined that respondent violated the following provisions of the Rules of Professional Conduct: Rules 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(e) (stating or implying an ability to influence improperly a judge, judicial officer, government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law). In making these determinations, the committee considered both the evidence and testimony presented at the hearing, summarizing the testimony as follows:

Judge Robert Johnson of the Fourth Judicial District Court for the Parish of Ouachita testified that respondent is smart, compassionate, and wants to help people. He. also described respondent as a good and decent man, a man of integrity, and a generous man who cared for his constituents and the people of his community. He indicated respondent was a family man who kept his promises, and he did not believe respondent should be disbarred. Valerie Rowley, respondent’s long-time neighbor, testified that respondent .is caring, honest, generous, and trustworthy. She also indicated he is a deacon in his church and is particularly helpful to the elderly. Ellen Hill, a committee member of the Monroe Planning and Zoning Commission and an employee of Louisiana Delta Community College, described respondent as professional, concerned, and committed. Reverend Sam Moore described "respondent as principled, honest, compassionate, generous, and trustworthy. Jamie Mayo, the Mayor of Monroe, testified that he served on the Monroe City Council with respondent. Mr. Mayo indicated respondent was concerned and cared about his constituents, is a man of the highest integrity, and has a strong work ethic. He further described respondent as dependable, helpful, generous, trustworthy, and religious. David Creed, who is the Executive Director of North Delta Planning and Development, testified that respondent was a member of North Delta’s board and a Vice President. He indicated respondent upheld his duties, and he rated respondent highly for honesty. Reverend James Earl Jackson testified that he has known respondent since 1966. He indicated respondent was a deacon at his church, had a love of God, and was a generous giver to the church. He also described respondent as having a strong work ethic' and concern for the community as well as being honest, trustworthy, and non-materialistic. Ibra January, the Executive Director of the Ouachita Multi-Purposes Community Action Program, indicated respondent served on the program’s board with him. He testified that respondent tries to help people in need in Ouachita Parish and has a passion for the poor. He also described respondent as trustworthy, honest, and committed to his church.

Respondent testified that he was elected to the Monroe City Council in 1996 and reelected three consecutive times thereafter, the last.time being in 2008. He also indicated that he worked as an assistant district attorney in the child support section from 1995 to 2010. He stated he returned to Monroe after law school because he wanted to get into politics there in order to help the elderly and the poor of his hometown. Respondent also testified that he is a Christian, a generous giver, a church deacon, chairman of the board of deacons, and superintendent of education in his church’s Sunday school. He further indicated his belief in giving of his money, time, and talent to the church. He has also advised African-American men through an African-American fraternity, working with them in doing manual labor in various Monroe communities. He testified that honesty is important to him and that he has used his personal money to help his constituents. Regarding his conviction, he stated he feels remorse for putting his family “through this” and for having used “bad judgment.” Despite his conviction, he believes he has a good reputation in his community.

Based on the evidence presented, and noting respondent admitted to his conviction, the committee determined the ODC proved by clear and convincing evidence that respondent was convicted of a serious crime. The committee further determined respondent knowingly and intentionally accepted money to use his official position on the Monroe City Council to influence the outcome and to affect certain zoning issues before the Council. Respondent violated duties owed to the public, the legal system, and the legal profession, causing harm to the public trust and the legal profession. Citing the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is disbarment.

In aggravation, the committee found a prior disciplinary record (a 1992 admonition for failing to promptly remove his suspended law partner’s name from the law office’s newspaper advertisement), a dishonest or selfish motive, and substantial experience in the practice of law (admitted 1983). In mitigation, the committee found full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, and remoteness of the prior disciplinary offense.

■ Although the committee considered respondent’s misconduct in light of the permanent disbarment guidelines, it ultimately decided permanent disbarment was not warranted. In rejecting permanent disbarment as the appropriate sanction, the committee was compelled by respondent’s character witnesses, who all believed that he had been punished enough and that permanent disbarment should be reserved for a more egregious offense than respondent’s. The committee also cited the mitigating factors present as well as the judge’s reasons for imposing a more lenient sentence upon respondent than the sentencing guidelines presented.

Based on this reasoning, the committee recommended respondent be disbarred, but not permanently. The committee further recommended respondent be given credit for the time he has served on interim suspension.

The ODC filed an objection to the committee’s report and recommendation, arguing that permanent disbarment should be imposed.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee correctly applied the Rules of Professional Conduct by finding respondent in violation of Rules 8.4(b), 8.4(c), 8.4(d), and 8.4(e). Although the ODC did not charge respondent with any of these rule violations, the substance of the formal charges gave him adequate notice of his misconduct, namely his criminal conviction, and the facts underlying his conviction clearly implicate these rules.

The board then determined respondent intentionally violated duties owed to the public by engaging in a criminal act while acting in his capacity as an elected official. His misconduct harmed the public, especially his constituents, by depriving them of a fair governmental process and harmed the public’s perception of the legal profession. The board agreed with the committee that the baseline sanction is disbarment.

The board adopted the aggravating and mitigating factors found by the committee. Additionally, the board recognized respondent’s illegal conduct as an aggravating factor and respondent’s remorse as a mitigating factor.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended he be permanently disbarred.

Respondent filed an objection to the board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule. XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, §:5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La. 4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La. 1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense,--and; the extent of the' aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La. 1989).

Here, respondent stands convicted of racketeering by accepting bribes in exchange for taking favorable actions on behalf of individuals and organizations having business before the Monroe City Council, of which respondent was an' elected member. This crime is a felony under federal law and clearly warrants'serious discipline. The record supports the ’ rule violations found by the hearing committee and the disciplinary board. ‘'

Respondent knowingly and intentionally violated duties owed to the public and to the legal system by engaging in a criminal act while acting in his capacity as an elected official, causing actual harm. The baseline sanction for this type of misconduct is disbarment.

Aggravating factors present include a prior disciplinary record, a dishonest or selfish motive, substantial experience in the practice of law, and illegal conduct. The mitigating factors present are full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, remorse, and remoteness of the prior disciplinary offense.

In concluding that permanent disbarment is not an appropriate sanction in this matter, the hearing committee gave great weight to the testimony of the character witnesses, the applicable mitigating factors, and the reasons given by the federal district judge for imposing a more lenient sentence upon respondent than called for by the sentencing guidelines. We agree that all of these factors are compelling, and accordingly, we find that it is not necessary to impose permanent disbarment in this case.

Accordingly, we will reject the disciplinary board’s recommendation and disbar respondent, retroactive to June 9, 2013, . the date of his most recent interim suspension. We further order that respondent be given credit for the time he served on interim suspension during the period of June 19, 2011 to September 21, 2011 and during the period of May 2, 2012 to April 3, 2013.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Arthur Gilmore, Jr., Louisiana Bar Roll number 1059, be and he hereby is disbarred, retroactive to June 9, 2013, the date of his most recent interim suspension. Respondent shall also be given credit for the time he served on interim suspension during the period of June 19, 2011 to September 21, 2011 and during the period of May 2, 2012 to April 3, 2013. Respondent’s name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

Hughes, J., dissents.

I respectfully dissent and would impose a lesser sanction.

      . The $1,000 payment was not reported as a campaign contribution on respondent's campaign finance reports.

      . In its unpublished opinion, the Court of Appeals framed the issue'before it as follows:
      In May 2013, a jury found Arthur Gilmore, Jr., a former Monroe, Louisiana city councilman, guilty of violating the Racketeering Influence and Corrupt Organizations Act ("RICO"). In this direct appeal, we are asked two questions: (1) was Gilmore entitled to a jury instruction on entrapment, and (2) was there sufficient evidence to support his conviction under RICO?
      We answer "no” to the first, "yes” to the second, and AFFIRM Gilmore’s conviction.

      . The ODC and respondent stipulated that four other character witnesses would testify similarly to the witnesses who appeared before the committee.

      . We agree with the board that although the ODC did not charge respondent with specific violations of Rule 8.4, the substance of the formal charges gave him adequate notice of his misconduct, namely his criminal conviction. See In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117(1968).


source: Caselaw Access Project

license: Public Domain

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    April 7, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Union, 3rd Judicial District Court Div. A, No. 41,245; to the Court of Appeal, Second Circuit, No. 51394-CW

11 Denied.

HUGHES, J., would grant the writ.


text:
    STATE of Louisiana v. Shawn BARABIN
    NO. 2017-OK-0347
    Supreme Court of Louisiana.
    April 7, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 15-196384; to the Court of Appeal, First Circuit, No. 2016 KW 1117R

11 Denied.


text:
    STATE IN the INTEREST OF T.M.B & T.T.B
    NO. 2017-CJ-0477
    Supreme Court of Louisiana.
    April 7, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial Distinct Court Div. I, No. JC-2014511; to the Court of Appeal, Third Circuit, No. JAC 17-15

| iDenied.

HUGHES, J., would grant.


text:
    Jeremy SHEPHARD and Emily Shephard, and Michael Jackson and Tamisia Jackson v. AIX ENERGY INC., AIX Operating Company, Bear Creek Services, LLC, National Union Fire Insurance Company, Avery Graves IV, Republic Well Testing, LLC
    No. 2017-CC-0484
    Supreme Court of Louisiana.
    April 7, 2017
   Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court, Div. B, No. 577,546; to the Court of Appeal, Second Circuit, No. 51,-544-CW

I iDenied.


text:
    STATE of Louisiana IN the INTEREST OF T.W.
    NO. 2017-CJ-0486
    Supreme Court of Louisiana.
    April 7, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, East Baton Rouge Juvenile Court, No. 2015 CC 00044; to the Court of Appeal, First Circuit, No. 2017 CW 0222

I iDenied.


text:
    SENIOR’S CLUB ADHC AND PCA CENTER (LA. MEDICAID PROVIDER NO. 17259), Mrs. Karen McCoy & Mr. T.J. McCoy, Jr. v. STATE of Louisiana, THROUGH the DEPARTMENT OF HEALTH & HOSPITALS
    No. 2017-OC-0342
    Supreme Court of Louisiana.
    April 7, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 629,987; to the Court of Appeal, First Circuit, No. 2015 CA 1165

hNot considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    STATE of Louisiana v. Robert JENKINS
    NO. 2017-KK-0555
    Supreme Court of Louisiana.
    April 7, 2017
   Applying For Supervisory .and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 528-235; to the Court of Appeal, Fourth Circuit, No. 2017-K-0277

|, Stay denied. Writ denied.

HUGHES, J., would grant.


text:
    STATE EX REL. Derrick Jerome ALLEN v. STATE of Louisiana
    NO. 2013-OK-1900
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 21847; to the Court of Appeal, First Circuit, No. 2013 CW 0701;

hNot considered. See Supreme Court Rule X, § 4.


text:
    IN RE: Appeal of the Decision of the DISCIPLINARY BOARD NO. 15-PDB-147
    NO. 2017-OB-0283
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 15-PDB-147

11 Leave to appeal denied.


text:
    STATE EX REL. Dallas TRAHAN v. STATE of Louisiana
    NO. 2015-KH-2173
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 464472; to the Court of Appeal, First Circuit, No. 2015 KW 1374

| denied.


text:
    SIERRA CLUB v. LOUISIANA PUBLIC SERVICE COMMISSION, et al.
    NO. 2017-CD-0223
    Supreme Court of Louisiana.
    April 13, 2017
   IN RE: Sierra Club;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, Louisiana Public Service Commission, No. U-32507; 19th Judicial District Court Div. D, No. 647204; to the Court of Appeal, First Circuit, No. 2017 CW 0130

| ¶ Stay denied. Writ denied.


text:
    STATE of Louisiana v. Quennel Artez WASHINGTON
    NO. 2016-KO-0718
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 4, No. 317,134; to the Court of Appeal, Second Circuit, No. 50,-424-KA

| ¶ Denied.


text:
    SUCCESSION OF Anthony SYLVESTER, Sr.
    NO. 2017-00265
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 616-471; to the Court of Appeal, Fifth Circuit, No. 16-CA-372

hDenied.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    The PARISH OF JEFFERSON v. ATLANTIC RICHFIELD COMPANY, Chevron U.S.A., Inc., Expert Oil & Gas, L.L.C., Lanoco, Inc., Lastrada Oil & Gas Limited, Chevron U.S.A. Holdings Inc., Goodrich Oil Company, Exxon Mobil Corporation, and Brammer Engineering, Inc.
    NO. 2017-CC-0327
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 732-768; to the Court of Appeal, Fifth Circuit, No. 16-C-722

h Denied.


text:
    Joy WICKER v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, State Farm Mutual Automobile Insurance Company and Cathy Craddock
    NO. 2017-CC-0360
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 647,972; to the Court of Appeal, First Circuit, No. 2016CW 1451;

| iDenied.


text:
    Frank Hayes GLADNEY and Margaret Stella Gladney Guidroz v. ANGLO-DUTCH ENERGY, L.L.C. and Anglo-Dutch (Everest) L.L.C.
    NO. 2017-C-0365
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. 01-14; to the Court of Appeal, Third Circuit, No. 16-468;

| denied.


text:
    SUCCESSION OF Joe Andy MCKINLEY
    NO. 2017-C-0368
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. L, No. 20140058; to the Court of Appeal, Third Circuit, No. 16-503;

| denied.


author: McClendon, j. GUIDRY, J.,

text:
    Martin E. REGAN, Jr. v. Assistant Attorney General, James David CALDWELL, Jr., and the Attorney General James D. “Buddy” Caldwell, and the Office of the Attorney General, State of Louisiana
    2016 CA 0659
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 07, 2017
    Rehearing Denied May 11, 2017

      Martin E. Regan, Jr., New Orleans, Louisiana, Plaintiff/Appellant, In Proper Person
    Christen Denicholas, New Orleans, Louisiana, Counsel for Plaintiff/Appellant, Martin E. Regan, Jr.
    E. Wade Shows, Grant J. Guillot, Baton Rouge, Louisiana, Counsel for Defen-danVAppellee, Attorney General James D. “Buddy” Caldwell and the Office of the Attorney General, State of Louisiana
    Timothy S. Madden, John A. Cangelosi, New Orleans, Louisiana, Counsel for Defendant/Appellee, Attorney General James David Caldwell, Jr.
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

| ¡¿Martin E. Regan, Jr., filed the underlying suit for defamation, alleging that an assistant attorney general made false and defamatory statements about Regan to a newspaper. The defendants in the defamation action, the state’s attorney general, the office of the attorney general, and the assistant attorney general who made the statements, filed Special Motions to Strike as authorized by LSA-C.C.P. art. 971. The trial court granted the defendants’ motions and dismissed Regan’s claims. Regan has appealed. For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

The underlying facts, giving rise to this litigation relate to multiple criminal indictments issued to St. Bernard Parish President David Peralta. Plaintiff, Martin E. Regan, Jr., is one of Peralta’s attorneys.

On May 6, 2015, an East Baton Rouge Parish grand jury issued a six-count indictment against Mr. Peralta, charging him with three counts of perjury and three counts of filing false public records. This indictment was based on allegations that Mr. Peralta withdrew money from campaign donations and used the funds to gamble at various casinos. The East Baton Rouge Parish District Attorney’s Office requested the assistance of the Office of the Attorney General in its prosecution of Mr. Peralta, and Assistant Attorneys General David Caldwell, Jr., and Molly Lancaster were present at the May 6, 2015, indictment proceeding in Baton Rouge.

In a subsequent article published' by the New Orleans Advocate on May 21, 2015, the newspaper indicated that Mr. Peralta’s attorney, Regan, had sought to have Mr. Peralta’s charges dismissed, alleging that Mr. Peralta’s civil rights had been violated by the Attorney General’s office in prosecuting the case. Specifically, Regan indicated that Mr. Peralta had not been allowed to finish his testimony in the grand jury ^proceeding and that Mr. Peralta was denied certain pertinent documents during his grand jury testimony.

In his response to Regan’s allegations in the newspaper, Assistant Attorney General Caldwell told the paper that “Regan’s latest claims [were] ‘a complete waste of time.’” The article, based largely upon statements made by Caldwell, also provided:

Caldwell said Regan deliberately caused a scene outside the grand jury room, growing agitated and cursing loudly at him and' Assistant Attorney General ■ Molly Lancaster about the documents. Peralta contends the documents would explain' discrepancies on his campaign : spending1 reports, but- they were -seized—along with his computer—during a raid last summer by the Attorney General’s Office.
Regan “was threatening my female assistant, and then I came out to see what was going on, and he threatened me and he told me to step outside,” Caldwell -sáid.' “At that point, we have to shut it down. That was intentional on his part.” Caldwell said Regan was “dropping F-bombs” on Lancaster, likely close enough to the grand jury that its members could hear him, Regan “just blew his top,” he said.
“He was pretty hot,” Caldwell added. “I’m bigger than him, and I’m younger than him, but he was hot,. and if I had gotten close to him, he might’ve taken a swing at me.”

In his response published in the same article, Regan called Caldwell a “liar,” maintaining that he “didn’t lose his cool and certainly never swore-at anybody.”

On September 9, 2015, Regan filed a petition in the 19th Judicial District Court for the Parish of East Baton Rouge, naming Assistant Attorney General Caldwell, the state’s Attorney General,- and the state’s Office of the Attorney General, as defendants. Regan alleged that the statements made by Caldwell to the newspaper were not truthful, and he sought damages for defamation. In response, the defendants each filed a Special Motion to Strike under LSA-C.C.P. art. 971 and sought dismissal of Regan’s petition.

A hearing on the Special Motions to Strike was held on December 14, 2015. Following the hearing, the trial court orally granted the motions. On January 20, 2016, the trial court signed a judgment granting the motions to strike, dismissing Regan’s suit with prejudice at his cost, and awarding Assistant Attorney General Caldwell $3,000.00 pin attorney’s fees, and the state’s Attorney General and Office of the Attorney General $3,000.00 in attorney’s fees.

Regan has appealed, assigning the following as error:

1. The trial court committed legal and reversible error by failing to apply the proper legal standard and analysis necessary to support the granting of a special motion to strike filed pursuant to La. C.C.P. Art. 971.
2. The trial court committed legal and reversible error by finding, as a matter of law, that AAG Caldwell’s defamatory comments regarding Mr. Regan’s conduct during the Proceeding were protected under the United States and/or Louisiana Constitutions.
3. The trial court committed legal and reversible error by finding, as a matter of law, that Mr. Regan did not prove a substantial likelihood of success in prosecuting his claims.
4. The trial court committed legal and reversible error in finding that the AG Defendants were entitled to absolute or conditional privilege.

DISCUSSION

The special motion to strike is governed by LSA-C.C.P. art. 971, which provides, in pertinent part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs. .
⅜ ⅜ ⅜
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
|fi(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Article 971 was enacted by Acts 1999, No. 734, § 1. Section 2 of Acts 1999, No. 734 provides as follows:

The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.

The intent of Article 971 is to encourage continued participation in matters of public significance and to prevent this participation from being chilled through an abuse of judicial process. Lamz v. Wells, 05-1497 (La.App. 1 Cir. 6/9/06), 938 So.2d 792, 796. In Thinkstream, Inc. v. Rubin, 06-1595 (La.App. 1 Cir. 9/26/07), 971 So.2d 1092 writ denied, 07-2113 (La. 1/7/08), 973 So.2d 730, this court explains the shifting burdens of proof established by Article 971. The mover must first establish that the cause of action against him arises from an act by him in the exercise of his right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue. If the mover satisfies this initial burden of proof, the burden then shifts to the plaintiff to demonstrate a probability of success on the claim. Thinkstream, 971 So.2d at 1100.

The granting of a special motion to strike presents a question of law. Appellate review regarding questions of law is simply a review of whether the trial court was legally correct or legally incorrect. Thinkstream, 971 So.2d at 1100. On legal issues, the appellate court gives no special weight to the findings of the trial court, but1 ^exercises its constitutional duty to review questions of law and renders judgment on the record. Id. Because the granting of a Special Motion to Strike pursuant to LSA-C.C.P. art. 971 involves issues of law, appellate courts conduct a de novo review of the trial court’s application of the law. Aymond v. Dupree, 05-1248 (La.App. 3 Cir. 4/12/06), 928 So.2d 721, 726, writ denied, 06-1729 (La. 10/6/06), 938 So.2d 85.

On appeal, Regan contends that Article 971 does not apply because Assistant Attorney General Caldwell’s statements were not made in furtherance of his right to free speech in connection with a public issue. Regan concedes that the actions of his client, Mr. Peralta, certainly constitute a public issue because the public has an interest in knowing whether a Parish President’s conduct is proper. Regan, however, avers that Caldwell’s statements to the newspaper concern Regan’s conduct and character during a non-public grand jury proceeding and that Caldwell’s statements do not fall within the purview of Article 971. Regan contends that a contrary interpretation of the article to protect Caldwell’s statements regarding the conduct and character of counsel contravenes the Legislature’s intent.

Clearly, as recognized by Regan and the trial court, the proceedings against Mr. Peralta involved a public issue or an issue of public interest. Also, the statements made by the Assistant District Attorney to the newspaper involved purported actions in connection with the proceedings in which Regan was representing Mr. Peral-ta. As such, these statements were made “in connection with a public issue or an issue of public interest.” Given the legislative directive that the article is to be interpreted broadly, we find no error in the trial court’s determination that LSA-C.C.P. art. 971 applies.

Because the defendants met their initial burden of proof to establish that the cause of action against them arose from an act in the exercise of free speech in connection with a public issue, the burden shifted to Regan to demonstrate a probability of success on the claim. See Thinkstream, 971 So.2d at 1100-01.

A cause of action for defamation arises out of a violation of LSA-C.C. art. 2315. Defamation involves the invasion of a person’s interest in his or her reputation and good name. Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737 So.2d 706, 716. To maintain an action for defamation, plaintiffs have the burden of proving: (1) defamatory |7words; (2) unprivileged publication; (3) falsity; (4) actual or implied malice; and (6) resulting injury. Lamz, 938 So.2d at 797. If even one of these required elements is lacking, the cause of action fails. Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 140. See Thinkstream, 971 So.2d at 1101.

The defendants assert that after the burden shifted, Regan faded to show, among other things, that Assistant Attorney General Caldwell’s statements were false or made with malice. When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, the elements of falsity, malice (or fault) and injury. Costello, 864 So.2d at 140. Further, in cases involving statements about a public figure or a matter of public concern, the plaintiff must prove actual malice, that is, that the defendant either knew the statement was false or acted with reckless disregard for the truth. Romero v. Thomson Newspapers (Wisconsin), Inc., 94-1106 (La. 1/17/95), 648 So.2d 866, 869-70. Even so, we note that the elements of malice, falsity, and injury, are presumed if the court determines that a statement is defamatory per se. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La. 7/10/06), 935 So.2d 669, 675. Words are defamatory per se if they expressly or implicitly accuse another of criminal conduct, or by their very nature, tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances. Kennedy, 935 So.2d at 675 (citing Costello, 864 So.2d at 140). In other words, if they impute to a person a crime; or subject him to public ridicule, ignominy, or disgrace; or are susceptible of but one meaning, they are defamatory per se. Elmer v. Coplin, 485 So.2d 171, 176 (La.App. 2 Cir.) writ denied, 489 So.2d 246 (La. 1986). Words that are merely susceptible of a defamatory meaning, however, are not defamatory per se. Id.

Regan contends that the Assistant Attorney General’s statements made to the newspaper are defamatory per se such that malice, falsity, and injury are presumed. Specifically, Regan contends that the following statements, by their very nature, tend to damage his professional reputation as an attorney: Caldwell’s statements that Regan’s claims in defense of his client were “a complete waste of time,” that Regan threatened both Lancaster and Caldwell, that Regan was cursing and “dropping F-bombs,” and that IsCaldwell believed Regan, if he were close enough, “might’ve taken a swing at [him].” However, we note the threats referred to were limited to verbal threats.

Even though the statements made, if proven, may tend to diminish Regan’s professional reputation, they are not the type of words which would by their very nature tend to injure one’s professional reputation without considering extrinsic facts or surrounding circumstances. See Costello, 864 So.2d at 141. They are not words which in the current moral fabric of our modern society would by their very nature impute to Regan immoral, scandalous, or shocking conduct absent consideration of the surrounding events or the context in which they were made. As such, we cannot conclude that these statements rise to the level of defamation per se.

Thus, to demonstrate a likelihood of success on his claim, Regan must establish, among other things, that he can prove the allegations are false. No such admissible evidence appears in the record. We note that Regan made allegations in his petition that the statements were untruthful, but there is no affidavit or other admissible evidence in the record to support this allegation. Also, while both parties reference an affidavit apparently relied upon by Regan, such affidavit is not contained in the appellate record; nor is there any indication that it was offered and introduced into evidence. Moreover, argument of counsel and briefs, no matter how artful, are not evidence. See Wilson v. Davis, 07-1929 (La.App. 1 Cir. 5/28/08), 991 So.2d 1052, 1063, writs denied, 08-2011, 082020 (La. 11/10/08), 996 So.2d 1070, 996 So.2d 1071. Because Regan has failed to introduce evidence to show that he can establish the | ¡¡element of falsity, he has not sustained his burden to show a likelihood of success on his claim. Accordingly, we find no error in the trial court’s grant of the special motions to strike.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s January 20, 2016 judgment. Costs of this appeal are assessed to appellant, Martin E. Regan, Jr.

AFFIRMED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

|tI respectfully dissent from the majority’s opinion finding no error in the trial court’s granting of the special motions to strike. The statements made by Assistant Attorney General Caldwell, as set forth in the record, implicate “serious unprofessional conduct,” a “lac[k of] integrity,” and “tend to injure [Regan’s] professional reputation,” and as such, they are defamatory per se. See Costello v. Hardy, 03-1146, p. 15 (La. 1/21/04), 864 So.2d 129, 141. Therefore, because there is no dispute that these statements were published, Regan met his burden of demonstrating the likelihood of success of his claim, and the trial court erred in granting the special motion to strike.

      . According to the defendants, there were other indictments issued by grand juries on charges not relevant herein, two in St. Bernard Parish and one in St. Tammany Parish.

      . Louisiana Constitution article IV, section 8 provides that “[a]s necessary for the assertion or protection of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding; (2) upon the written request of a district attorney, to advise and assist in the prosecution of a criminal case; and (3) for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any crimi-nál action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action.”

      . The defendants aver that Regan initially filed his petition with the Orleans Parish Civil District Court, and the matter was later transferred to the Parish of East Baton Rouge,

      . In Costello, 864 So.2d at 142, the Louisiana Supreme Court, in concluding that the allegations made against an attorney were not defamatory per se, stated that the allegations did not accuse the attorney "of serious unprofessional conduct or extreme departure from professional ethics.” However, the Louisiana Supreme Court did not indicate that such allegations would necessarily rise to the level of defamatory per se, and the statement was not essential to the court’s holding. In cases where statements were found to rise to the level of defamation per se, the allegations encompassed more than allegations of unprofessional conduct. For instance, in Brown v. Times-Picayune, L.L.C., 14-0160 (La.App. 1 Cir. 11/3/14), 167 So.3d 665, 669 and n.6, this court indicated that a newspaper headline accusing an attorney of ‘‘desertfing)” his client "could be construed as being defamatory per se since by its very nature it tends to damage plaintiff’s professional reputation, even without considering extrinsic facts or surrounding circumstances” because it "strikes at the very heart of [the attorney's] ethical duties and obligations to his client.”) In the case before us, none of the allegations could be construed as accusing Regan of an extreme departure from professional ethics.

      . Regan attached the results of a polygraph test to his petition. However, the defendants objected to the admission of the results of the polygraph test at the motion to strike hearing, and they were properly excluded by the trial court. See Cook v. State, Dept. of Public Safety and Corrections, Office of State Police, 05-0475 (La.App. 1 Cir. 2/10/06), 928 So.2d 589, 592 (“The exclusion of polygraph evidence in civil trials has consistently been upheld in both state and federal jurisdictions, and we find no authority to allow this evidence to be admitted.”)


author: CALLOWAY, J.

text:
    Evette NEAL v. Justin WASCOM, Jr., Clean Water Opportunities, Inc., and Hallmark Specialty Insurance Company
    2016 CA 1230
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 12, 2017
    Rehearing Denied May 1, 2017

      James M. Dill, Lafayette, Louisiana, Attorney for Appellants, Defendants—Justin Wascom, Jr. and Hallmark Specialty Insurance Company
    Mark D. Plaisance, Thibodaux, Louisiana, Attorney for Appellee, Plaintiff—Ev-ette Neal
    BEFORE: PETTIGREW, McDonald, and calloway, jj.

      . Hon. Curtis A, Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CALLOWAY, J.

|2In this personal injury case, the defendants challenge the general damages awarded by the trial court to the plaintiff following a bench trial.

FACTS AND PROCEDURAL HISTORY

This case involves a traffic accident that occurred on December 9, 2013, when the Ford F-250, operated by the defendant, Justin Wascom, Jr., owned by his employer, Clean Water Opportunities, Inc, (“Clean Water”), and insured by Hallmark Specialty Insurance Company (“Hallmark Insurance”), rear-ended the Jeep Liberty owned and operated by the plaintiff, Ev-ette Neal. Mr. Wascom was driving the Ford F-250 eastbound on Interstate 12 in Livingston Parish when he rear-ended Ms. Neal’s Jeep, causing her vehicle to hit the side concrete wall, leave the roadway, flip over, hit a tree, and come to rest in a canal.

Ms. Neal filed the instant suit against Mr. Wascom, Clean Water, and Hallmark Insurance, seeking damages for injuries to her neck, back, head, shoulders, legs, chest, sternoclavicular (“SC”) joint, collarbone, hands, and fingers allegedly sustained as a result of the automobile accident. A bench trial was conducted on March 15, 2016, on the issue of damages. At trial, the parties stipulated to liability and insurance coverage, that Ms. Neal’s medical expenses totaled $27,834.00, and that her lost wages totaled $4,576.00. Following trial, the trial court signed a final judgment on April 1, 2016, in favor of Ms. Neal and against Mr. Wascom and Hallmark Insurance in solido, awarding Ms. Neal: $700,000.00 in general damages; $27,800.34 in past medical expenses; $21,000.00 in future medicals for SC injections; $5,600.00 in future medicals for acromioclavicular (“AC”) injections; $426.79 for certified medical records and bills; $4,576.00 in lost wages; legal interest from the date of judicial demand until paid; all Rcosts of the proceedings; a $5,000.00 expert witness fee; and dismissed all of Ms. Neal’s claims against Clean Water, with prejudice.

Mr. Wascom and Hallmark Insurance now appeal, assigning error to the amount of general damages awarded to the plaintiff.

LAW AND DISCUSSION

The defendants argue the trial court abused its discretion in awarding Ms. Neal $700,000.00 for a partially dislocated SC joint, a strained shoulder, a strained neck, and a strained back. The defendants assert the accident merely aggravated Ms. Neal’s preexisting neck and shoulder injuries, that she only missed one month of work, and that she now has full range of motion in her shoulder and arm.

“General damages” involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La. App. 1 Cir.), writs denied, 605 So.2d 1373, 1374 (La. 1992). The primary objective of general damages is to restore the party in as near a fashion as possible to the state he was in at the time immediately preceding injury. Daigle v. U.S. Fidelity and Guar. Ins. Co., 94-0304 (La.App. 1 Cir. 5/5/95), 655 So.2d 431, 437.

Vast discretion is accorded the trier of fact in fixing general damage awards. La. C.C. art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377 (La.App. 1 Cir. 11/8/96), 685 So.2d 163, 172, writ denied, 97-0493 (La. 4/4/97), 692 So.2d 421. The discretion vested in the trier of fact is “great,” even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award but, rather, to review the exercise of discretion by the trier of fact. Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So.2d 70, 74. Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the trier of fact abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La. 1993). Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn, 623 So.2d at 1261. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Youn, 623 S.o.2d at 1261.

The nature, relative severity, and bodily extent of injuries are qualitative factors that must first be considered by the trier of fact in awarding general damages. The duration of a plaintiffs injury symptoms and the duration of treatment are relevant quantitative factors that must also be taken into account. See Gillmer v. Parish Sterling Stuckey, 2009-0901 (La. App. 1 Cir. 12/23/09), 30 So.3d 782, 788; Thibodeaux v. USAA Cas. Ins. Co., 93-2238 (La.App. 1 Cir. 11/10/94), 647 So.2d 351, 3571 Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate or excessive. See Theriot, 625 So.2d at 1340. And, it is only after such a threshold determination of an abuse of discretion is made that the appellate court should examine prior awards for similar injuries to modify, the award within the range of reasonable discretion. See Reck v. Stevens, 373 So.2d 498, 500-01 (La. 1979); Coco v. Winston Indus., Inc., 341 So.2d 332, 335-36 (La. 1976).

The record establishes that Ms. Neal was forty-seven years old at the time of the accident. Ms. Neal had been involved in one motor vehicle accident prior to the December 2013 accident, which occurred on March 2, 2005, in which she suffered injuries to her neck; however, she made no Claims for bodily injury or property damage as a result of that accident.

Ms. Neal’s medical records were introduced at trial. Prior to the December 9, 2013 accident, Ms. Neal treated with Lallie Kemp Regional Medical Center. Following the accident at issue herein, Ms. Neal treated with Our Lady of the Lake Regional Medical Center in Baton Rouge, Louisiana, the Baton Rouge Clinic, Dr. F. Allen Johnston at the Louisiana Ortho-paedic and Spine Institute, and Advanced Therapy Solutions.

Immediately following the accident, Ms. Neal was transported by ambulance to the emergency room at Our Lady of the Lake Regional Medical Center. The notes from the emergency room indicate that Ms. Neal presented with left shoulder pain, a laceration to her left scalp, blunt trauma to her left shoulder, and moderate bleeding. The emergency room physician diagnosed Ms. Neal with a head, injury, scalp laceration, head contusion, and contusion of the left shoulder. Ms. Neal received five staples in her scalp to close the wound. The physician instructed Ms. Neal to schedule a follow up visit with the clinic in two to three days but immediately to return to the emergency room if her symptoms worsened.

Dr. Johnston, the plaintiff, and her mother, Ms. Cook, testified at trial. Dr. Johnston testified that he first saw Ms. Neal on January 7, 2014, one month after the accident, and that she complained of ongoing pain' in her left-upper quadrant, specifically her shoulder and neck. Dr. Johnston testified that as a result of the accident, Ms. Neal had a tender and enlarged SC joint, which is the point where the sternum, or- breastbone, meets the clavicle, or collarbone. Dr.-Johnston’s testimony and notes indicate that Ms. Neal had restricted range of motion in her shoulder, which rendered her unable to fully lift her arm, and that most significantly, she suffered pain due to a subluxation of the left SC joint, ie., a partial dislocation of the SC joint. He also noted Ms. Neal had a strained neck and lower back. After reviewing X-rays of Ms. Neal’s neck, shoulder, and collarbone, Dr. Johnston prescribed a treatment of physical therapy and medication and advised her to modify her activity and working conditions to prevent aggravation of her injuries.

On March 13, 2014, at Ms. Neal’s second visit with Dr. Johnston, he observed that she had swelling around the SC joint, but that it was less severe than her first visit with him one month after the accident. Dr. Johnston testified that he gave Ms. Neal an | fiepidural steroid injection (“ESI”) in her shoulder, specifically her AC joint, in an attempt to determine if her pain was isolated in her shoulder or in her SC joint.

On Ms. Neal’s third visit on June 2, 2014, Dr. Johnston noted that the ESI in her shoulder did not alleviate her pain, so he ordered an MRI of her neck and SC joint. The MRI of Ms. Neal’s neck was done oh June 17, 2014. Dr. Johnston testified the results of the neck MRI showed mild desiccation, or drying out of the C-5 and C-6 intervertebral discs, which is not unexpected for a person in her mid-to-late forties. The MRI of Ms. Neal’s SC joint was done on June 27, 2014; the results indicated-that Ms. Neal had fluid in the SC joint, which Dr. Johnston classified as a “healing injury.”

Dr. Johnston testified:

I think she’s got a painful [SC joint], and I’m hoping that with time her symptoms will improve, you know. I don’t know— there’s a percentage of people that you can say are going to get better over time. There is—some will. The joint will stay out of place, but maybe they don’t use their arm as much. For whatever reason, it becomes less symptomatic. But a significant portion of people, probably greater than 50%, once it’s dislocated, they’re going to have some symptoms with it.

Following Ms. Neal’s fourth visit on July 1, 2014, Dr. Johnston suggested that Ms. Neal receive ESIs in her AC joint and that she continue to modify her activity in order to alleviate her pain. After a fifth visit on July 29, 2014, Dr. Johnston scheduled Ms. Neal for an SC injection on August 11, 2014. In a follow-up visit on August 28, 2014, Dr. Johnston noted that the SC injection was successful as Ms. Neal experienced pain relief. Dr. Johnston stated he saw Ms. Neal again on October 9, 2014, at which time he noted that while she was still experiencing pain relief as a result of the SC injection, she would still have occasional flare ups of pain whenever she pushed or applied pressure to the SC area. He testified that Ms. Neal continued to have range of motion issues with her shoulder and had developed a mass, or bump, over her SC joint.

Dr. Johnston testified he saw Ms. Neal on June 4, 2015, and she complained of neck discomfort and pain in her SC joint. Dr. Johnston testified that by that time, the effects of the SC injection had begun to wear off. He noted that she had weakness and tenderness in her shoulder and that its range of motion was “not what it should be.” After |7a second MRI of her shoulder was performed on June 15, 2015, Dr. Johnston testified that the results showed fluid and inflammation in her shoulder and AC joint, which he concluded meant she had an “actual problem inside-her shoulder,” and not just referred or radiating pain from the neck, which had been his initial hunch following the March 2014 visit. Dr. Johnston testified that the injuries to Ms. Neal’s shoulder, which includes the glenohumeral joint, the AC joint, and the SC joint, were all “problematic” and were “all contributing to each other.” Ms. Neal saw Dr. Johnston again on July 2 and September 1, 2015, when she received another AC injection. On her last visit prior to trial, January 7, 2016, Dr. Johnston stated that Ms. Neal continued to experience neck, shoulder, and right upper back pain. Dr. Johnston testified that her back pain likely developed as a result of her overcompensating for the injuries to the left side of her body.

Dr. Johnston testified that as a result of the accident, Ms. Neal’s left-upper quadrant injuries—comprised of injuries to her neck, shoulder, and SC joint—contributed to the bulk of her pain. He testified that her partially dislocated SC joint and her shoulder injury were the major injuries causing her symptoms and pain; and, that although some of her neck pain was due to age-related arthritis, the accident of the type experienced by her on December 9, 2013, when her vehicle rolled over, is “not forgiving,” and also contributed to the left-upper quadrant pain.

Dr. Johnston testified that due to the partially dislocated SC joint Ms. Neal suffered as a result of the accident, she will experience pain any time she lifts her left arm above ninety degrees, that is, “above chest height,” or above “chest—breast level.” Although not impossible for her to fully lift her arm, Dr. Johnston testified that it would be inadvisable for her to do so, and that she would naturally self-limit to prevent pain. The restrictions to her activities Dr. Johnston prescribed as a part of her treatment included prohibitions from lifting her arm, climbing, lifting more than twenty pounds, and working at unprotected heights, as well as any activity when her left arm becomes a weight-bearing joint, such as getting on the floor playing with children, doing push-ups, or other such exercises. Dr. Johnston confirmed at trial that Ms. Neal’s SC joint would never be back to normal, that she is at maximum medical improvement, and that Ms. | «Neal will live with the injury and pain for the rest of her life. He stated that he would see Ms. Neal three or four times a year for the rest of her life to monitor her injuries, perform AC and SC joint injections, and ensure she is able to tolerate her medications.

Ms. Neal testified that as a result of the December 9, 2013 accident, she suffers from headaches, pain in her left side, back pain, has trouble sleeping due to head and neck pain, and is unable the fully lift her left arm, which restricts her ability to perform tasks with the left side of her body such as lifting or reaching for objects, playing sports, restocking shelves, and other job-required activities, brushing her hair, picking up her grandchild, or dressing herself without pain. Ms. Neal also testified and showed the court a permanent knot she has on her left shoulder over the AC and SC joints. Ms. Neal and her mother testified that following the accident, Ms. Cook cared for her daughter for approximately four weeks because Ms. Neal was unable to do anything for herself, including dress, eat, bathe, or use the bathroom unaided.

At the end of the bench trial, the trial court gave oral reasons for its ruling:

The motor vehicle accident defendant, Mr. Wascom, was at fault in the car accident insured by the insurance Company which was stipulated to and the parties stipulated to the liability and coverage on Mr. Wascom. The witness, Dr. Johnston, to whom the parties stipulated his expertise in orthopaedics, saw the plaintiff numerous times [... ] [Dr. Johnston] testified about the ongoing— the diagnosis, the prognosis, and the ongoing meds, injections, and visits that the plaintiff would have—yes [...] The expert opinion is that plaintiff sustained injury to her SC joint, left shoulder, AC joint because of the motor vehicle accident December 9, 2013. Her neck was more stiff because of age and the motor vehicle accident as a result of a blow to the head. This is a permanent injury. He found no preexisting shoulder problems or—and this was a left upper quadrant injury. He’s testified the plaintiff should avoid lifting, getting up from the ground, putting any kind of weight on the left upper quadrant, left shoulder. The plaintiffs options for treatment on the SC joint dislocation would be surgery within the first three weeks. That’s very rarely done, dangerous, risky to the patient, and it causes severe pain and severe scarring to the patient. That was not able to be done. The plaintiff didn’t see the doctor within those three weeks[,] but it’s unlikely he would have advised that anyway. The prognosis is the SC joint of the plaintiff will never be normal, or back in place. Her range of motion will always be painful, and plaintiff is at maximum medical improvement. The plaintiff will be on meds from now on, both prescription meds and over-the-counter meds. Future surgery is possible and the plaintiffs |3neck will continue to age and be problematic. The witness testified the plaintiff can tolerate her injuries if she is careful about how she moves and continues with the pain medication program she is on. The witness testified the plaintiffs range of motion on the left side is below one hundred eighty degrees because of the pain it will cause. He said—practically, I think he said she could go on to the one hundred and eighty degrees, but it’s inadvisable for the plaintiff to go to the hundred and eighty degrees. Below ninety degrees would be the ideal range of motion the plaintiff could—should do with this injury. The witness also expected pain for the plaintiff at eighty degrees on the left shoulder. Future treatments he testified about, medical, medications, injections, liver/kidney function studies, lab tests, witness will see three to four times a year for the rest of the plaintiffs life. Witness will—Dr. Johnston will see plaintiff for the injury two to four times a year for the rest of her life. Maybe more injections, and he testified about the ongoing SC joint injections, AC joint injection, shoulder injections, and possibly a facet injection which is very expensive. But that’s—that was a possibility. He didn’t deal in probabilities with that, so I didn’t figure that in the future medical. Also, the plaintiff herself testified about her ongoing pain. Said the pain is horrible in her shoulder. The reason she hasn’t consistently had the shots was after the shots[,] the pain is horrible for four or five days, and after that, she would get somewhat tolerable relief from the pain. She cannot play basketball anymore. She cannot lift her grandchild. She cannot do normal dressing and undressing without pain or without help. She cannot do housework— normal housework she used to do without help or without pain. Her work— she’s testified she works through the pain or she has assistants. Since she is a Supervisor at Wal-mart, she can ask for help to do some of her job activities. So for all these reasons—and her mother testified about, you know, she couldn’t hardly lift her arms over her head at that point. After the accident, she couldn’t do anything for herself. There was ongoing problems, and there are still ongoing Problems that the mother sees her two to three times a week and still sees. Also, Ms. Neal mentioned about the dressing. She has had to change her mode of what she wears. She cannot wear pullover shirts because she cannot lift her arms over her head. Likely never will be for the rest of her life, so she has to have button on—button up shirts, and so on. Grooming, brushing her hair, simple things like that she has to ask for help because of the pain issue with that left arm being lifted above the head. She’s unable to do so, or unable to do so without pain. So, for all those reasons, I find for the plaintiff in these amounts.

Based on our review of the record, we cannot say the trial court manifestly erred in accepting and relying on the evidence entered into the record at trial and the trial testimony of Ms. Neal, Ms. Cook, and the expert medical testimony of Dr. Johnston. See Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201 (La. 10/19/99), 748 So.2d 417, 421, 425.

The trial court awarded Ms. Neal $700,000.00 in general damages. The trial court’s oral reasons demonstrate the court considered the nature, relative severity, and bodily extent of Ms. Neal’s injuries, as well as the continuing duration of her symptoms and treatment. Based on our review of the record, we cannot say the trial court’s award for general damages represents an abuse of its vast discretion.

DECREE

Based on the foregoing, we affirm the April 1, 2016 judgment of the trial court. All costs of this appeal are assessed to the defendants, Justin Wascom, Jr. and Hallmark Specialty Insurance Company.

AFFIRMED.

McDONALD, j., dissents

      . At trial, the parties did not stipulate that Mr. Wascom was in the course and scope of his employment with Clean Water at the time the accident occurred.

      .Hallmark Insurance insured the Ford F-250 owned by Clean Water. The insurance policy, LAA801078, had liability limits of $1,000,000.00 per accident.

      . A week prior to trial, the trial court granted partial summary judgment in favor of the defendants as to Ms. Neal’s claims for punitive/exemplary damages. See La. C.C.P. arts. 1915(A)(1), (A)(3), 1915(B), and 966(E).

      . The AC joint is at the top of the shoulder where the shoulder meets the clavicle.

      . The parties stipulated to Dr. Johnston’s expertise in orthopedics.

      . Dr. Johnston prescribed Mobic, an anti-inflammatory; Ultram, for pain; and Flexeril, a muscle relaxer.


author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. ACADIAN PROPERTIES NORTHSHORE, L.L.C.
    NO. 2016 CA 1108
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 12, 2017

      Robert S. Reich, Marva J. Wyatt, Daniel E. Levy, Metairie, LA, Attorneys for Defendant-Appellant, Acadian Properties Northshore, L.L.C.
    James L. Bradford, III, Patrick E. Moore, D. Stephen Brouillette, Jr., Coving-ton, LA, Jonathan C. Augustine, Baton Rouge, LA, Attorneys for Plaintiff-Appel-lee, State of Louisiana, Department of Transportation & Development
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

lain this expropriation case, the property owner, Acadian Properties Northshore, L.L.C. (“Acadian Properties”), appeals the amount of just compensation awarded by a jury.

BACKGROUND

The vacant, relatively undeveloped property at issue is located in St. Tammany Parish, Louisiana, fronting Louisiana State Highway 21 (“Hwy 21”). Prior to the expropriation of .932 acres by the State of Louisiana, Department of Transportation and Development (“DOTD”), the tract measured a total of 8.138 acres. Acadian Properties acquired the property in 2007 at a cost of $10.50 per square foot, at a total cost of just under $4,000,000.00, with the intention of eventually developing a commercial shopping center at the location. Over the next several years, Acadian Properties obtained some parish permits for site preparation work such as excavating/clearing parts of the property, placing of driveways, and for filling and/or raising the grade of the property to match the level of Hwy 21. Construction of driveways, parking lots, or buildings never commenced, but some of the land was actually cleared and filled before the expropriation. Acadian Properties estimated that it spent approximately $700,000.00 in site preparation for the entire 8.138 acres.

On June 12, 2013, DOTD filed a petition seeking to expropriate full ownership of a .932 acre portion of Acadian Properties’ larger tract for highway widening purposes. The expropriated portion fronted Hwy 21 and was designated as Parcel 7-1. DOTD acquired title to Parcel 7-1 on June 14, 2013, when it deposited $469,118.00 (the estimated just compensation due Aca-dian Properties for the property taken) into the registry of the 22nd Judicial District Court, pursuant to Louisiana’s “quick-taking” procedure set forth in La. R.S. 48:441-60. The district court signed an order allowing Acadian Properties to subsequently withdraw the ladeposit from the registry, without prejudice to Acadian Properties’ right to contest the issue of the amount of just compensation.

Acadian Properties filed an answer and reconventional demand in response to DOTD’s petition, seeking additional just compensation for the value of its land that had been taken by DOTD. Acadian Properties also sought severance and economic damages for lost income connected with the future development of a shopping center on the entire tract of land. DOTD filed a motion for summary judgment, alleging that Acadian Properties’ claim for future lost income related to a shopping center that had not been constructed was highly speculative and not supported by the evidence. The district court agreed with DQTD and granted a partial summary judgment in favor of DOTD on the issue of economic damages connected with lost income from the future development of the shopping.center.

Prior to the jury trial in this matter, DOTD filed numerous motions in limine seeking to exclude or limit certain testimony and evidence, including evidence concerning DOTD’s acquisition of neighboring properties for the Hwy 21 widening project; testimony from witnesses, including expert .witnesses, not previously identified; and expert opinion testimony pertaining to opinions outside of the “four corners” of the. experts’written reports. After a jury trial,-,,on. November 5-6, 2015, .Acadian Properties was awarded an additional amount of $99,130.80 for just compensation on Parcel 7-1 that was in excess of the previously deposited amount, plus attorney fees and costs. A final judgment was signed accordingly on April 6, 2016. Acadi-an Properties appealed, maintaining that the judgment failed to- award the “full extent” of its loss, including severance damages, that the district court erred in granting DOTD’s motion for partial summary judgment, thereby effectively excluding all evidence of economic loss from the future development of a shopping center, and that the district court erred in numerous evidentiary rulings.

JjTHE LAW ON EXPROPRIATION

The law concerning the compensation due-a landowner whose property has been expropriated is well settled. Louisiana Constitution Article I, Section 4(B), provides in pertinent part:

(1) Property shall not be taken or damaged by the state ... except for public purposes and with just compensation paid to the owner or into court for his benefit.
(5) In every expropriation ... a party has the right to trial by jury to determine whether the compensation is just, and the owner shall be compensated to the full extent of his loss. Except as otherwise provided in this Constitution, the full extent" of loss shall include, but not be limited to, the appraised value of the property and all costs of relocation, inconvenience, and any other damages actually incurred by the owner because of the expropriation. [Emphasis added.]

Additionally, La. R.S. 48:453 provides, in pertinent part:

A. The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken.
B. The measure of damages, if any, to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.
C. The owner shall be compensated to the full extent of his loss. [Emphasis added.]

A landowner whose property is expropriated by the state is compensated so that he remains in an equivalent financial position to that which he enjoyed before the taking. State, Dept. of Transportation and Development v. Restructure Partners, L.L.C., 2007-1745 (La. App. 1 Cir. 3/26/08), 985 So.2d 212, 220, writ denied, 2008-1269 (La. 9/19/08), 992 So.2d 937. The burden-of proof on the property owner in an expropriation case is to establish his claims by a reasonable preponderance of the evidence; speculation, conjecture, mere possibility, and even unsupported probability are not sufficient to. support a judgment. Id.. So, where.the property owner challenges the amount that DOTD deposits as just .compensation for Ran expropriation, a greater value must be. proven by a preponderance of the evidence. ML The question of what damages will appropriately compensate the property owner is one of fact. Such a determination is necessarily dependent on evidence presented by expert witnesses; however, the factfinder is not obligated to accept an expert’s opinion in expropriation cases, since those opinions are not binding and are merely advisory in nature. Id.

In an expropriation proceeding, a factfinder’s factual determinations as to the value of the property and entitlement to other types of damages are subject to the manifest error standard of review, while the amount of damages awarded is subject to the abuse of discretion standard of review. Restructure Partners, 985 So.2d at 221. The factfinder is not required to accept or reject the testimony of any particular witness, but may give whatever weight it considers appropriate to the testimony of any and all witnesses in making its factual determination of the value of the property taken. The factfinder may reach a conclusion that does not coincide with the testimony of any witness. Id. Additionally, we note that the. district court is vested with a broad range of discretion when ruling on the admissibility of evidence. Evidentiary rulings shall not be disturbed on appeal absent a clear abuse of discretion. Id.

, DISCUSSION

As previously noted, La. R.S. 48:453 provides that the measure of compensation for property expropriated is determined as of the date of the taking. The date of the taking in this case was June 14, 2013. As of that date, the entire tract of Acadian Properties’ land, including Parcel 7-1, was vacant and relatively undeveloped. Acadian Properties had cleared some of the trees off of the property and had provided fill dirt .to .raise the grade of the property to a height that was even with Hwy 21, but there were no structures or other improvements on the property. Additionally, there was absolutely no evidence of any economic loss connected to |fian actual shopping center development at.the time immediately before or after the taking. Further, at the date of the taking, Acadian Properties was not receiving any rental income from possible tenants of a future ' commercial development. Given these facts and our review of Acadian Properties’ proffered evidence, we find that the district court' did not abuse its discretion in excluding evidence of the speculative economic damages that was supposedly connected to lost profits from the possibility of the future development of a shopping center.

The jury was presented with extensive -testimony from two expert real estate appraisers, Andrew Marshall for Acadian Properties and Russ Shuffield for DOTD. Both experts used the market approach, which is the most reliable method for vacant land' and depends on sales of comparable properties to arrive at the value of the property taken. See State, Dept. of Transportation & Development v. Estate of Bickham, 93-1664 (La. App. 1st Cir. 6/24/94), 640 So.2d 841, 842. After listening to the experts, the jury determined that Acadian Properties was enti-tied to $99,130.80 more than was originally tendered by DOTD, for a total just compensation award of $568,248.80 (approximately $14.00 per square foot) for Parcel 7-1. The jury’s award was more than DOTD’s expert’s valuation of the property at $446,151.00 (or $11.00 per square foot), but less than the value estimated by Acadi-an Properties’ expert at $690,000.00 (or $17.00 per square foot), which took into consideration the cost of Clearing the land and filling the grade of the property. Much discretion is afforded the jury in valuing property in expropriation cases, and the evaluation of and weight given to the experts’ testimony will not be disturbed on review in the absence of manifest error. Id. The jury’s determination was reasonable in light of the evidence in the record, allowing for the value of Acadian Properties’ work of Clearing and filling the grade of the property before it was expropriated. We find no manifest error in that determination. Likewise, we have reviewed Acadi-an Properties’ proffered evidence concerning the amount paid |7by DOTD for an adjoining expropriated property (at $18.00 per square foot), and we find no abuse of discretion in the district court’s evidentiary rulings regarding the valuation of the expropriated property. The jury heard from Acadian Properties’ expert appraiser that comparable property sales ranged from $14.45 per square foot on the low end, to $22.50 per square foot on the high end. Thus, there is no apparent prejudice or abuse of discretion in the district court’s evidentiary ruling, since the jury was presented with valuation testimony that encompassed the value that was proffered by Acadian Properties.

Acadian Properties also contends that they are entitled to severance damages and that the district court erred in excluding all evidence of severance damages, including an estimated $2,700,000.00 cost-to-cure the loss of potential parking spaces for the future development of the shopping center. Severance damages describe those compensable damages that flow from the partial expropriation of a tract of land, i.e., the difference between the value of the remaining property immediately before and immediately after the taking. Restructure Partners, 985 So.2d at 221. Severance damages are not presumed; the landowner has the burden of proving severance damages with legal certainty by a preponderance of the evidence. State, Dept. of Highways v. Denham Springs Development Co., Inc., 307 So.2d 304, 307 (La. 1975).

The issue as to whether property remaining after an expropriation has sustained severance damage is essentially a question of fact. State, Dept. of Transportation and Development v. Chaisson, 477 So.2d 115, 117 (La. App. 1st Cir. 1985). In this case, the district court partially decided the matter on a motion for summary judgment before the trial based on a lack of evidence. The district court agreed with DOTD that Acadian Properties’ claimed economic damages concerning future lost income was too speculative, because there was no evidence of market rental rates for the proposed shopping center and there was no evidence of ^construction costs, operating costs, or vacancy projections connected with the proposed shopping center. Our de novo review of the summary judgment reveals no error in the district court’s ruling.

All experts and witnesses agreed that the highest and best use of Acadian Properties’ land was commercial. The record is devoid of evidence that the remaining property owned by Acadian Properties could no longer be used for a commercial purpose after Parcel 7-1 was expropriated. Just as it did before the taking, Acadian Properties still owned a large vacant tract of land that fronted Hwy 21 after the taking. Acadian Properties simply failed to show that the remaining property could no longer be used in a profitable commercial fashion after the taking and, therefore, Acadian Properties’ economic • damage claim connected to only one possible development idea (including a certain number of parking spaces) was highly speculative. Thus, the district court did not abuse its discretion in limiting the evidence to the actual use, rather than speculative use, of the property before and after the taking. Further, Acadian Properties did not show that it had suffered any particular pecuniary, financial, or economic loss or damage as a result of the expropriation, because there was no showing that there was in fact a commercial shopping center being developed on the property at any time before or immediately after the taking. Likewise, there was no showing that the property was in need of restoration immediately after the taking. The remaining property was exactly the same as it was before the taking.

We conclude, as did the jury, that Acadian Properties’ remaining tract of land had the same utility after the expropriation as it had before, and it was still a desirable piece of commercial property that could be developed into a shopping center in the [ 9future if Acadian Properties chooses to do so. There is no manifest error in that factual conclusion. We further find no error or clear abuse of discretion in the district court’s limitation of the evidence concerning the highly speculative cost-to-cure or need to correct the potential loss of parking spaces caused by the expropriation if a shopping center was eventually developed in the future. Acadi-an Properties simply did not prove its entitlement to severance damages.

After considering the evidence presented showing that the highest and best use of the subject property was as a commercial site, the jury awarded an additional amount to fully compensate Acadian Properties for the expropriated Parcel 7-1. That additional amount was based on comparable property sales and took into consideration the fact that Acadian Properties had begun preparing the property (by Clearing trees, adding fill dirt, and applying for permits) for the future commercial development of a shopping center that fronted Hwy 21, which could still be developed after the taking. Therefore, we find nothing in the record that suggests that the jury manifestly erred in its valuation of the expropriated property.

CONCLUSION

For the outlined reasons, the district court’s judgment rendered in accordance with the jury’s verdict is affirmed. Costs of this appeal are assessed against Acadian Properties Northshore, L.L.C.

AFFIRMED.

Theriot, J., Concurs

      . On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sunrise Const. and Development Corp. v. Coast Waterworks, Inc., 2000-0303 (La.App. 1 Cir. 6/22/01), 806 So.2d 1, 3, writ denied, 2001-2577 (La. 1/11/02), 807 So.2d 235.