text:
    STATE of Louisiana v. Orlando YOUNG
    No. 2016-KP-1388
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| iDenied. Relator fails to show he was denied access to the .courts by an arbitrary and unjustified enforcement of the uniform rules governing the filing of applications'in the court of appeal, and thus shows no error.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions • the filing of a second or successive application only under the' narrow circumstances provided in La.C.Cr.P. art;' 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8, Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent -with this per curiam.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    STATE EX REL. Charles Wayne SNEED v. STATE of Louisiana
    No. 2016-KH-1339
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE SECOND JUDICIAL DISTRICT COURT, PARISH OF BIENVILLE

PER CURIAM

I! Denied. With the enactment of 2017 La. Acts, No. 280, § 3, including R.S. 16:574.4(H), relator’s eligibility for parole consideration is no longer dependent upon a commutation of his sentence to a fixed term of years, but will instead be governed by the criteria set forth in R.S. 15:674,4(H). As such, his claims are moot, and intervention is not warranted.


text:
    STATE EX REL. Martavia D. KING v. STATE of Louisiana
    No. 2016-KH-1327
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE FORTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF DE-SOTO

PER CURIAM

| denied. Relator’s guilty plea waived all non-jurisdictional defects in the proceedings leading to his conviction.- State v. Crosby, 338 So.2d 584, 586 (La. 1976). Relator also fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claim, relator fails to satisfy his post-conviction burden of proof. La,C.Cr.P, art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions" the filing of a second or successive- application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitation period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive ^application applies, relator has exhausted his right to state collateral review. .The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: Ali Zito SHIELDS
    NO. 2017-OB-1916
    Supreme Court of Louisiana.
    01/09/2018
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM

| t This proceeding arises out of an application for reinstatement filed by petitioner, Ali Zito Shields, an attorney currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Petitioner instructed, a client to sign pe-. titioner’s name on the attorney and notary lines of pleadings to be filed with a court, failed to return a client’s file, failed to provide two clients with accountings, failed to refund unearned fees to two clients, and failed to cooperate with the Office of Disciplinary Counsel (“ODC”) in an investigation. For this misconduct, we suspended petitioner from the practice of law for one year and one day and ordered her to “refund in full the legal fees paid by” the two clients. In re: Shields, 14-2473 (La. 2/27/15), 161 So.3d 614.

Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging she has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). Included with petitioner’s application were documents indicating that she refunded in full the legal fees paid by the two clients who were the subjects of her disciplinary proceeding. The ODC filed a notice concurring in petitioner’s reinstatement. Accordingly, the matter was referred to the disciplinary board’s adjudicative committee chair, who approved petitioner’s petition for reinstatement and recommended the petition be granted.

IgAfter considering .the record in its entirety, we will adopt the adjudicative committee chair’s recommendation and reinstate petitioner to the practice of law.

DECREE

Upon review of the recommendation of the disciplinary board’s adjudicative committee chair, and considering the record, it is ordered that Ali Zito Shields, Louisiana Bar Roll number 25247, be immediately reinstated to the practice of law in Louisiana. All costs of these proceedings are assessed against petitioner.


text:
    IN RE: Joshua Paul MELDER
    NO. 2017-B-1922
    Supreme Court of Louisiana.
    1/9/2018
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

|]In November 2016, respondent was arrested and booked with domestic abuse battery and resisting an officer. Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Joshua Paul Melder, Louisiana Bar Roll number 33983, be suspended from the practice of law for a period of one year and one day. It is further ordered that all but six months of the suspension shall be deferred, subject to respondent’s successful completion of a five-year period of probation to coincide with his Judges and Lawyers Assistance Program recovery agreement. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds, for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that 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.

JOHNSON, C.J., would reject consent discipline.


author: Hughes, J.,

text:
    STATE EX REL. Donald M. BOSWELL v. STATE of Louisiana
    2017-CP-1133
    Supreme Court of Louisiana.
    01/09/2018
   ON RECONSIDERATION OF THIS COURT’S ACTION DATED OCTOBER 2, 2017

Hughes, J.,

additionally concurring.

| t Relator’s situation is unfortunately governed by the case of State v. Crandell, 05-1060 (La. 3/10/06), 924 So.2d 122, wherein it was held that:

In the instant case, the court of appeal denied defendant’s writ application and mailed the notice of judgment on February 23,2005. Uniform Rule of the Courts of Appeal (“URCA”), Rule 4-9, provides that Rules 2-18.1 through 2-18.7 apply to applications for rehearings related to writ applications. Rule 2-18.7 provides that “[a]n application for rehearing will be considered where the court has: (A) Granted a writ application on the merits; (B) Dismissed an appeal; or (C) Ruled on the merits of an appeal.” The Rules do not provide for a rehearing from a denial of an application for supervisory writs. See Y.F.B. v. R.D.R., 01-0345 (La. 4/12/01), 787 So.2d 276; Morns v. Stueben, 01-0137 (La. 1/26/01), 781 So.2d 1220. Consequently, the thirty-day period for taking writs to this court provided by Supreme Court Rule X, § 5(a) was not extended by defendant’s application for rehearing in the court of appeal because it was not an instance where a rehearing was allowed, [footnote omitted]


text:
    STATE of Louisiana v. Ryan MINER
    No. 2017-KK-1586
    Supreme Court of Louisiana.
    01/04/2018
   ON SUPERVISORY WRIT TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM

. | Writ granted in part. Code of Evidence article 404(B)(1) embodies the settled principle that, evidence of other crimes may be admissible if the state establishes an independent and relevant reason for its admission. State v. Taylor, 16-1124, p. 12 (La. 12/1/16), 217 So.3d 283, 292. It is the duty of the district court in its gatekeeping function to determine the independent relevancy of this evidence. State v. Altenberger, 13-2518, pp. 7-8 (La. 4/11/14), 139 So.3d 510, 515; State v. Garcia, 09-1578, pp. 54-65 (La. 11/16/12), 108 So.3d 1, 39. The district court must also balance the probative value of the other crimes, wrongs or acts evidence against its prejudicial effects before the evidence can be admitted. State v. Henderson, 12-2422, pp. 1-2 (La. 1/4/13), 107 So.3d 566, 567-68. Here, testimony of one. codefendant at a prior unrelated trial that the two codefen-dants drove through the same neighborhood while armed with an AK.-47 just six weeks before the drive-by shootings with which they are now charged is admissible under the principles above. Defendant fails to show the district court erred in performing its gatekeeping function.

However, if the codefendant exercises his right not to testify, the admission of this evidence at the joint trial would certainly violate Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in' which the United States Supreme Court held that the admission of testimonial hearsay statements violates the Confrontation Clause unless the hearsay declarant is unavailable at trial and the defendant has. previously had an opportunity to cross-examine the declarant about the subject of the hearsay statements. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. Although' it is unknown at this time whether the codefendant will ultimately testify at trial, the risk of reversible error is too high under the circumstances to allow the joint trial to proceed after determining the other crimes evidence will be admitted. See generally La.C.Cr.P. arts. -495.Í, 704(2). Therefore, the. staté must now decide whether it wishes to sever the trials or jointly try the codefendants but not utilize this other crimes evidence at the joint trial. The matter is remanded to the district court to allow the state the opportunity to make this election and for further proceedings consistent with these views.

REVERSED IN PART AND REMANDED


text:
    STATE of Louisiana v. Constant ALLAH
    No. 2017-OK-0785
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM

11 Writ granted in part. Because defendant pleaded guilty to three counts of second degree battery, an offense enumerated as a crime of violence in R.S. 14:2(B), he was not entitled to deferred sentences. See La.C.Cr.P. art. 898(E)(1)(b) (prior to amendment by 2016 La. Acts 509). Similarly, defendant was not entitled to an ex-pungement of these convictions under the provisions in effect at the time he filed his motion, though he may be in the future. See La.C.Cr.P. art. 978 (prior to amendment by 2016 La. Acts 125, adding Paragraph E). However, the court of appeal erred in declaring defendant’s pleas under La.C.Cr.P. art. 893 to be absolute nullities. At the time of defendant’s pleas, Article 893(A) allowed for suspended sentences to be imposed for second degree battery convictions, and defendant received suspended sentences. As a result, on review, we cannot conclude that the pleas constituted absolute nullities.

When a district court finds, even after sentencing, that a plea of guilty is constitutionally infirm, it retains the authority to vacate the sentence and set aside the plea. See State v. Lewis, 421 So.2d 224, 226 (La. 1982); see also State ex rel. Clark v. Marullo, 352 So.2d 223 (La. 1977). On remand, the district court should [¿first ascertain whether defendant — bearing in mind that he may nonetheless be eligible for expungement in the future — desires to withdraw his guilty pleas. If he so wishes, only then should the district court hold a contradictory hearing to determine whether the pleas were constitutionally infirm and decide whether the pleas were induced by what defendant justifiably believed to be a plea bargain which, as a matter of law, could not be kept. See State v. Dixon, 449 So.2d 463, 464 (La. 1984).


text:
    STATE EX REL. Gary SHURLEY v. STATE of Louisiana
    No. 2016-KH-1878
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TAN-GIPAHOA

PER CURIAM

| denied. To the extent relator seeks post-conviction relief, he fails to show the district court erred in denying relief and refusing his request for the grand jury transcripts. La.C.Cr.P. art. 434; see State v. Trosclair, 443 So.2d 1098, 1103 (La. 1983) (“The United States Supreme Court has stated that the indispensable secrecy of grand jury proceedings must not be broken except where there is a compelling necessity. While there may be instances in which a party’s need for grand jury materials outweighs the need for continued secrecy, that need must be demonstrated “with particularity’ ”.).

. Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La, C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can 12show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Michael ENNIS
    NO. 2017-KK-2145
    Supreme Court of Louisiana.
    December 29, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 16-931; to the Court of Appeal, Fifth Circuit, No. 17-K-620;

h Denied.

GUIDRY, J., recused.


author: GUIDRY, J. WHIPPLE, C.J., CRAIN, J., PETTIGREW, J., McCLENDON, J.,

text:
    Wayne J. STABILER, Jr. and the Little Village CWA, LLC v. LOUISIANA BUSINESS, INC. (d/b/a “Greater Baton Rouge Business Report”, “BusinessReport.com”, “DailyReport.com”, “Daily Report AM” and “Daily Report PM”); Stephanie Riegal, Robert L. Miller and Rolfe McCollister, Jr.
    2016 CA 1182
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: SEPTEMBER 26, 2017

      Randall A. Shipp, Garth J. Ridge, Baton Rouge, LA, Counsel for Plaintiff-Appellant, Wayne Stabiler, Jr. and The Little Village CWA, LLC
    Carlton Jones, III, Johanna A. Posada, Baton Rouge, LA, Counsel for Defendant-Appellee, Louisiana Business, Inc., Stephanie Riegel, and Rolfe McCollister, Jr.
    Franklin J. Foil, Baton Rouge, LA, Counsel for Defendant-Appellee, Robert L. Miller
    BEFORE: WHIPPLE, C.J., GUIDRY, pettigrew, McClendon, and CRAIN, JJ.
   GUIDRY, J.

laA local, restaurant business and its owner appeal a judgment dismissing their defamation claims against a local publishing company, its chairman, and one of its reporters pursuant to a special motion to strike under La. C.C.P. art. 971, known as Louisiana’s Anti-SLÁPP statute,

FACTS AND PROCEDURAL HISTORY

On May 16, 2014, an online news article written by Stephanie Riegel was published on the Baton Rouge Business Report website about a jury’s verdict in a tort suit between two companies, the Little Village CWA, LLC and CDR Properties, LLC. The original article, published in May 2014, was titled “Stabiler loses legal battle over damage at former home of Little Village.” The article then went on to recount that “Restaurateur Wayne Stabiler will have to pay $15,000 in damages plus attorneys fees to the owners of the downtown building at 453 Lafayette St., which previously housed one of his most popular restaurants, The Little Village.” The article further recounted that “The Little Village intentionally damaged the building in the process of moving out” and that the CDR Properties’ suit alleged “The Little Village used sledgehammers, saws and wrecking bars to destroy a custom-built bar made from reclaimed cypress that had been in the restaurant.” The article also contained a quote from Rob Miller, a member and owner of CDR Properties, stating “The jury decided that the restaurant intentionally damaged the property and awarded damages to us because of that.”

In 2015, following the online publication of the above-referenced article, counsel for the Little Village CWA, LLC contacted Louisiana Business, Inc., the [scompany that publishes the print and online editions of the Baton Rouge Business Report, to complain about certain statements made in the May 16, 2014 article. In light of the complaint, the article was revised to identify the corporate entity, The Little Village CWA, LLC, as the owner of The Little Village Restaurant and the party cast in judgment in the lawsuit filed by CDR Properties. The quote by Miller, however, and the statements that CDR Properties’ building was “intentionally” damaged using “sledgehammers, saws and wrecking bars” remained in the revised article that was substituted for the original article.

In May 2015, Wayne J. Stabiler, Jr. and The Little Village CWA, LLC filed a petition for damages against Louisiana Business, Inc., Riegel, Miller, and Rolfe McCol-lister, the chairman of Louisiana Business, Inc., alleging that the named defendants were liable for defamation relative to statements made in the May 16, 2014 articles. Answers were filed by the defendants generally denying any such liability. Thereafter, Louisiana Business, Inc., Rie-gel, and McCollister (collectively, the “LBI defendants”) filed a special motion to strike pursuant to La. C.C.P. art. 971, which the plaintiffs opposed.

The trial court held a hearing on the special motion to strike on April 18, 2016. After hearing the argument of counsel, the trial court found:

All trials, unless indicated otherwise, are open to the public and are public spectacles for lack of a better word, many of them, more so than others, but they are public issues.
I think a jury trial in this court in which various people report upon becomes a public issue. The fact that it involves a dispute between two businesses here in the downtown Baton Rouge area makes it a public issue. I think Mr. Stabiler has made himself a public figure.... As a public figure he would, to prevail, have to show actual malice. There has been no allegation in the petition of actual malice Lor there have been no allegations of—-let me see the word I’m looking for—applied malice or inferred malice.

In so finding, the trial court granted the special motion to strike as to the LBI defendants, dismissing the plaintiffs’ defamation suit against those defendants without prejudice, and awarded attorney fees in the amount of $3,500.00. The plaintiffs, Stabiler and The Little Village CWA, have appealed the May 3, 2016 judgment signed by the trial court encompassing those rulings. The LBI defendants have answered the appeal seeking an increase in the trial court’s, award of attorney fees and further seeking an additional award of attorney fees and costs for work performed on appeal.

DISCUSSION

The granting of a special motion to strike presents a question of law. Appellate review of a question of law is simply a review of whether the trial court was legally correct or legally incorrect. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders a judgment on the record. Starr v. Boudreaux, 07-0652, pp. 3-4 (La. App. 1st Cir. 12/21/07), 978 So.2d 384, 388.

In this appeal of the judgment granting the special motion to strike, the plaintiffs have raised two assignments of error. In their first assignment of error, the plaintiffs contend that the matter reported on by the LBI defendants, was simply a private landlord-tenant dispute concerning damages, and there was nothing of public interest at issue on which to premise the special motion to strike and the award of attorney fees. We disagree.

Louisiana Code of Civil Procedure article 971 states, in pertinent part:

A, (i) A eáuse 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.
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:
(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. [Emphasis added.]

Louisiana Code of Civil Procedure article 971 was enacted by 1999 La. Acts, Nó. 734, § 1. Section 2 of the Act provides:

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. .

Hence, Article 971 was enacted by the legislature as a procedural device to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of- freedom of speech and petition for redress of grievances. Thinkstream, Inc. v. Rubin, 06-1595, p. 9 (La. App. 1st Cir. 9/26/07), 971 So.2d 1092, 1100, writ denied, 07-2113 (La. 1/7/08), 973 So.2d 730.

| «Pursuant to Article 971, a cause of action against a person arising from any act 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. La. C.C.P. art. 971(A)(1). Under the shifting burdens of proof established by the article, 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, Inc., 06-1595 at p. 9, 971 So.2d at 1100.

To meet their initial burden on the special motion to strike, the LBI defendants ásserted that the articles in dispute were statements or writings made in connection with an issue under consideration or review by á judicial body, and thus the plaintiffs’ defamation suit was subject to the special motion to strike pursuant to La. C.C.P. art. 971(F)(1)(b). In opposition, the plaintiffs argue that the May 16, 2014 articles do not fall under the purview of La. C.C.P. art. 971(F)(1)(b), primarily relying on the holding of the Louisiana Fifth Circuit Court of Appeal in Yount v. Handshoe, 14-919 (La. App. 5th Cir. 5/28/15), 171 So.3d 381. In that case, the appellate court found the language of La. C.C.P. art. 971(F)(1)(b) to be ambiguous and interpreted the provision regarding statements made in connection with a matter under review or consideration by a governmental body to also require that the proponent establish that the statements were made in connection with a public issue. See Yount, 14-919 at p. 12, 171 So.3d at 389.

In a recent, unpublished decision handed down by this Court, however, another panel expressed disagreement with the Yount opinion. Additionally, the |7panel recognized that this court “has already- found' in Gibbs v. Elliott, that the plain language of Article 971(F)(1)(a) and (b) provides that an act ‘in connection with a public issue’ includes ‘[a]ny written ... [sjtatement or writing made before a ... judicial proceeding’ or ‘made in connection with an issue under consideration or review by a ... judicial body.’ ” Aloise v. Capital Management Consultants, Inc., 16-1174, p. 7 (La. App. 1st 4/12/17), 2017 WL 1378223, at *4 (unpublished opinion)(quoting Gibbs v. Elliott, 12-2121, p. 6 (La. App. 1st Cir. 9/13/13), 186 So.3d 667, 672).

We likewise agree with the holdings of this Court regarding the interpretation of La. C.C.P. art. 971(F)(1)(b). Therefore, we find that because the statements in the May 16, 2014 articles were in connection with a judicial proceeding, the statements at issue satisfy the LBI defendants’ initial burden under Article 971, thereby shifting the burden to the plaintiffs to demonstrate a probability of success on their defamation action. See Aloise, 16-1174 at p. 8, 2017 WL 1378223, at *4-5.

In their second assignment of error, the plaintiffs basically assert that the trial court erred in finding that they did not meet their burden of demonstrating a probability of success on their defamation action because the record shows that the statements made in the May 16, 2014 articles were made in reckless disregard of the truth sufficient to show actual malice.

The Louisiana Supreme Court has recognized that the legacy of United States Supreme Court decisions regarding defamation is that “the protections afforded by the First Amendment supercede the common law presumptions of [malice], falsity, and damages with respect to speech involving matters of public concern, at least insofar as media defendants are concerned.” Starr, 07-0652 at p. 7, 978 So.2d at 390 (quoting Kennedy v. Sheriff of East Baton Rouge, 05-1418, p. 8 (La. 7/10/06), 935 So.2d 669, 677). Accordingly, our supreme court has recognized that in actions against a media defendant involving an issue of public concern, the presumptions of falsity, malice, and -injury do not apply. Starr, 07-0652 at p. 7, 978 So.2d at 390 (citing Kennedy, 05-1418 at pp. 8-9, 935 So.2d at 677). Hence, in cases involving statements made on an issue of public concern, against a media defendant or statements made about a public figure, a plaintiff must prove all elements of his cause of action for, defamation, including actual malice. Starr, 07-0652 at pp. 7-8, 978 So.2d at 390. Actual malice is generally established by a showing that the defendant either knew the statement was false or acted with reckless disregard for the truth. Starr, 07-0652 at p. 6, 978 So.2d at 390 (citing Costello v. Hardy, 03-1146, p. 14 (La. 1/21/04), 864 So.2d 129, 141).

Thus, in order to maintain a cause of action .for defamation in a matter- of public concern involving a media defendant .or involving a public figure, a plaintiff must prove: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) -resulting injury. If any one of these required elements is lacking, the cause of action fails. Starr, 07-0652 at p. 5, 978 So.2d at 389.

The LBI defendants recognized the error in the original article that incorrectly identified Stabiler as the defendant in the CDR Properties suit and the party liable to pay the damages awarded to CDR Properties. Accordingly, they revised the article to reflect that The Little Village CWA was the defendant in the suit and the party liable for damages. As Riegel explained, she wrote the May 16, 2014 article on the day the jury’s verdict was reached “based on the information available at the time and a statement by an individual known to have intimate | ^knowledge of the litigation, Mr. Miller.” She stated “[n]o other information was available on the jury verdict at the time.” She further explained that the story was written as a follow up to an article she had previously published on January 20, 2014, announcing that jury selection had begun in the litigation between CDR Properties and The Little Village.

After being contacted by counsel for Stabiler and The Little Village CWA, Rie-gel stated that the title of the original article was corrected and the body of the article was revised “to reflect the correct corporate name of the business.” As to the statement by Miller contained in the article, Riegel stated “LBI refused to remove Mr. Miller’s statement as it was a statement made by an individual who was present during the trial and it was made based upon his perception of the proceedings.” No explanation was provided for why the other statements, regarding the building being “intentionally” damaged and the use of sledgehammers, saws, and wrecking bars, were not removed.

Initially, we observe that jurisprudence has held that where false statements were initially published based on information known at the time, but later retracted once the party became aware of the falsity, claims of defamation have not been sustained. See Johnson v. KTBS, Inc., 39,022, pp. 7-8 (La. App. 2d Cir. 11/23/04), 889 So.2d 329, 334, writ denied, 04-3192 (La. 3/11/05), 896 So.2d 68; Henderson v. Richardson, 26,526, pp. 4-5 (La. App. 2d Cir. 1/25/95), 649 So.2d 134, 136, writ denied, 95-0732 (La. 4/28/95), 653 So.2d 599. In the matter before us, the LBI defendants did retract the information regarding Stabiler personally, but refused to retract any of the other information contained in the article that the plaintiffs also assert is false. Thus, we must consider the remaining contested information that was left in the revised article by the LBI defendants to determine whether the plaintiffs met their burden of demonstrating a probability of success on | ]ntheir defamation claim.

The question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. Starr, 07-0652 at p. 5, 978 So.2d at 389. In the instant matter, the plaintiffs claim that in addition to the quoted statement from Miller, the following statements contained in the revised article were defaming: “A jury in 19th Judicial District Court awarded the damages Thursday to CDR Properties, which alleged in a 2010 lawsuit that The Little Village intentionally damaged the building in the process of moving out when it relocated to the nearby Kress Building,” and “[t]he suit alleged The Little Village used sledgehammers, saws and wrecking bars to destroy a custom-built bar made from reclaimed cypress that had been in the restaurant.” (Emphasis added.) Further, Miller was quoted in the article as stating “[t]he jury decided that the restaurant intentionally damaged the property and awarded damages to us because of that.” (Emphasis added.)

As previously discussed, the LBI defendants appear to rely on the fact that even if false, it cannot be shown that the information was negligently published so as to support the plaintiffs’ defamation action, because, as they assert, they published the article based on the information known and available to them at the time. Even if this argument is sustainable with respect to the original article, the record shows that the revised article was published several months after the jury’s verdict had been handed down and after the LBI defendants had been informed of the alleged inaccuracies of statements contained in the article, which was at a time when the entire record in the proceedings should have been available. Hence, to the extent the evidence submitted by the plaintiffs indicates that the statements maintained in the revised article are false, then the LBI defendants’ failure to verify the statements against the available record would be sufficient to 11T demonstrate that the LBI defendants published the statements in reckless disregard of the truth.

The original and the supplemental and amending petitions from the CDR Properties’ lawsuit reveal no allegations of The Little Village damaging property using any sledgehammers, saws, or wrecking bars, although in the supplemental and amending petition, it is alleged that “Defendant deliberately cut the [w]ires connected to the fire alarm system disabling same.” Further, even in statements attributed to Miller, there is no mention of the use of sledgehammers, saws, or wrecking bars. As neither the petitions nor Miller appear to have asserted any claims of sledgehammers, saws, and wrecking bars being used by The Little Village, it is unclear on what authority Riegel relied to assert that such allegations were made in the lawsuit in both the original and revised articles.

Moreover, while only the petitions, rather than the entire suit record, were submitted in connection with the hearing on the motion to strike, we find this evidence was sufficient to sustain the plaintiffs’ burden of establishing a probability of success on their claim , of defamation. In particular, we observe that the statements from the articles that the plaintiffs highlight as being false and defaming each contain the word “allege.” In civil proceedings, allegations of fact are made in pleadings. See La. C.C.P. art. 854 (“All allegations of fact of the petition, exceptions, or answer... ”) and comment (a) thereunder. And while the concept of expansion or enlargement of the pleadings does exist, such concept is premised on unchallenged evidence presented at trial rather than the presentation of new allegations. See Comment (b) under La. C.C.P. art. 854 (“In Louisiana[,] it is well settled that the pleadings are enlarged by evidence adduced without objection[,] which is not pertinent to any of the issues raised by the pleadings, and hence would have been excluded if objected -to .timely” (emphasis added)). Thus, 112we find the evidence submitted by the plaintiffs was sufficient to show the statement regarding the allegation that “The Little Village used sledgehammers, saws, and wrecking bars” was false. . ■

Accordingly, we find that the plaintiffs met their burden of demonstrating a probability of success on their defamation claim as to the Little Village CWA, LLC sufficient to defeat the special motion to strike. 'The record shows the plaintiffs established the falsity of the published statement contained in the revised article. The record further shows the plaintiffs' established that the LBI defendants published the false statement with actual malice — that is, in reckless disregard of the truth premised on their failure to verify the statements in the revised article against court records that were clearly available at the time the revised article was published. Proof of actual malice in this instance is underscored by the fact that the LBI defendants were advised by the plaintiffs, of the falsity, yet they refused to correct the statement or even attempt to verify the accuracy of the state-merit, which was not attributable to Miller nor contained in the petitions of the lawsuit that were available in the public record.

CONCLUSION

For the foregoing reasons, we reverse the judgment granting the LBI defendants’ special motion to strike in part and vacate the trial court’s award of attorney-fees to those defendants. Consequently, we remand this matter to the trial court for assessment and apportionment of reasonable attorney fees and costs against the LBI defendants and the plaintiffs in light of our judgment ruling partially in favor of the plaintiffs and for further proceedings. And further as a consequence of our determinations on appeal, we deny the LBI defendants’ answer to the appeal. All costs of this appeal are east one-half to the appellants, Wayne hsStabiler and the Little Village CWA, LLC, and the other half to the appellees, Louisiana Business, Inc., Rolfe McCollister, and Stephanie Riegel.

REVERSED IN PART, VACATED IN PART, AND REMANDED; ANSWER TO APPEAL DENIED.

Whipple, C. J. dissents and assigns reasons.

Crain, J. concurs in part arid disserits in part and assigns reasons.

Pettigrew, J. concurs in part and dissents in part and assigns reasons.

McClendon, J. concurs and assigns reasons.

WHIPPLE, C.J.,

dissenting.

hi agree with the majority insofar as the majority concludes that the LBI defendants demonstrated that the published statements at issue in this ease constitute constitutionally protected free speech. The statements are statements of opinion or interpretation of the meaning or basis of a jury’s verdict as related to an earlier damage lawsuit. Thus, I agree that the contested statements were “made in connection with an issue under consideration ... by a judicial body.” LSA-C.C.P: art. 971(F)(1)(b)..

Moreover, in my view, the published statements are a matter of public concern. LSA-C.C.P. art. 971(F)(1)(c). The United States Supreme Court has defined matters of “public concern” very broadly, he,, as speech “relating to any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed. 2d 708 (1983). A local prominent restaurant owner’s business practices are a matter of public concern and involve issues in which “the local community would reasonably be expected to have a legitimate interest.” Starr v. Boudreaux, 2007-0652 (La. App. 1st Cir. 12/21/07), 978 So.2d 384, 391 (“Clearly, the articles discussing the removal of a local radio station from the airwaves, which was an important source for local 12news, talk, and weather, relates to a matter of public concern and is an issue about which the local community would reasonably be expected to have a legitimate interest.”)

As noted by the majority, since the LBI defendants demonstrated that the, statements at issue herein constitute constitutionally protected free speech, the burden then shifted to plaintiffs to demonstrate a probability of success on their defamation claim in order to defeat the motion to strike. Aloise v. Capital Management Consultants, Inc., 16-1174, p. 7 (La App. 1st Cir. 4/12/17), 2017 WL 1378223 (unpublished). Moreover, to satisfy this burden of proof in a case involving a matter of public concern and a media defendant, the plaintiffs were obligated to prove: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Starr, 978 So.2d at 389.

Accordingly, I respectfully dissent from of the majority’s determination that plaintiffs met their burden of demonstrating a probability of success on their defamation claim as to the Little Village CWA, LLC sufficient to defeat the granting of the LBI defendants’ special motion to strike. Specifically, on the record before us, I am unable to find that plaintiffs demonstrated the falsity of the challenged statements.

Plaintiffs allege that they were defamed by the published newspaper article insofar as the article reported that: (1) the CDR Properties lawsuit alleged that the Little Village intentionally damaged the building; (2) the CDR Properties lawsuit alleged that the Little Village used sledgehammers, saws, and wrecking bars to destroy a bar; and (3) the jury decided that the restaurant intentionally damaged the property and awarded damages because of that.

With regard to the allegation of intentional damaging, the supplemental and amended petition filed in the underlying CDR Properties lawsuit did allege that |s“[d]efendant [the Little Village] deliberately cut the [wjires connected to the fire alarm system disabling the same.” While this allegation states “deliberately” and not “intentionally,” I am unable to find a material difference between these two words. Thus, in my view, plaintiffs did not demonstrate the probability of the falsity of the published statement that the CDR Properties lawsuit alleged that the Little Village “intentionally damaged the building.” ■

Moreover, while the petition(s) in the underlying CDR Properties lawsuit may not have specifically alleged that the Little Village used “sledgehammers, saws, and wrecking bars” in the damaging or destruction of the property, this does not establish the probability of the falsity of this statement. As noted by the majority, it is. well-settled law that pleadings are enlarged by evidence adduced at trial without objection. And, as. pertinent hereto, plaintiffs did not introduce the trial transcript from, the underlying damage lawsuit into the record of the instant proceedings. Accordingly, ,we are unable to discern whether, at the trial of the underlying matter, evidence of the use of “sledgehammers, saws, and wrecking bars” was introduced. On the record before us, we simply do not know. As stated by the majority, it was plaintiffs’ burden of proof to establish the probability of the falsity of the statements. Without the. transcript of the underlying damage lawsuit, there is nothing before us to determine the probability of the falsity of the published statement reporting allegations of the Little Village’s use of sledgehammers, saws, and wrecking bars. , .

Additionally, plaintiffs failed to prove the probability of the falsity of the published statement regarding “[t]he jury decided that the restaurant intentionally damaged the property and awarded damages [to be paid by the Little Village] because of that.” The jury verdict form that is part of the record demonstrates that the jury in the underlying suit found that the Little Village had “an obligation to LiPay any damage claimed by CDR Properties” in the amount of $15,000,00. As stated above, the amended petition undisputedly alleged “deliberate” damage, which supports the claim that there was intentional damage established.at the underlying trial. Thus, in my view, plaintiffs have failed to demonstrate the falsity of this challenged statement, which was essentially nothing more than the reporting of an opinion or comment interpreting the basis of the jury’s verdict. •

Finally, I am unable to find that the plaintiffs demonstrated the probability of malice, actual or implied, by the LBI defendants in publishing the subject newspaper article, particularly given the fact that the LBI defendants later corrected the publication to reflect the actual named defendant in the CDR Properties lawsuit. In my view, the LBI defendants acted within their rights in reporting the information that was reported to them and made available at the time of the report. As succinctly stated by the LBI defendants, “[reporting on the results of litigation has long been one of the basic obligations of a free press.” Indeed, the ability to have open and public discourse, including the expression of opinions as to the meaning, basis, and 'merits of a legal claim or result in a legal proceeding, is a fundamental tenet and hallmark of a democracy.

In my view, maintaining either plaintiffs defamation claim against the LBI defendants would have a crippling effect on free speech. In sum, such an approach would subject a person to damages any time that person discussed or opined on a jury’s verdict or the basis of the same. This is precisely why anti-SLAPP laws were enacted.

For these reasons, I respectfully dissent.

CRAIN, J.,

concurs in part and dissents in part.

_JjI concur with the majority’s conclusion that the relevant published statements are constitutionally protected free speech, because they were “made in connection with an issue under consideration... by a judicial body.” La. Code Civ. Pro. art. 971(F)(1)(b). However, for the reasons assigned by Chief Judge Whipple relative to the plaintiffs’ failure to meet their burden of proof under Article 971, I dissent from the remainder of the majority opinion.

PETTIGREW, J.,

CONCURS IN PART AND DISSENTS IN PART, AND ASSIGNS REASONS.

| J concur with the majority on reversing the trial court’s grant of a special motion to strike in favor of defendants as to The Little Village CWA, LLC claim. I dissent with the majority’s affirmance as to the trial court’s grant of the special motion to strike in favor of defendants as to Wayne Stabiler, Jr.’s claim'. I am of the opinion that Stabiler’s claim against defendants does not fall within the scope of La. Code of Civil' Procedure art. 971.

Stabiler was not a party to the lawsuit between The Little Village CWA, LLC and CDR Properties, LLC that the defendants’ online news article of May 16, 2014, was reporting on. False statement about him in said article was gratuitously added to the article, even though he was not a party. At the time of that news article on May 16, 2014, Stabiler was not a public figure and was not involved with any issue of public concern. The alleged retraction by the defendants did not occur until at least eight months after the original article, after which the damage had already been done.

I am of the opinion the facts of this case are distinguishable from the case of Michael Aloise, Jr. v. Capital Management, 2016 CA 1174. I would reverse the judgment of the trial court granting the special motion to strike of the defendants, and remand the. matter for further proceedr mgs. , ⅛

McCLENDON, J.,

concurring.

II Given that the record before us is devoid of any basis for the source of the comment that “The Little Village used sledgehammers, saws and wrecking bars to destroy a custom-built bar” in the restaurant, I concur in the result reached by the majority.

      . Article 971 belongs to the class of statutes known as "anti-SLAPP statutes” and applies in a very specific, situation — when a litigant has brought a cause of action, typically alleging defamation, in an effort to chill the First Amendment speech of its target. Gebre v. City of New Orleans, 14-0904, p. 11 (La. App. 4th Cir. 10/7/15), 177 So.3d 723, 732. SLAPP is an acronym for Strategic Lawsuits Against Public Participation. Thomas v. City of Monroe Louisiana, 36,526, p. 7 (La. App. 2d Cir. 12/18/02), 833 So.2d 1282, 1286.

      .The revised article displays the following editor's note: "This story has been revised from a previously published version.”

      . The file stamp on the petition in the record before us shows a filing date of May 22, 2015; however, the parties acknowledge that" the petition was fax filed on May 15, 2015.

      . Although the record establishes that the revised article was actually published online in 2015, May 16, 2014 is posted as the date of the revised article as well.

      . The United States Supreme Court has defined matters of "public concern” as speech "relating to any matter of political, social, or other concern to the community.” Starr, 07-0652 at p. 9, 978 So. 2d 391 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983)). By their own evidence, presented in opposition to the special motion to strike, the plaintiffs established that the lawsuit between CDR Properties and The Little Village CWA was a matter of concern to the community.- As stated in the affidavits of Stabiler and' various employees of the Little Village Restaurant, "many customers” asked Stabiler and the restaurant staff about the information conveyed in the May 16, 2014 articles.

      . Louisiana Code of Civil Procedure article 971(B) provides, in pertinent part, that “a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.”- i


author: WELCH, J. THERIOT, J.,

text:
    Patricia Mallett MAYO v. Sidney Randall HUTCHISON and Patricia Fabre Hutchison
    NUMBER 2016 CA 1642
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 27, 2017

      Jay M. Simon, Baton Rouge, Louisiana, Attorney for Appellant, Plaintiff — Patricia Mallet. Mayo
    Scott H. Sledge, Hammond, Louisiana, Attorney for Appellees, Defendants — Sidney Hutchison- and Patricia Hutchison
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   WELCH, J.

|aThe plaintiff/appellant, Patricia Mallett Mayo, appeals a judgment sustaining a peremptory exception raising the objection of prescription filed by defendants/appel-lees, Sidney Randall Hutchison and Patricia Fabre Hutchison. For the reasons that follow, we affirm the judgment of the district court.

FACTS AND PROCEDURAL BACKGROUND

This appeal arises out of a suit to enforce a promissory note secured by a mortgage. On . June 2, 2005, Patricia Mayo entered into a cash sale with Sidney and Patricia Hutchison wherein Mayo conveyed to the Hutchisons certain immovable property located at the municipal address of 10397 Highway 1063, Independence, Louisiana 70443 (“the property”). In connection with the sale, the Hutchisons obtained a mortgage from Option One Mortgage Corporate (“Option One mortgage”) that covered a majority of the purchase price of the property. The Option One mortgage was filed in the Tangipahoa Parish mortgage records on June 3, 2005.

To make up the deficiency between the price of the property and the sums obtained through the Option . One mortgage, the Hutchisons executed .a promissory note in favor of Mayo on June 3, 2005. The June 3, 2005 note in the amount of $26,000.00 was secured by a mortgage on the property (“Hutchison mortgage”). The note was payable in fifty-nine (59) equal monthly payments, beginning on July 2, 2005, with the final installment of principal with accrued interest due on or before June 2, 2010. As discussed below, the Hutchison mortgage was incorrectly filed into the Tangipahoa mortgage records on June 6, 2005. It is undisputed that the Hutchisons never made á single payment on the note.

IsThe First Suit — Declaratory Action Filed by Deutsche Bank

In 2006, without Mayo’s knowledge, the Hutchisons refinanced the Option One mortgage with another lender, America’s Wholesale Lender (“AWL”). Deutsche Bank National Trust Company (“Deutsche Bank”) later became the holder of the AWL mortgage. In September 29, 2014, Deutsche Bank filed a declaratory judgment against Mayo seeking recognition as the first ranking encumbrance against the property (“Deutsche Bank suit”). Deutsche Bank specifically alleged that several deficiencies associated with the filing of the Hutchison mortgage, including the misspelling of the Hutchisons’ name in the mortgage records and the failure to attach 'the correct note, which prevented the Hutchison mortgage from encumbering the property and rendered it outside the chain of title.

Mayo answered Deutsche Bank’s petition on December 15, 2014. On February 13, 2015, Mayo made her first attempt to secure.a judgment to enforce the June 3, 2005 note, by filing a motion for.leave of court to file a third party demand' on the note against the Hutchisons. Leave of court was granted on February 23, 2015. Mayo requested service of the third party demand on the Hutchisons, which was accomplished on March 3, 2015; however, she failed to serve the Hutchisons with a copy of Deutsche Bank’s petition in the principal demand as -required by La. C.C.P. art. 1114. Mayo also failed to sérve by mail or | otherwise a copy of the third party demand on Deutsche Bank as required by La. C.C.P. art. 1312.

At some point after service of the third party demand, a document entitled “Consent' Judgment” was signed by counsel for Mayo and both of the Hutchisons. A copy of the undated Consent Judgment document was filed with the district court on April 7, 2015 (“April 7, 2015 consent judgment”). Review of the consent judgment reveals that no signature line was provided for the district court’s signature and the document was never signed by the district court. The.April 7, 2015 consent judgment sets forth the parties’ intent to settle the third party demand. Further, the April 7, 2015 consent judgment contains an express acknowledgment by the Hutchisons of their obligations under the June 3, 2005 note, and provides, in pertinent part, as follows:

The parties further agree that Third Party Defendants, Sidney Randall Hutchison and Patricia Fabre Hutchison have consistently acknowledged their obligations under the referenced Note and Mortgage to Third Party Plaintiff, Patricia Mallett Mayo, from the inception of the said Note and Mortgage through the present year and are truly indebted to Third Party Plaintiff Patricia Mallett Mayo for failure to perform under that certain Promissory Note dated and made June 3, 2005...

Finally, the parties requested that a judgment be rendered dismissing the third party demand with prejudice. A written judgment was signed by the trial court on April 13, 2015, in favor of Mayo and against the Hutchisons in the | ^amount of $26,000.00, with 6% interest running from June 2, 2005 until paid, attorney’s fees and all costs of the proceeding.

On April 23, 2016, Deutsche Bank filed a “Motion to Set Aside, Strike, Vacate, and Nullify Third Party Demand and Consent Judgment and for Sanctions,” wherein Deutsche Bank alleged that Mayo had through ill practices attempted to conceal the third party demand from it. Deutsche Bank asserted that Mayo’s attorney did not notify her of the April 7, 2015 consent judgment until April 8, 2015. Deutsche Bank requested the third party demand and the consent judgment be set aside as absolute nullities due to Mayo’s failure to properly serve the third party demand on the Hutchisons under La. C.C.P. art. 1114. Additionally, Deutsche Bank asserted grounds for nullification of the consent judgment on the grounds of fraud and ill practices. Mayo filed .an opposition to Deutsche Bank’s motion and acknowledged the procedural deficiencies in service of the third party demand, but maintained that said deficiencies were the result of inadvertence.

The motion to set aside the consent judgment was never heard. On June 15, 2015, Deutsche Bank and Mayo jointly filed and the district court signed a “Consent Judgment on Motion to Set Aside, Strike, Vacate, and Nullify Third Party Demand and Consent Judgment and For Sanctions” (“June 15, 2015 consent judgment”). In the June 15, 2015 consent judgment, the parties agreed to set aside, strike, vacate and nullify the motion for leave, the petition on the third party demand, the April 7, 2015 consent judgment, and the April 13, 2015 judgment, and provided, in pertinent part, as follows:

|63. The Consent Judgment (without date) signed by Sidney Randall Hutchi-son and Patricia Fabre Hutchison and filed on April 7, 2015, is absolutely null and void and without any legal effect whatsoever and, as such, Defendant, Patricia Mayo, is prohibited from utilizing same in this proceeding or in any other proceeding against Sidney Randall Hutchison and/or Patricia Fabre Hutchison;
4. The Judgment entered on the Third Party Demand on April 13, 2015, is hereby set aside, vacate[d], nullified, and stricken from the record of this proceeding;
5. The Clerk of Court shall file a copy of this Consent Judgment in the conveyance and mortgage records of Tangipahoa Parish and cross-reference the same to the Judgment entered on April 13, 2015 and filed as File Number 938555, in MOB 2377, Page 589, and in COB 1379, Page 208, to serve as occasion may require.. . [Emphasis added.]

The Second Suit — Suit on Note Filed by Mayo

On December 18, 2015, Mayo filed the underlying suit in the instant appeal against the Hutchisons in a second attempt to collect on the note. Mayo’s petition set forth the conditions and terms of the note, including the requirement that the final installment was due on June 2, 2010. The petition also alleges that despite repeated acknowledgments of the debt the Hutchi-sons failed to meet their obligations under the note. The Hutchisons countered with a peremptory exception raising the objéction of prescriptioh alleging that Mayo’s petition was prescribed on its face under La, C:C. art. 3498. Specifically, the Hutchisons asserted that under the terms of the note the last payment was due on June 2, 2010, thus, the last date to file suit would have been June 2,2015.. ■

The record indicates that Mayo opposed the Hutchisons’ exception and argued that the April 7, 2015 consent judgment between Mayo and the Hutchisons in the Deutsche Bank suit constituted a judicial confession and served as an ^^acknowledgement thereby interrupting the running of prescription. Mayo also argued that the filing of the third party demand in the Deutsche Bank spit interrupted prescription under La. C.O. art. 3462.

At the July 5, 2016 hearing on the exception, the Hutchisons filed the suit record from the Deutsche Bank suit into evidence without objection. The Hutchisons argued that the express provisions of the later June 15, 2015 consent judgment nullified the earlier April 7, 2015 consent judgment; therefore, Mayo was estopped from claiming that the April 7, 2015 consent judgment constituted a judicial confession or acknowledgement.

Mayo raised a number of arguments at the hearing. First, Mayo argued that since the inception of the note, based on the Hutchisons’ claims that various hardships prevented them from paying on the note, she verbally .extended the term of the note. However, no evidence or testimony was presented to support these claims, only the arguments of counsel for Mayo. Second, Mayo argued that despite the fact that the “judgment” obtained by Mayo against the Hutchisons in the Deutsche Bank suit could not be enforced as.a money judgment, it could serve as a judicial confession acknowledging the debt. Mayo argued that she dismissed the third party demand in the Deutsche Bank suit with the understanding that she could rely upon the judicial confession of liability by the Hutchi-sons to file a later suit and collect on the note.

In a judgment signed July 25, 2016, the district court sustained the Hutchisons’ exception of prescription. Mayo timely filed the instant devolutive | ^appeal. On appeal, Mayo makes two arguments in support of her assertion that the district court erred in sustaining the exception of prescription. First, Mayo asserts that the agreement between the parties memorialized in the April 7, 2015 consent judgment constitutes a judicial confession and is full irrefutable proof of the Hutchisons’, obligation under the note. Second, Mayo contends the Hutchisons’ admissions of responsibility for the sums due under the note contained in the April 7, 2015 consent judgment constitute an acknowledgement of the debt that serves to interrupt the running of prescription under La. C.C. art. 3464. Relevantly, conspicuously absent from Mayo’s arguments in her appellant brief is any acknowledgment of the existence of the later June 15, 2015 consent judgment. For the reasons set forth below, we .find no merit in Mayo’s arguments.

LAW

Prescription

Prescription runs against all persons unless they fall within an exception provided by law. La. C.C. art. 3467. Actions on instruments, whether negotiable or not, and on promissory notes, whether negotiable or not, are subject to a liberative prescription of five years. This prescription commences to run from the day payment is exigible. La. C.C. art. 3498. The five year prescriptive period may be increased either by interruption, which restarts the prescriptive period, or by .suspension, which only stops it for the applicable time. La. C.C. arts. 3466 and 3472; Denham Homes, L.L.C. v. Teche Federal Bank, 2014-1576 (La. App. 1st Cir. 9/18/15), 182 So.3d 108, 115.

Prescription on a promissory note can be interrupted in two instances. First, when the obligee commences action against the obligor, in a court of competent | {jurisdiction and venue. La. C.C. art. 3462. Second, La. C.C. art. 3464 provides that prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. Such an acknowledgment is not subject to any particular formality. Mallett v. McNeal, 2005-2289 (La. 10/17/06), 939 So.2d 1254, 1258. It may be written or verbal, express or tacit. Id.

Ordinarily, the party pleading the objection .of prescription bears the burden of proving the claim has prescribed. Hogg v. Chevron USA, Inc., 2009-2632 (La. 7/6/10), 45 So.3d 991, 998. However, if a petition has prescribed on its face, the burden shifts to the plaintiff to establish that prescription was suspended or interrupted. Wheat v. Nievar, 2007-0680 (La. App. 1st Cir. 2/8/08), 984 So.2d 773, 775. A district court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. Marin v. Exxon Mobil Corp., 2009-2368 (La. 10/19/10), 48 So.3d 234, 244-245. This includes the factual determination as to the date on which prescription begins-to run. Oracle Oil, LLC v. EPI Consultants, Div. of Cudd Pressure Control, Inc., 2011-0151 (La. App. 1st Cir. 9/14/11), 77 So.3d 64, 70, writ denied, 2011-2248 (La. 11/23/11), 76 So.3d 1157.

Judicial Confession

A judicial confession is a declaration made by a party in a judicial proceeding. It constitutes full proof against the party who made it, is indivisible, and may be revoked only on the ground of error of fact. La. C.C. art. 1853; Cichirillo v. Avondale Industries, Inc., 2004-2894 (La. 11/29/05), 917 So.2d 424, 428-429. A judicial-confession is a party’s explicit admission of an- adverse factual element and has the effect of waiving evidence as to the subject of the admission of withdrawing the subject matter of the confession from issue. Id., 917 |inSo.2d. at 429. Relevant to the instant matter is the established rule that a party who has made such an admission in a previous suit is not barred from denying the facts contained in that admission in a subsequent suit, unless the adverse party has been prejudiced by his reliance upon that admission. Alexis v. Metropolitan Life Ins. Co., 604 So.2d 581, 582 (La. 1992); Scoggins v. Frederick, 98-1815, 98-1816, 1998-1814 (La. App. 1st Cir. 9/24/99), 744 So.2d 676, 681-682.

Consent Judgment

A consent judgment is a bilateral contract between the parties by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss. Hebert v. Drewitz, 2009-0798 (La. App. 1st Cir. 10/27/09), 29 So.3d 607, 608. Its binding force arises from the voluntary acquiescence of the parties, rather than the adjudication by the court. Accordingly, unless there is some error of fact or of the principal cause of the agreement, it may not be annulled or rescinded. Horrigan v. Horrigan, 2010-1377 (La. App. 1st Cir. 6/14/11), 70 So.3d 111, 114-115, writ denied, 2011-1596 (La. 10/7/11), 71 So.3d 325. Further, interpretation of a consent judgment, i.e., a contract between parties, is a determination of the common intent of the parties, and when the words of the contract are clear and explicit and lead to no absurd consequences, the intent of the parties is to be determined by the words of the contract. La. C.C. art. 2045; Richardson v. Richardson, 2002-2415 (La. App. 1st Cir. 7/9/03), 859 So.2d 81, 84.

ANALYSIS

We first address Mayo’s assertion that Hutchisons’ admission of liability for the June 3, 2005 note in the April 7, 2015 consent judgment amounts to a judicial confession. As an initial matter, we observe that the April 7, 2015 consent judgment does not appear to constitute a bona fide “consent judgment.” Louisiana Code of Civil Procedure article 1911, provides that “[e]xcept as otherwise |¶ provided by law, every final judgment shall be signed by the judge.” Review of the document reveals that although it is entitled “Consent Judgment,” it was not signed by the judge, nor was it presented to the judge for his signature. The true judgment on Mayo’s third party demand against the Hutchisons was the April 13, 2015 judgment containing decretal language awarding Mayo recovery under the note. On this basis, we conclude that the April 7, 2015 consent judgment is more properly classified as a compromise agreement or motion to dismiss that recites the terms of a settlement of the parties.

Nevertheless, regardless of whether or not the April 7, 2015 document qualifies as a consent judgment under La. C.C.P. art. 1911, when viewed in isolation the admissions contained in the April 7, 2015 consent judgment would qualify as a judicial confession under La. C.C. art. 1853, because the statements therein constitute an explicit admission of an adverse factual element. See Cichirillo v. Avondale Industries, Inc., 917 So.2d at 429. However, as set forth below, the April 7, 2015 consent judgment cannot be viewed in isolation, and must be read in conjunction with the June 15, 2015 consent judgment nullifying the entire proceedings of the third party demand.

Mayo argues that a judicial confession is absolute and irrevocable, and contends that the Hutchisons’ admission/judicial confession in the April 7, 2015 consent judgment amounts to a “proverbial bell that cannot be un-rung.” Mayo stresses that she is not attempting to enforce the April 13, 2015 judgment rendered on her third party demand, and she contends that she relied to her detriment that the Hutch-isons would not contest liability in a later suit based on the admissions made by them in the April 7, 2015 consent judgment.

Mayo’s position is not supported by the law or the' record. A party who has made such an admission in a previous suit is not barred from denying the correctness thereof in a subsequent suit, unless the adverse party claiming the | ^benefit of the judicial confession has relied or acted thereon to his prejudice. Alexis v. Metropolitan Life Ins. Co., 604 So.2d at 582; see also Howard Trucking Co. v. Stassi, 474 So.2d 955, 961 (La. App. 5th Cir.), writ granted, 478 So.2d 1229 (La. 1985), aff'd, 485 So.2d 915 (La. 1986). Thus, there is no legal basis to • support Mayo’s assertion that the April 7,- 2015 consent judgment is irrefutable evidence of the debt.

Additionally, there is nothing in the record to support or justify Mayo’s assertions of reliance on the April 7, 2015 consent judgment and/or the April 13, 2015 judgment dismissing the third party demand as a basis for her belief that the Hutchisons would not contest liability in a later suit. As the Hutchisons point out in their opposition, the purported judicial confession contained in the April 7, 2015 consent judgment cannot be viewed in a vacuum. It is undisputed that the later agreement, of the parties contained in the June 15, 2015 consent judgment expressly ordered that Mayo’s third party demand in the Deutsche Bank action, including the motion for léave, the third party demand, and the April 13, 2015 judgment, be “set aside, vacated, nullified, and striken from the record of this proceeding.” Relevantly, the June 15, 2015 consent judgment also expressly declares that the April 7, 2015 consent judgment is “absolutely null, and void and without any legal effect whatsoever and, as such, Defendant, Patricia Mayo, is prohibited from utilizing same in this proceeding or in any other proceeding against Sidney Randall Hutchison and/or Patricia Fabre Hutchison.”

The binding force of the June 15, 2015 consent judgment derives from the acquiescence of the parties. Mayo does not acknowledge, much less allege any error of fact as to the principal cause of the June 15, 2015 agreement; therefore, it may not be annulled or rescinded. See Horrigan v. Horrigan, 70 So.3d at 115. We can find no authority prohibiting a party from entering into an agreement like that contained in the June 15, 2015 consent judgment. See La. C.C. arts. 7 and 11S2030. A judgment, whether it results from the assent of the parties or is the result of a judicial determination after a trial on the merits, is and should be accorded sanctity under the law. Plaquemines Parish Government v. Getty Oil Co., 95-2452 (La. 5/21/96), 673 So.2d 1002, 1006.

Alternatively, Mayo contends that even if the statements made by the Hutch-isons in the third party action do not constitute a judicial confession establishing liability, the statements in the April 7, 2015 consent judgment constitute an acknowledgment of the debt sufficient to interrupt prescription under La. C.C. 3498. In support, Mayo points to language in the April 7, 2015 consent judgment providing that the Hutchisons “have consistently acknowledged their obligations under the referenced Note and Mortgage to [Mayo], from the inception of the said Note and Mortgage through the present year...” Again Mayo’s arguments ignore the existence of the June 15, 2015 consent judgment, wherein Mayo agreed that she would be prohibited from utilizing the consent judgment in any proceeding against the Hptchisons.'We find that Mayo cannot' rely upon the pleadings and judgment from the Deutsche Bank suit as evidence of acknowledgement of the debt based on her voluntarily agreeing not to do so in the June 15,2015 consent judgment.

Further, at the .hearing on the exception, counsel for Mayo argued that the Hutchisons had verbally acknowledged the debt in conversations with Mayo over the years; however, there are no affidavits, documents, or other competent evidence in the record to support this contention, and the arguments of counsel are not evidence. See Regan v. Caldwell, 2016-0659 (La. App. 1st Cir. 4/7/17), 218 So.3d 121, 128.

|14We note that amendment of the petition under La. C.C.P. art. 934 would be futile based on the facts presented herein. Based on the above, we cannot say that the district court erred in sustaining the Hutchisons’ exception of prescription. Accordingly, we affirm the judgment of the district court.

CONCLUSION

For the reasons set-forth herein, the judgment of the district court dismissing the claims of the- plaintiff/appellant, Patricia Mallett Mayo, against defendants/ap-pellees, Sidney Randall Hutchison and Patricia Fabre Hutchison, is affirmed. The costs of this appeal are assessed to the plaintiff/appellant, Patricia Mallett Mayo.

AFFIRMED.

Theriot, J agrees in part, dissents in part with reasons

THERIOT, J.,

dissenting in part.

|, While I agree that the April 7, 2015 consent judgment is an absolute nullity and cannot interrupt prescription, I would remand the instant case to the trial court to give Ms. Mayo the opportunity, to amend her petition to cure its defect. ,

At the hearing on the exception, counsel for. Ms. Mayo indicated that there had been a verbal communication by telephone between Ms. Mayo and the Hutchinsons where she allegedly decided to extend the payment obligation in order to give the Hutchinsons an opportunity to make the payments on the note. Understandably, there could be issues with credibility or admissibility of hearsay statements '■ in making that claim, but such a claim could theoretically be sufficient to interrupt prescription. When a court sustains an exception of prescription, it should permit amendment of the plaintiffs pleadings if the new allegations that plaintiff proposes raise the possibility the claim has not prescribed, even if the ultimate outcome of the prescription issue; once the petition is amended, is uncertain. Wyman v. Dupepe Construction, 2009-0817 (La. 12/1/09), 24 So.3d 848, 849.

For the foregoing reasons; I would remand to the trial court and allow the plaintiff to amend her petition. '

      . On July 14, 2017, this court issued an interim order directing the Tangipahoa Parish Clerk of Court to supplement the appeal record with the entire suit record from the Deutsche Bank suit — Deutsche Bank National Trust Company v. Patricia Mallet Mayo, et al., Suit No. 2014-0002897, Division "D”, 21st Judicial District Court, Parish of Tangi-pahoa. The Deutsche Bank suit 'record had been offered, filed and introduced as an exhibit during the July 5, 2016 hearing on the exception of prescription at - issue in the instant appeal but was inexplicably absent from the record. The notice of supplementation of the record was issued by this court on July 25, 2017.

      . Louisiana Code of Civil Procedure article 1114 provides:
      A citation' and a certified copy of the third party petition shall be served on the third party defendant in the manner prescribed by Articles 1231 through 1293. Unless previously served on or filed by the third party defendant, certified copies of the following pleadings shall also be served on him in the same manner: the petition in the principal demand; the petition in the reconventional demand, if any; and the answers to the principal and reconventional demands filed prior to the issuance of citation in the third party action.

      , Louisiana Code of Civil Procedure article 1312 provides:
      Except as otherwise provided in the second paragraph hereof, every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is applicable.
      No service on the adverse party need be made of a motion or petition for an appeal, of a petition for the examination of a judgment debtor, of a petition for the issuance of garnishment interrogatories in the execution of a final judgment, or of any pleading not required by law to be in writing.

      .The judgment dismissing the third party demand was filed on April 14, 2015 and signed by jhe district court on April 13, 2015. The inconsistency between the filing date and signing date of the judgment is not explained in the records.

      . A person with interest may show such nullity in collateral proceedings at any time and before any court, for' absolutely null judgments are not subject to the venue and the delay requirements of the action of nullity. Nethken v. Nethken, 307 So.2d 563, 565 (La. 1975); Knight v. Sears, Roebuck & Co., 566 So.2d 135, 137 (La. App 1st Cir.), writ denied, 571 So.2d 628 (La. 1990).

      . ’ On May 2, 2016, Deutsche Bank and Mayo filed a "Joint Motion For/And Judgment of Dismissal, which the trial court signed the same date dismissing the Deutsche Bank-suit with prejudice.

      . The record does not contain a copy of the opposition to the exception of prescription filed by Mayo. An appellant is charged with the responsibility of completeness of the record for, appellate review, and the inadequacy of the record is imputable to her. See Niemann v. Crosby Development Co., LLC, 2011-1337 (La. App. 1st Cir. 5/3/12), 92 So.3d 1039, 1044. Nevertheless, Mayo’s arguments in opposition to the exception of prescription can be discerned from the transcript of the hearing on the exception.

      . A rule to show cause was issued by this court on December 27, 2016, noting that the district court’s July 25, 2016 judgment appeared to lack decretal language required of an appealable judgment. In response, the district court properly issued an Amended Judgment signed January 23, 2017, clarifying that the Hutchisons’ exception of prescription was sustained, all claims in the case were dismissed, and that the judgment was. a final judgment,

      . The plaintiff does not argue on appeal that the note was interrupted by the filing of the ' third party demand under La. C.C. art, 3462.

      . Louisiana Code of Civil Procedure article 934 provides:
      When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court, If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.