author: CRAIN, J. Welch, J.,

text:
    Laurence F. GILLIO v. The HANOVER AMERICAN INSURANCE COMPANY, Granite State Insurance Co., Champagne Beverage Co., Champagne Beverage Co. Inc., State Farm Mutual Automobile Insurance Co., and Kris A. Sagona
    NO. 2016 CA 0640
    Court of Appeal of Louisiana, First Circuit.
    JANUARY 31, 2017

      Darla L. D’Amico, Slidell, Louisiana, In Proper Person
    G. Brice Jones, Paul D. Hesse, Slidell, Louisiana, Attorneys for Appellee, Jones Lagarde, LLC
    Carole G. Gillio, Slidell, Louisiana, Attorney for Appellee, Gillio Law Firm, APLC
    Ellen C. Badeaux, Covington, Louisiana, Attorney for Appellees, Frank J. D’Amico Sr. and Frank J. D’Amico, APLC
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

12Parla L. D’Amico appeals a judgment from a concursus proceeding, which divided an attorney fee earned in connection with the settlement of an underlying personal injury suit. We affirm.

FACTS

Laurence Gillio sustained serious personal injuries in a motor vehicle accident on April 24, 2009. He retained his wife, Carole Gillio, and the Gillio Law Firm, APLC, on a contingency fee basis to represent him in his suit for damages. Soon after suit was filed, Laurence entered a contingency fee contract with additional counsel Darla D’Amico, Frank D’Amico, and Frank J. D’Amico, A Professional Law Corporation. In 2012, Laurence terminated the services of the D’Amicos and retained attorneys G. Brice Jones, Ross F. La-garde, and Paul D. Hesse, of the Jones Lagarde, LLC law firm on a contingency fee basis. Carole, Darla, Frank, and the D’Amico,law firm intervened in the personal injury proceedings to recover their respective shares of any attorney fees.

The personal injury suit was settled for $1,900,000 and the settlement funds were deposited into the registry of the court. Jones Lagarde filed a eoncursus petition to obtain a division of the attorney fee. After a trial, the trial court enforced Carole’s original 40% contingency fee contract, awarded a total attorney fee of $760,000, and found that Darla was terminated for cause. The trial court then awarded Jones Lagarde $633,270, plus stipulated expenses, reflecting a 33 1/3% fee based on the Jones Lagarde contingency contract. The remaining attorney fee of $126,730 was divided between Carole and the D’Am-ico firm, with 60% being awarded to Carole and 40% to the D’Amico Arm. Carole’s award ^totaled $76,038, plus stipulated expenses. The D’Amico firm’s $50,692 share was divided evenly between Darla and Frank.

Darla appeals, contending that the trial court erred in finding that she was discharged for cause and abused its discretion in awarding her a $25,346 attorney fee. She also challenges the award to Frank, arguing that he is entitled to nothing. Finally, she contends that the trial court erred in failing to award her stipulated expenses.

DISCUSSION

A client has an absolute right to discharge his attorney at any time, with or without cause, subject to liability for payment of a reasonable attorney fee. See In re Jones, 02-3131 (La. 10/21/03), 859 So.2d 666, 670; Succession of Wallace, 574 So.2d 348, 351-52 (La. 1991); Francis v. Hotard, 00-0302 (La.App. 1 Cir. 3/30/01), 798 So.2d 982, 985. A client who retains successive attorneys pursuant to contingency fee contracts owes only one contingency fee, determined according to the highest ethical percentage agreed to by the client in any of the contingency fee contracts executed, which is then allocated among the various attorneys. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La. 1978) (on rehearing). Factors to guide the allocation of fees between discharged and subsequent attorneys are set forth in Rule 1.5 of the Code of Professional Responsibility as follows:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation and ability of the lawyer or lawyers performing the services; '
(8) whether the fee is fixed or contingent.

See Saucier, 373 So.2d at 116. If an attorney is discharged for cause, “the court should consider the nature and gravity of the cause which contributed to the dismissal and reduce by a percentage amount the portion discharged counsel otherwise would receive after the Saucier allocation.” O’Rourke v. Cairns, 683 So.2d 697, 704 (La. 1996). The trial court has great discretion in setting an attorney fee, and its award will not be disturbed on appeal absent a showing of an abuse of discretion. In re Succession of Bankston, 02-0548 (La.App. 1 Cir. 2/14/03), 844 So.2d 61, 64, writ denied, 03-0710 (La. 5/9/03), 843 So.2d 400.

The testimony at the concursus trial established that Laurence’s case was complex. The accident occurred on Gause Boulevard in Slidell, a four-lane roadway, as Gillio was driving westbound in the right hand lane. A beer truck was also traveling westbound and attempted to turn right into a narrow driveway, resulting in a collision with Laurence’s vehicle. Carole arrived at the scene soon after the accident, took photographs, and witnessed the driver of the beer truck speaking to an alleged witness about what happened. Being suspicious, she hired an accident scene investigation expert who preserved critical evidence of the scene. Because of conflicting stories as to how the accident happened, the driver of the beer truck was not ticketed.

Carole, on behalf of her husband, filed suit for damages, and later amended it to add her consortium claim. Approximately fifteen months after the accident, Darla was retained as co-counsel. Darla testified that she filed a supplemental and amending petition; Carole testified that she prepared discovery requests and interrogatories, which Darla reviewed. Laurence prepared chronologies and gathered medical data. Darla testified that she had lengthy meetings with Laurence and conducted extensive legal research regarding his medical issues.

Carole and Darla did not take any depositions, but attended Laurence’s deposition. Darla testified that she spent three days preparing for Laurence’s deposition. Darla claimed to have worked steadily with Carole, but did not keep time sheets reflecting her billable hours. She estimated that she spent 625 to 700 hours working on the case, including time spent on her attorney fee intervention.

Jones Lagarde entered the case in April 2012, approximately three years after the accident, and received two boxes of file material from the D’Amico law |f,firm. No settlement offers were outstanding at that time. A mediation in December 2012, resulted in a settlement offer of $100,000.

Brice Jones testified that he conducted discovery, including taking twenty-three depositions related to liability and medical issues. He explained that the files he received from the D’Amico law firm contained incomplete medical records and little usable data. Jones testified that his office worked with the insurance companies to obtain a complete medical record, which ultimately involved contact with sixty-seven different medical providers. Jones Lagarde developed a file consisting of eighteen boxes of documents with two hundred fourteen subfiles, including sixty-seven from the medical providers.

The beer truck driver had been fired by the company he was driving for at the time of the accident, so Jones hired a private investigator to find him and serve him with suit papers. Jones explained that during the course of discovery, his firm learned that the driver of the beer truck was a reserve police officer who had complaints made against him. He subpoenaed the driver’s supervisor to have him testify relative to the driver’s character and credibility. Jones testified that he was able to get the truck driver and the eyewitness, who he got to contradict his previous statement, to admit that the beer truck was not moved after the accident. The police officer at the accident scene confirmed that fact. Jones testified that the admissions of these witnesses were critical because he was then able to use photographs taken by Carole and the evidence preserved by the accident investigation expert to establish that the beer truck was entirely in the left lane of the two westbound lanes when it began its right turn into the driveway, thus causing the collision with Laurence. According to Carole, who was accepted by the trial court as an expert attorney, it was Jones Lagarde’s representation that ultimately resulted in the $1,900,000 settlement.

|7Having considered the Saucier factors, we find no error in the trial court’s apportionment of the attorney fee. Al though Darla testified that Laurence’s case was “high maintenance” and that she spent hours meeting with Laurence, the record supports the trial court’s conclusion that the substantial settlement that was recovered was directly attributable to the work performed by Jones Lagarde. In contrast, Darla’s estimate of the time she spent working on the file was called into question by other testimony, as well as the state of the file when it was produced to Jones Lagarde.

Darla also contends the trial court erred in finding that she was terminated for cause. Although the trial court did make that finding, it allocated the attorney fee based on the relevant Saucier factors, without reducing the allocation to the D’Amico firm for Darla’s discharge for cause. See O’Rourke, 683 So.2d at 704. Consequently, we need not address the termination for cause issue. See Richardson v. Bridgefield Cas. Ins. Co., 14-1587 (La.App. 1 Cir. 8/10/15), 181 So.3d 61, 68 (recognizing that appellate courts review judgments, not reasons for judgments).

Darla next challenges the trial court’s determination that Laurence employed both her and her father, Frank, as well as the decision to split their attorney fee equally between them. Darla claims that Frank performed no work on the case and should earn no fee. Frank argued that he and Darla were de facto partners, making it proper to split the attorney fee equally.

According to Laurence’s contingency fee contract, he retained “Frank J. D’Amico, Darla L. D’Amico, and Frank J. D’Amico, A Professional Law Corporation” as his attorneys. Although Darla enrolled as counsel of record, her motion to enroll was submitted by Frank J. D’Amico, A Professional Law Corporation, with the names of both Darla and Frank appearing under the signature 1 8line. The evidence also includes letters signed by Darla on the D’Amico law firm letterhead, which lists both Frank J. D’Amico and Darla D’Amico as attorneys.

Darla testified that she started working for her father while in high school and continued after she graduated law school in 1989, until November of 2013, after she was terminated from Laurence’s case. Darla explained that although she had no employment contract, and for decades did the majority of the work, she and Frank operated under a verbal agreement to split attorney fees equally. Frank paid all overhead, including Darla’s malpractice premiums, until she was terminated.

Evidence was also presented of a similar attorney fee dispute between Darla and Frank from the federal district court. In written reasons in that case, the magistrate judge explained that Darla had argued that she and her father created a joint venture under Louisiana law, which entitled her to at least 50% of the disputed attorney fee, although she sought more based on the work she had done. Finding none of the Saucier factors merited a different result, and no need to upset their customary fee-splitting practice, the magistrate judge recommended an equal split of the attorney fee.

Frank did not testify at the concursus trial. Although he was present, his attorney called other witnesses and presented evidence in support of his claim. At the conclusion of her presentation of evidence, Frank’s attorney submitted his case without Frank testifying, explaining, “out of fairness to my client, at this point, I’m going to suspend our case. I just don’t think he can take any more of this. And he agrees with me.” Darla attempted to call Frank under cross-examination, but the trial court denied her request. The trial then concluded.

Darla argues that the trial court’s refusal to allow her to call and cross-examine Frank was reversible error, however, the record does not reflect that Frank was subpoenaed for trial. His testimony, in any form, was never admitted into evidence. Instead, he submitted his claim without presenting his own testimony—Isa strategic decision that carried the risk of whether he would meet his burden of proof. Then, after noting the late hour several times, the trial court declined Darla’s request to call and cross-examine Frank. Darla was, however, afforded the opportunity to cross-examine every witness who actually testified.

The trial court is vested with great discretion in controlling the conduct of trial and the presentation of evidence. See La. Code Civ. Pro. arts. 1631 and 1632; Shexnayder v. Bridges, 15-0786 (La.App. 1 Cir. 2/26/16), 190 So.3d 764, 772. Louisiana Code of Evidence article 103A provides that error may not be predicated upon a ruling admitting or excluding evidence unless a substantial right of the party is affected. Reversal by an appellate court is not warranted unless the particular ruling complained of was erroneous and the error prejudiced the complainant’s cause. Maddox v. Bailey, 13-0564 (La.App. 1 Cir. 5/19/14), 146 So.3d 590, 594. We find no abuse of the trial court’s great discretion in ruling that Frank was not required to testify.

We also find no error in the decision to split the attorney fee equally between Darla and Frank. The record establishes that Darla and Frank were engaged in a joint venture throughout their involvement in this case. Although Darla claims that Frank performed no legal work on the case, conflicting testimony was presented through employees of the D’Amico’s firm. Tammy Minor, a legal secretary for Frank, testified that Frank discussed the ease with Darla, assisted her, performed research at the Louisiana Supreme Court’s law library, and provided direction with regard to the case. Ashley Springmann, a legal assistant for the D’Amico firm, testified that in general, Frank directed the work in the office and spent a great deal of time conducting research at the law library. The record reasonably supports the trial court’s equal division of the fee between Darla and Frank.

ImFinally, Darla argues that the trial court erred when it failed to award her stipulated expenses, contending that the trial court awarded stipulated expenses to the other attorneys involved. She asserts that the parties stipulated that her expenses were $1,756.49, but the trial court, without justification, failed to include them in her award. She also seeks $4,870.55 for her appeal costs.

At the beginning of the concursus trial, the parties stipulated to outstanding “file expenses” of $71,612.07 by Jones Lagarde, $26,848.45 by the Gillio law firm, and $2,853.09 by the D’Amicos, which were awarded to Frank. After Darla represented that she incurred $1,756.49 for her intervention to recover her attorney fee, it was clarified that the stipulated expenses did not include any intervention costs. Contrary to Darla’s arguments on appeal, the trial court did not award any party their costs associated with the concursus proceeding as part of their expenses, instead ordering each party to bear their own costs.

The trial court may render judgment for costs, or any part thereof, as it may consider equitable, and its assessment of costs will not be reversed on appeal in the absence of an abuse of discretion. La. Code Civ. Pro. art. 1920; Glencoe Educ. Foundation, Inc. v. Clerk of Court and Recorder of Mortgages for Parish of St. Mary, 10-1872 (La.App. 1 Cir. 5/6/11), 65 So.3d 225, 234-35, writ denied, 11-1142 (La. 10/21/11), 73 So.3d 383. The assessment of costs in a concursus proceeding is governed by Louisiana Code of Civil Procedure article 4659, which provides:

When money has been deposited into the registry of the court by the plaintiff, neither he nor any other party shall be required to pay any of the costs of the proceeding as they accrue, but these shall be deducted from the money on deposit. The court may award the successful claimant judgment for the costs of the proceeding which have been deducted from the money on deposit, or any portion thereof, against any other claimant who contested his right thereto, as in its judgment may be considered equitable.
In all other instances, the court may render judgment for costs as it considers equitable.

|nDarla presented no evidence that she was required to pay costs of the concursus proceeding in violation of Article 4659. She also presented no evidence to substantiate her claim that she is entitled to $1,756.49 in connection with her intervention to recover an attorney fee. Based on the record before us, the trial court did not abuse its discretion in refusing to award $1,756.49 to Darla.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to Darla L. D’Amico.

MOTION TO STRIKE DENIED; EXCEPTION DISMISSED; JUDGMENT AFFIRMED.

Welch, J.,

concurs.

| 1 While I agree with the result reached by the majority, I believe that the trial court erred in refusing to allow Darla D’Amico to call Frank D’Amico, Sr. as a witness at trial. However, I believe that the error was harmless.

Therefore, I respectfully concur.

      . The record establishes that Frank X D’Ami-co is actually Frank J. D'Amico Sr.; however, we refer to him as Frank X D’Amico, according to the language of the contract for legal representation.

      . Frank and Frank D'Amico, APLC, have filed an appellate brief listing assignments of error, which generally echo those urged by Darla, and seek an increase in the attorney fee. Because Frank and Frank D’Amico, APLC neither filed their own appeal, nor answered Darla’s appeal, Darla filed an ex parte motion to strike their brief. To obtain a beneficial modification of the trial court’s judgment, a party must either appeal independently or answer another party’s appeal. See La. Code Civ. Pro. art. 2133; In re Succession of Seal, 15-0855 (La.App. 1 Cir. 12/23/15), 185 So.3d 791, 793 n.2. Frank and Frank D’Amico, APLC have not appealed or filed an answer to Darla’s appeal. We deny the motion to strike, but consider the brief as one filed by an appellee, and will not address the assignments of error raised therein.
      In response to Darla’s motion, Frank and Frank D'Amico, APLC filed an exception of no right of action, arguing that Darla’s “lot is cast with [Frank's,]” and Darla has no right to dismiss or strike their brief. Because we have denied the motion to strike, the exception is dismissed as moot. Frank and Frank D’Amico, APLC, also seek sanctions for frivolous appeal. However, since they have not appealed or answered the appeal, their request is not properly before this court and will not be considered. See St. Philip v. Montalbano, 16-0254 (La.App. 1 Cir. 10/31/16), 206 So.3d 909, 916, 2016 WL 6426467. Finally, Frank and Frank D’Amico, APLC seek sanctions against Darla pursuant to Louisiana Code of Civil Procedure article 863. However, the ability to impose Article 863 sanctions is limited to the trial court; we cannot address such a request on appeal. Trahan v. Trahan, 16-0108 (La.App. 1 Cir. 9/16/16), 203 So.3d 447, 454.

      .This court granted Darla leave to file and attach exhibits to each of the briefs that she filed in response to the briefs of the appellees, However, as an appellate court, our judgment must be rendered upon the record on appeal. La. Code Civ. Pro. art. 2164. We have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Neimann v. Crosby Development Co., L.L.C., 11-1337 (La.App. 1 Cir. 5/3/12), 92 So.3d 1039, 1044. Appellate briefs are not part of the record, and an appellate court has no authority to consider on appeal facts referred to in such briefs, or in exhibits containing matters that are not in the pleadings or evidence, as they are outside the record. Niemann, 92 So.3d at 1045. Thus, although Darla was granted leave to attach the exhibits to her brief, we have no authority to consider any of those exhibits that were not filed into the record below as evidence. See Id.


source: Caselaw Access Project

author: Judge Madeleine M. Landrieu

license: Public Domain

text:
    STATE of Louisiana v. Kenneth HALLEY
    NO. 2016-KA-0713
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 8, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, LA 70119 COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Madeleine M. Landrieu

_JjOn December 9, 2015, a jury returned a verdict finding Kenneth Halley and John Chambers each guilty of the April 5, 2005 second degree murder of Joseph Lucien. Although jointly tried, each defendant has filed a separate appeal. After the disposition of post-trial motions filed by Mr. Halley and after the expiration of all legal delays, Mr. Halley was sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence. It is from this conviction and sentence that Mr. Halley now appeals.

ASSIGNMENT OF ERROR

In his sole assignment of error, Mr. Halley claims his right to cross-examination under the Confrontation Clause of the Sixth Amendment was violated when the trial court allowed into evidence a statement made by Mr. Halley’s co-defendant, Mr, Chambers, which implicated Mr. Halley in this shooting, Mr. Chambers did not testify at trial. The statement was admitted through the testimony of another witness, A.M. For the reasons that follow, we find this assignment of error to be without merit,

^STATEMENT OF THE CASE

On the morning of April 5, 2005, Detective Ernest Rome of the New Orleans Police Department responded to a report of a homicide on the 2300 block of Alabo Street. When he arrived on the scene, Det. Rome observed the victim, with apparent gunshot wounds, lying in an alley next to a house. EMS arrived a short time later, and medical personnel pronounced the victim dead at the scene. The victim was later identified as Joseph Lucien.

Detective Rome and other responding officers cordoned off the crime scene and canvassed the area for witnesses and evidence useful to the investigation. No witnesses were forthcoming. Later that day, two witnesses—R.R. and E.M.—arrived at the police station and met with Det. Rome. As a result of the statements given by R.R. and E.M. and an identification made by them, Det. Rome obtained arrest warrants for both Kenneth Halley and John Chambers. The defendants were arrested the day after the shooting, but no charges were filed at that time because pertinent witnesses refused to testify.

According to the trial testimony of an Assistant District Attorney, his office reviewed the case again in 2013. After further investigation, the case was presented to a grand jury, which returned an indictment against both Mr. Halley and Mr. Chambers in August of 2013. The case proceeded to trial in December of 2015.

DISCUSSION

Before addressing the assignment of error raised by Mr. Halley, we first note an error patent on the face of the record.

IsThe prosecution of an offense punishable by death or life imprisonment, such as second degree murder, shall be instituted by grand jury indictment. La.C.Cr.P. art. 382(A); La. R.S. 14:30.1(8). The indictment must have been endorsed “a true bill,” signed by the Grand Jury Foreman and returned into the district court in open court. La. C.Cr.P. art. 383. The record in this appeal contains the front, but not the back, of the bill of indictment where the proper endorsement and signature would appear. However, the trial court minutes and the list of the Grand Jury Return of Indictments contained in the record indicate the indictment was indeed returned as a “true bill” in open court and properly signed by the foreperson of the grand jury. Thus, we find this patent error to be harmless.

Turning now to Mr. Halley’s sole assignment of error, we first note that a defendant cannot avail himself of. an alleged error without having made a contemporaneous objection stating the specific ground of the objection, and he is limited on appeal to that.ground articulated at trial. La. C.Cr.P. art. 841(A); State v. Martello, 98-2066, p. 5 (La.App. 4 Cir. 11/17/99), 748 So.2d 1192, 1197, citing State v. Buffington, 97-2423, p. 9 (La.App. 4 Cir. 2/17/99), 731 So.2d 340, 346, quoting State v. Chisolm, 95-2028, p. 6 (La.App. 4 Cir. 3/12/97), 691 So.2d 251, 255., “One purpose of the contemporaneous objection rule is to require counsel to call an error to the judge’s attention at a time when the judge can correct the error.” State v. Arvie, 505 So.2d 44, 47 (La. 1987).

Mr. Halley did not file any motions objecting to the admissibility of Mr. Chambers’ statement, nor did he lodge an objection at the time the testimony was elicited. Accordingly, he cannot now complain. Nevertheless, even had the issue |4been reserved for appellate review, Mr. Halley’s assignment of error would be without merit because wé find the statement at issue to be “non-testimonial” and harmless.

The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings. See Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923, 928 (1965). The confrontation clause of the Louisiana constitution specifically and expressly guarantees each accused the right “to confront and cross-examine the witnesses against him.” La. Const, art. 1, § 16.

“The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316-316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (quoting 5 J. WIGMORE, EVIDENCE § 1395, p. 123 (3d ed.1940)). Cross-examination is the principal means by which believability and truthfulness of testimony are tested. Subject to the discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, or discredit, the witness. See Davis v. Alaska, 415 U.S. at 316, 94 S.Ct. at 1110; State ex rel. Nicholas v. State, 520 So.2d 377, 380 (La. 1988); State v. Hillard, 398 So.2d 1057, 1059-1060 (La. 1981).

The United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), is the starting point for any analysis regarding the admissibility of hearsay testimony in light of the protections afforded defendants by the Sixth Amendment of our Constitution.

|f“[T]he principal evil at which the Confrontation Clause is directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused [at trial].” Id., p. 50, 124 S.Ct. at 1363. As a result, “[w]here testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id., p. 68, 124 S.Ct. at 1374.

In State v. Norah, 2012-1194 (La.App. 4 Cir. 12/11/13), 131 So.3d 172, writ denied, 2014-0084 (La. 6/13/14), 140 So.3d 1188, and writ denied, 2014-0082 (La. 6/20/14), 141 So.3d 287, this court held that inculpa-tory statements made by a jointly-tried, non-testifying co-defendant during a jailhouse telephone call to a friend during booking were non-testimonial and did not trigger the Confrontation Clause. In reaching that conclusion, this court reasoned:

The contours of the Confrontation Clause’s relevance in the inclusion or exclusion of certain hearsay statements at trial are defined by the term “witness” in its text. Id. at 51, 124 S.Ct. 1354. A “witness” is one who “bears testimony.” Id. “Testimony” is “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. (internal punctuation omitted). Thus, a statement must be “testimonial” in nature for the procedural protections set forth in Crawford to apply. Whether a statement is “testimonial” has proven to be jurisprudentially enigmatic. The U.S. Supreme Court has abstained from too rigidly defining the parameters of this term, utilizing instead a fluid, situational approach.

Id., p. 18,131 So.3d at 186.

In Michigan v. Bryant, the Court provided a framework to assist lower courts in determining whether a statement qualifies as testimonial. See 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). The Court emphasized that “the relevant inquiry is ... the purpose that reasonable participants would have had, as ^ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.” Id., p. 360, 131 S.Ct. at 1156.

To give context to the statement complained of, we offer a further review of the facts presented to the jury.

R.R., one of the witnesses who gave a statement to Det. Rome on the day of the shooting, testified at trial. He testified that he lived in the Lower Ninth Ward on Alabo Street most of his life, and he and the victim were neighborhood friends. R.R. also knew Kenneth Halley and had met John Chambers through Halley. Recounting the day Mr. Lucien was killed, R.R. testified that his girlfriend dropped him off at his grandmother’s house on Alabo Street. R.R. could not remember any particulars of the shooting or its aftermath. He said he was testifying at the trial involuntarily and only because he had been subpoenaed and arrested. He acknowledged that he had gone to the police station after the shooting but did not remember telling the police he had been in the 2300 block of Alabo Street at the time of the shooting.

The State played and introduced into evidence a recording of a statement given by R.R. to Detective Rome on the day of the shooting. In that statement, R.R. said he and others were sitting together on a porch in the 2300 block Alabo Street on April 5, 2005 when the victim walked up and told them he had beaten up a man named Lloyd at Wagner’s Market. About ten minutes later, Kenneth Halley, John Chambers, and two other men, M.M. and Lloyd, drove up in a blue Ford Explorer. R.R. said the two-door Explorer was “owned by L.C.’s mother.” (L.C. was a neighborhood friend known to most of the witnesses who testified. An investigator testified that he was able to corroborate that A.C. owned the Explorer.)

|7The defendants and their two passengers drove past the house on Alabo Street, circled back and returned to the house. R.R. watched as Kenneth Halley, who was sitting in the front passenger seat, jumped from the vehicle armed with an AK-47 and shot the victim once. R.R. yelled at the occupants of the Explorer to leave the neighborhood. As Mr. Halley got back into the Explorer, John Chambers, who was driving the Explorer, exited the vehicle and also shot the victim with an AK-47. R.R. called 911 and attempted to aid the victim; however, the victim died on the scene. When the police arrived, R.R. directed them to the victim’s body and related the facts of the shooting to the officers. R.R. said the victim would probably have lived if he had not been shot a second time. R.R. identified a picture of Kenneth Halley as one of the shooters, pointing out Mr. Halley’s eight gold teeth.

R.R.’s statement to police described John Chambers as a tall, thin, red male with a gold plate in his mouth. R.R. said Mr. Chambers lived in a black and white house on Deslonde Street. Finally, R.R. said he feared for his life if the police did not arrest John Chambers, Kenneth Halley, M.M. and Lloyd.

E.M. testified that he had lived in the Ninth Ward his entire life and knew both Kenneth Halley and John Chambers. At the time of the shooting, E.M. lived on Reyes Street and considered the victim a neighborhood friend. E.M. recounted that on April 5, 2005, at about 10:00 a.m., he, the victim and R.R. were seated on a porch in the 2300 block of Alabo Street. About forty-five minutes later, a two-door, blue Explorer stopped in the street in front of where they were seated. Kenneth Halley stepped out of the car and shot the victim once with a rifle. Everyone ran. Mr. Halley got back in the Explorer, which then moved forward a bit and stopped. As E.M. was walking back to the scene, he heard a second shot Rand observed Mr. Chambers running back to the Explorer. Mr. Chambers had shot the victim with the same rifle Mr. Halley had used. Immediately afterwards, E.M.’s father drove him to the Fifth District Police Station to give a statement. E.M. identified Mr. Halley and Mr. Chambers as the men who had shot and killed the victim.

A.M. was then called to testify. He testified that he, the defendants (both Mr. Chambers and Mr. Halley) and the victim were childhood friends from the Ninth Ward. One day, in 2005, he was on the medical tier of Orleans Parish Prison at the same time as Mr. Chambers. At that time, Mr. Chambers told A.M. he was in prison for the shooting death of Joseph Luden, Mr. Chambers told A.M. that the victim had gotten into a fight with “Lloyd,” one of the defendants’ friends. Shortly after the fight, both Mr. Halley and Mr. Chambers drove through the neighborhood looking for the victim. When the defendants spotted the victim sitting on a porch on Deslonde Street, they jumped from the car, a Ford Explorer, and took turns shooting at the victim with an AK~ 47. Mr. Chambers told A.M. that the victim had started the fight. A.M. further testified that in 2011, he had sent a letter to NOPD revealing to them what Mr. Chambers had told him back in 2005. His letter was introduced into evidence.

A.M. denied having seen any news reports about the shooting, saying the only information he had received had come directly from Mr. Chambers. Although A.M. had also seen Mr. Halley in prison at the time he spoke with Mr. Chambers, A.M. said Mr. Halley did not mention the shooting. A.M. identified both defendants at trial.

Pursuant to further questioning, A.M. identified M.M. as his foster brother, who also grew up with the defendants. A.M. testified that he also knew L.C.

|3On cross-examination, A.M. testified he was neither promised nor did he expect to receive any consideration from the federal government or the state for his testimony in this case, or any other case. Defense counsel questioned A.M. about the letter A.M. had written to the NOPD regarding this case in which A.M. had claimed “[he and his boys] would go all out, and f— the city up.” A.M. explained he had not actually written the letter but had another inmate write it because that inmate was more educated than he. Further, A.M. said those words were the inmate’s and not his own, and that the inmate was referring to his own knowledge of crimes that had occurred in the Magnolia Housing Development. A.M. claimed the inmate told him if he had anything to put in the letter about other crimes, he better do so because if A.M. withheld information, the federal government would charge him with conspiracy.

In support of A.M.’s testimony, the state called Blake Arcurie, General Counsel Risk Manager with the Orleans Parish Sheriffs Office, who testified he kept all inmate records for the Sheriffs Office. He had reviewed the lock up records of Mr. Halley, Mr. Chambers and A.M. for April and May of 2005. According to the inmate location inquiry Arcurie had run on those individuals, all three had been housed in Orleans Parish Prison during the same period.

First Assistant District Attorney Gray-mond Martin testified he reviewed the 2005 homicide of Joseph Lucien at the time it occurred. Martin noted that although Kenneth Halley and John Chambers were arrested for the homicide, the case was refused for prosecution at that time because the witnesses refused to testify. He added that in 2013, the case was reviewed once again, witnesses were located, evidence was re-examined, and ultimately, the case was presented to the ImGrand Jury, which returned an indictment. After the grand jury returned the indictment, the District Attorney’s office received the letter from A.M.

A.M.’s chance encounter with a Mend in prison that led to a casual conversation about what each was doing in prison, cannot, by any objective standard, be considered testimonial. His statement was not made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. See Crawford, supra, 541 U.S. at 51-52, 124 S.Ct. at 1364. Thus, the assignment of error is without merit.

We further note that confrontation eiTors are subject to a Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Williams, 2002-1406 (La. 4/9/03), 844 So.2d 832; State v. Henderson, 2013-0526 (La.App. 4 Cir. 2/19/14), 136 So.3d 223.

The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Delaware v. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438.

The jurisprudence provides that a verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993). There is more than sufficient evidence in this record, ^disregarding the statement of Mr. Chambers, to establish Mr. Halley’s guilt beyond a reasonable doubt. Two witnesses who knew both defendants and the victim were eyewitnesses to the shooting. Mr. Chambers’ statement, offered through the testimony of A.M., was merely cumulative. Thus, if Mr. Halley had preserved this issue for our review, and even if the statement were testimonial, we would find the error harmless.

CONCLUSION

For the reasons stated above, we affirm the defendant’s conviction and sentence.

AFFIRMED

      . Mr. Chambers' appeal bears docket number 2016-KA-0712 in this court.

      . In an effort to protect the privacy of the witnesses in this case, who testified under fear of retaliation, they are referred to by their initials rather than their full names.

      . Warrants were also obtained to search their residences, but nothing related to the-crime was found at either residence.

      . The State properly and timely filed a Notice of Intent to introduce an inculpatory statement made by the defendant(s). See, La. C.Cr.P. art 768,


author: Judge Terri F. Love LEDET,

text:
    Philip SHELTON v. Nancy PAVON
    NO. 2016-CA-0758
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 15, 2017

      D. Douglas Howard, Jr., Jonathan C. Pedersen, HOWARD & REED, 839 St. Charles Avenue, Suite 306, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE
    Charles R. Jones, Charles P. Ciaccio, FRANK J. D’AMICO, JR., APLC, 4608 Rye Street, Metairie, LA 70006, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Regina Bartholomew Woods)
   Judge Terri F. Love

|'iDefendant, Nancy Pavón (“Ms. Pa-vón”), appeals the trial court ruling that granted plaintiff Phillip Shelton’s (“Dr. Shelton”) special motion to strike Ms. Pa-von’s reconventional demand and that awarded attorney fees and costs to Dr. Shelton as the prevailing party on the motion to strike. We find Dr. Shelton’s petition does not involve a public issue, but rather, a private matter between private parties. Thus, La. C.C.P. art. 971 does not apply. Further, the ruling on the motion to strike is not designated a final judgment, does not name the party against whom the ruling is ordered, or specify what relief is granted. We, therefore, convert the appeal to a writ, reverse the trial court ruling on the special motion to strike, and remand the matter- for a determination of reasonable attorney fees and costs in Ms. Pavon’s favor as the prevailing party pursuant to La. C.C.P. art. 971(B).

PROCEDURAL HISTORY AND BACKGROUND

Dr. Shelton and Judith Shelton (“Mrs. Shelton”) were married in November 2001. Mrs. Shelton owned a life insurance policy which named Dr, Shelton as the beneficiary. However, Dr. Shelton learned after his wife died that the beneficiary on her life insurance policy had changed from him to Nancy Pavón, Mrs, Shelton’s former paralegal and friend. In November 2013, Dr. Shelton filed a petition to |2nullify the change of beneficiary. He alleged that Mrs. Shelton’s signature authorizing the change of beneficiary was obtained through fraud, in the form of forgery, and undue influence by Ms. Pavón. Ms. Pavón filed an answer and reconventional demand, claiming that Dr. Shelton’s petition was defamatory and that she be awarded damages.

Dr. Shelton subsequently filed a special motion to strike pursuant to La. C.C.P. art. 971. In opposition, Ms. Pavón argued for summary dismissal of the special motion to strike because as a matter of law Dr. Shelton’s petition does not involve a public issue. After a contradictory hearing, the trial court took the matter under advisement. The trial court later granted the motion to strike and awarded attorney fees and costs in favor of Dr. Shelton as the prevailing party. Thereafter, Ms. Pavón filed a motion for new trial. The trial court denied a new trial and granted a request for designation as a final appealable judgment. Ms. Pavón files the instant appeal.

JURISDICTION

We begin by addressing a procedural matter as to this Court's jurisdiction on appellate review. While the January 27, 2016 judgment granted the special motion to strike and awarded Dr. Shelton reasonable attorney fees and costs, issues remain between the parties. The judgment granting the motion to strike is not designated a final appealable judgment. The trial court designated the denial of the motion for new trial as a final judgment; however, the denial of a motion for new trial is not subject to designation as a final judgment. La. C.C.P. art. 1915. Additionally, the January 27, 2016 judgment does not name the party against whom the ruling is ordered and does not specify the relief granted. See La. C.C.P. art. 1841; Bd of Sup’rs of LSU v. Mid City Holdings, 14-0506, p. 2-3 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910. The motion for appeal was filed within 30 days of the judgment. Thus, the time period for filing an application for supervisory writ had not prescribed. Therefore, we invoke our supervisory jurisdiction and convert the appeal to a writ. Id., 14-0506, p. 3-4, 151 So.3d at 911.

STANDARD OF REVIEW

An appellate court reviews special motions to strike de novo because it involves issues of law. Melius v. Keiffer, 07-0189, p. 2 (La.App. 4 Cir. 3/12/08), 980 So.2d 167, 170. The appellate court is charged with determining whether the trial court’s judgment was legally correct or incorrect. Id.

SPECIAL MOTION TO STRIKE

La. C.C.P. art. 971 was enacted “to screen out meritless claims pursued to chill one’s constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press.” Lee v. Pennington, 02-0381, p. 4 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, 1041; Melius, 07-0189, p. 2, 980 So.2d at 170. La. C.C.P. art. 971(A)(1) provides:

(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.

Id. (emphasis added).

The party filing the special motion to strike has the initial burden of proving that “the cause of action arises from an act in the exercise of his right of free speech regarding a public issue.” Melius, 07-0189, p. 3, 980 So.2d at 171, quoting Aymond v. Dupree, 05-1248, p. 7 (La.App. 3 Cir. 4/12/06), 928 So.2d 721, 727 (internal quotations omitted). If the mover meets this threshold requirement, the Uburden shifts to the party opposing the motion and must demonstrate a probability of success on the claim. Id. To determine whether the opposing party has established a probability of success on his claim, the court will “consider the pleadings and supporting \f] opposing affidavits.” La. C.C.P. art. 971(A)(2).

Dr. Shelton contends that the statutory language of La. C.C.P. art. 971 is unambiguous. He argues that a special motion to strike is the proper procedural remedy to address Ms. Pavon’s reconventional demand because his petition to nullify a change in beneficiary is one of the expressly defined speech activities protected under the statute—a written statement made before a judicial proceeding. See La. C.C.P. art. 971(F)(1)(a). He also claims Ms. Pavón cannot demonstrate a probability of success on her defamation claim. Conversely, Ms. Pavón argued that as a matter of law Dr. Shelton’s petition is not an act in connection to a public issue; thus, article 971 does not apply. Moreover, Ms. Pavón avers that a special motion to strike is the incorrect procedural mechanism to dismiss her defamation claim.

The trial court was correct in beginning its application of La. C.C.P. art. 971 by first determining whether Dr. Shelton’s petition to nullify the change of beneficiary constituted an act' in furtherance of his right to petition in connection with a public issue. The trial court relied on the definitional provisions of La. C.C.P. art. 971(F)(l)(a)-(d), setting forth the types of speech activities that constitute “[a]ct[s] 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.” La. C.C.P. art. 971(F)(1).

The trial court held that Dr. Shelton’s petition is within the class of speech activities defined by subsection (F)(1)(a) as it is a written statement made before a Injudicial proceeding. The trial court found that based on the definitional language of La. C.C.P. art. 971(F)(1)(a) Dr. Shelton met his prima facie burden under the statute. In light of our de novo review and the facts of this case, we disagree with the trial court’s interpretation of the statute and its application of La. C.C.P. art. 971(F)(1)(a).

In cases of first impression, this Court’s interpretation of article 971 focused on the probability of success factor. See Stern v. Doe, 01-0914 (La.App. 4 Cir. 12/27/01), 806 So.2d 98; Lee, 02-0381 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037. Appellate courts now interpret the statute under a burden-shifting analysis. This Court’s decisions since Stem and Lee either addressed portions of the statute inapplicable here or found the act was made in connection with a public issue. Cf., Williams v. New Orleans Ernest N. Morial Convention Ctr., 11-1412 (La.App. 4 Cir. 5/11/12), 92 So.3d 572 (finding suit involved a private dispute between private parties without discussion of statutory interpretation or legislative intent).

For this reason, we find Yount v. Handshoe, 14-919 (La.App. 5 Cir. 5/28/15), 171 So.3d 381, writ denied, 15-2302 (La. 2/19/16), 187 So.3d 462, instructive. In Yount, the Fifth Circuit examined the same issue of a trial court’s erroneous interpretation and application of article 971’s definitional provisions. Id. The Yount decision provided a comprehensive analysis of article 971’s inception that studied the legislative history, the drafters’ intent, and the statute’s application in earner decisions. These considerations form the basis of our | ^interpretation of article 971.

“Statutory interpretation begins with the language of the statute itself.” Id., 14-919, p. 7 (La. App. 5 Cir. 5/28/15), 171 So.3d at 386 (citing M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La. 07/01/08), 998 So.2d 16, 27). “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 9. “When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” La. C.C. art. 10. Generally, words are given their prevailing meaning, but “when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.” La. C.C. arts. 11 and 12.

La. C.C.P. art. 971(F)(1)(a) provides:

(F) As used in this Article, the following term 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 of the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law.

We find the language of La. C.C.P. art. 971(F)(1)(a) is ambiguous because it is susceptible to different meanings. First, the language may be read to indicate that a special motion to strike will apply to any issue made before a judicial 17proceeding. Second, the statute may be interpreted to mean that a special motion to strike will apply only to statements or writings made in connection with a public issue. The trial court applied the former interpretation; however, this reading of La. C.C.P. art. 971(F)(1)(a) leads to absurd consequences.

Under the interpretation adopted by the trial court, “any cause of action arising from any written or oral statement made in connection with any kind of government activity or proceeding would be subject to special motions to strike regardless of whether or not the statements were made in connection with a public issue.” Yount, 14-919, p. 8, 171 So.3d at 387. Interpreting subsection (F)(1)(b), the Yount court concluded that “any party could defame or invade the privacy of a person involved in a divorce proceeding, traffic violation, child custody dispute, marriage, mortgage registration, passport application, or driver’s license renewal and be immunized from legal repercussions of damage to others through the use of an extraordinary procedural remedy.” Id., 14-919, p. 8-9, 171 So.3d at 387. The same logic applies to section (F)(1)(a).

Given that the competing meanings may lead to absurd results, this Court must assess which interpretation best conforms with the purpose of the law and the will of the legislature. La. C.C.P. art. 10; Yount, 14-919, p. 9, 171 So.3d at 387. The Yount court examined the legislative history of article 971, Louisiana’s Anti-SLAPP statute. “ ‘SLAPP’ is an acronym for Strategic Lawsuit Against Public Participation, a term...to describe generally meritless suits brought by large private interests to deter common citizens from exercising their constitutional right to petition or to punish them from doing so.” Id. SLAPP suits involve civil complaints or counterclaims filed against a non-governmental individual and/or group due to “their communications to a governmental body, or the electorate on Ran issue of some public interest or concern." Id. (citing Professors George W. Pring & Penelope Canan, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L.Rev. 3 (1989)) (emphasis added).

As a result of the growing number of SLAPP suits and the inadequacy of traditional legal remedies to address the problem, states enacted legislation to create the special motion to strike. Yount, 14-919, p. 10, 171 So.3d at 387. Its purpose is “to protect comments made in connection with public rather than private issues under consideration by our governmental bodies.” 1999 La. Acts 734, § 2.

Moreover, Louisiana jurisprudence indicates that La. C.C.P. art. 971 is meant to protect speech activities pertaining to public issues. See Starr v. Boudreaux, 07-0652 (La.App. 1 Cir. 12/21/07), 978 So.2d 384 (publication of newspaper articles about sudden removal of local radio station); Melius, supra (comments made by a neighborhood association president before a zoning board against the construction of a new bar); Cf., Williams, supra (placement of an oversized photograph at security check point to ensure denial of entry was a private issue between private parties; article 971 did not apply).

In this case, the trial court relied in part on In re Succession of Carroll, 46,327 (La. App. 2 Cir. 7/20/11), 72 So.3d 384, wherein the reviewing court found the pleadings filed constituted written statements “made before a.. .judicial proceeding” pursuant to La. C.C.P. art. 971(F)(1)(a). The trial court’s reliance on Carroll is misplaced. First, the decisions of other circuits are not binding on this Court and are persuasive authority only. S. Louisiana Ethanol, LLC v. CHS-SLE Land, 14-0127, p. 18, 161 So.3d 83, 94 n. 4, writ denied, 15-0481 (La. 5/15/15), 170 So.3d 967 (citing Bridges v. Production Operators, Inc., 07-0648, p. 7 (La.App. 4 Cir. 12/12/07), 974 So.2d 54, 59. Second, while Carroll is factually similar as it involved allegations arising from pleadings made in a judicial proceeding, we decline to follow the holding in Carroll.

Carroll quotes the language of La. C.C.P. art. 971(A)(1) but stops short of citing the operative clause, “made in connection with a public issue.” Consequently, the Carroll court never engaged in the requisite analysis of whether the speech was made in connection with a public issue. Instead, the court reasoned that it is the legislature’s expressed intent “that the article be ‘construed broadly.’ ” Carroll, 46,-327, p. 13 (La.App. 2 Cir. 7/20/11), 72 So.3d 384, 391 (quoting 1999 La, Acts 734, § 2). Therefore, it applied La. C.C.P. art. 971(F)(1)(a) to conclude that the defendant met his initial burden.

It is well-settled that a statute may not be construed so broadly that it defeats the purpose for which it was enacted or lead to absurd consequences. Like Carroll, we are charged with reaching a result consistent with the legislature’s purpose of the statute. If we were to conclude that any act in furtherance of a person’s right of petition is protected such that a special motion to strike is an available procedural remedy, we would lend an interpretation to article 971 that would defeat the express intent of the statute: “to encourage participation [and] [... ] to protect comments made in connection with public rather than private issues under consideration by our governmental bodies.” 1999 La. Acts 734, § 2. Similarly, the Carroll interpretation would .render meaningless the limiting term, “in connection with a public issue.”

At the hearing, the trial court also expressed concerns that even if article 971 did not apply, as Ms. Pavón claimed, an allegation in a pleading is subject to a qualified privilege. However, the law of qualified privilege “has ho bearing on 110[mover’s] initial burden of proving his actions arose in connection with a public issue under Article 971.” Yount, 14-919, p. 13, 171 So.3d at 389. Furthermore, the Carroll interpretation obviates the'rules of qualified privilege because it would incorrectly treat a special motion to strike as an absolute privilege against liability for defamatory statements made in a judicial proceeding. The effect of this interpretation is that a defamation claim may be automatically dismissed unless the party opposing the motion to strike can prove a probability of success. The appropriate procedural remedy in that case is a motion for summary judgment.

In light of the legislative history, relevant case law, and the statutory language as a whole, we find La. C.C.P. art. 971(F)(1)(a) requires the statements made in a judicial proceeding be made in connection with a public issue. In Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983), the United States Supreme Court described speech on matters of public concern as speech “relating to any matter of political, social, or other concern to the community.” To determine whether speech is a matter of public concern, the court must consider the content, form, and context of the statement, as revealed by the entire record. Id., 461 U.S. at 147-48, 103 S.Ct. at 1690; Kirksey v. New Orleans Jazz & Heritage Found., Inc., 12-1351, p. 6 (La.App, 4 Cir. 2/27/13), 116 So.3d 664, 669.

In this case, Dr. Shelton’s petition to nullify a change of beneficiary to his wife’s life insurance policy is a private dispute involving private parties, not a matter of public concern or significance. Therefore, Dr. Shelton has not met his burden of proving that his petition is an act in furtherance of his right to petition in connection with a public issue. Accordingly, we need not determine the probability of success of Ms. Pavon’s defamation claim filed in reconvention.

1 ^DECREE

We find the trial court erred by granting Dr. Shelton’s special motion to strike and awarding him attorney fees and costs because the statements in question were not made in furtherance of his right to petition in connection with a public issue. Therefore, we reverse the trial court’s ruling. Pursuant to La. C.C.P. art. 971(B), . .a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.” Thus, we also award Ms. Pavón as the prevailing party reasonable attorney fees and costs to be determined by the trial court on remand. Yount, 14-919, p. 14, 171 So.3d at 890. Accordingly, we convert the appeal to a writ; grant the writ; and reverse the trial court’s ruling and remand for further proceedings consistent with this opinion.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; REVERSED AND REMANDED

LEDET, J., CONCURS IN THE RESULT WITH REASONS

LEDET,

CONCURS IN THE RESULT WITH REASONS

| ^though I agree with the result the majority reaches, I write separately to address the issue of the award of attorney’s fees to the appellant, Nancy Pavón. A review of the legislative history of La. C.C.P. art. 971 supports the majority’s conclusion that Ms. Pavón is a “prevailing party” to whom Article 971 mandates an award of attorney’s fees.

Before it was amended in 2004, Article 971 stated that “a prevailing defendant” on a special motion to strike “shall be entitled to recover” reasonable attorney’s fees and costs; however, a prevailing plaintiff on such motion could only recover attorney’s fees and costs if the court found that the special motion to strike was either “frivolous” or “solely intended to cause unnecessary delay.” Delta Chem. Corp. v. Lynch, 07-0431, p. 11, n. 7 (La.App. 4 Cir. 2/27/08), 979 So.2d 579, 587. The 2004 amendment to Article 971 changed the law to provide that any “prevailing party”—plaintiff or defendant—on a special motion to strike shall be awarded reasonable attorney’s fees and costs. Given this legislative history, I agree that Ms. Pavón is “a prevailing party” who, substantively, is entitled to attorney’s fees.

Procedurally, however, I have a problem with affirmatively awarding attorney’s fees to Ms. Pavón on appeal. Ms. Pavon’s brief is devoid of an |2affirmative request for an award of attorney’s fees. As a general rule, an appellate court does not grant relief that a party does not request. Following this general rule, I would simply remand this matter to the trial court for further proceedings.

Nonetheless, given Ms. Pavón is “a prevailing party” under Article 971 coupled with the mandatory language in Article 971 that the prevailing party “shall” be awarded attorney’s fees, I concur in the result reached by the majority.

      . In Yount, the plaintiff brought a defamation claim against a blogger, who published online a pornographic drawing authored by the plaintiff's son that was previously filed with the court as part of the plaintiff’s divorce proceeding. Id., 14-919, p. 3, 171 So.3d at 383. The trial court granted defendant’s motion to strike the defamation claim pursuant to La. C.C.P. art. 971(F)(1)(b); however, the Fifth Circuit reversed holding defendant’s posting was not an act made in furtherance of his right of petition in connection with a public issue. Id., 14-919, p. 14, 171 So.3d at 390.

      . Dr. Shelton points out that we previously held that there are "no ambiguities in Article 971” in Delta Chemical Corp. v. Lynch, 07-0431, p. 12, 979 So.2d 579, 587 (La. App. 4 Cir. 2/27/08). However, the primary issue in Delta was the reasonableness of the attorney fees award. Our finding addressed the scope of individuals/entities which may move for a special motion to strike and are entitled to an award of attorney fees. This Court's conclusion as to article 971 did not contemplate whether the act involved must be related to a public issue as raised in this matter.


author: JAMES F. McKAY III, CHIEF JUDGE LEDET, J,

text:
    TWO CANAL STREET INVESTORS, INC. v. The NEW ORLEANS BUILDING CORPORATION, The City of New Orleans and Mary Kay Kleinpeter-Zamora, In Her Capacity as Chief Procurement Officer, Purchasing Bureau
    NO. 2016-CA-1306
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 15, 2017

      BRAD P. SCOTT, GALEN M. HAIR, SARAH M. KALIS, SCOTT, VICNAIR, HAIR & CHECKI, LLC, 909 Poydras Street, Suite 1100, New Orleans, Louisiana 70112, COUNSEL FOR PLAINTIFF/APPELLANT
    REBECCA H. DIETZ, CITY ATTORNEY, CITY OF NEW ORLEANS, ADAM J. SWENSEK, DEPUTY CITY ATTORNEY, CHERRELL R. SIMMS, DEPUTY CITY ATTORNEY, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/AP-PELLEES, City of New Orleans and Mary Kay Kleinpeter-Zamora
    WAYNE J. LEE, J. DALTON COUR-SON, ABIGAYLE C. FARRIS, STONE PIGMAN WALTHER WITTMANN, LLC, 546 Carondelet Street, New Orleans, Louisiana 70130, COUNSEL FOR DEFENDANT/APPELLEE, New Orleans Building Corporation
    EDWARD D. WEGMANN, RICHARD J. TYLER, MICHAEL C. DREW, GRAHAM RYAN, ALLISON B. KINGSMILL, Brett S. Venn, JONES WALKER LLP, 201 St. Charles Avenue, 49th Floor, New Orleans, Louisiana 70170, RUSS M. HERMAN, STEVEN J. LANE, HERBERT A. CADE, CHARLES M. KING, Herman Herman & Katz, LLC, 820 O’Keefe Avenue, New . Orleans, Louisiana 70113, COUNSEL FOR DEFENDANTS/AP-PELLEES, Carpenter & Company, Inc., Woodward Interest, LLC and Two Canal Owner, LLC
    (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore)
   JAMES F. McKAY III, CHIEF JUDGE

hThe facts giving rise to this case arise out of the New Orleans Building Corporation’s (NOBC) decision to award the lease to redevelop the World Trade Center site located at 2 Canal Street in New Orleans, Louisiana to Carpenter & Company, Inc. and Woodward Interests, LLC (they plan to turn the building into a Four Seasons Hotel). Two Canal Street Investors, Inc. (TCSI) was another bidder for the lease. TCSI’s proposal was ranked last and it was not selected.

After its bid was rejected, TCSI was sold by its owners, Steven Peer and A1 Thompson, Jr., to Stuart Fisher for ten dollars on April 18, 2015. On April 23, 2015, TCSI filed a petition seeking a declaratory judgment that the selection process used by the NOBC was invalid; the petition was later amended to add claims for a temporary restraining order and further injunctive relief. The trial court denied injunctive relief to TCSI. This Court affirmed finding that “the record is life with evidence that the NOBC through the selection committee reasonably assessed the submissions based on the criteria set forth in the RFP,” and “the Lease Agreement with Carpenter/Woodward provides a fair and equitable return of ^revenue to the City.” Two Canal Street Investors, Inc. v. New Orleans Building Corp,, 2015-0924 (La.App. 4 Cir. 4/20/16), 193 So.3d 278.

In September 2015, the defendants discovered that Mr. Fisher was the owner of TCSI and began efforts to take his deposition. However, TCSI refused to produce Mr. Fisher even after the trial court compelled his deposition. On May 12, 2016, the defendants filed their first motion to dismiss and for sanctions. After argument on the motion but before the trial court could rule, this Court granted an emergency writ filed by TCSI and vacated the underlying order compelling Mr. Fisher’s deposition. Two weeks later, this Court reconsidered and reinstated the order compelling Mr. Fisher’s deposition. Two Canal Street Investors, Inc. v. New Orleans Building Corp., 2016-0825 (La.App. 4 Cir. 9/23/16), 202 So.3d 1003.

On September 29, 2016, the defendants again noticed Mr. Fisher’s deposition for October 19, 2016. However, on October 6, 2016, Mr. Fisher purported to resign as president of TCSI and appoint someone named Amjed Neil (or something similar to this name) from Jordan as president. Mr. Fisher also purportedly transferred all of his stock in TCSI to others. The trial court took this as a means to circumvent the order to compel.

On October 10, 2016, TCSI’s attorneys (the Davallier Law Group L.L.C. and Che-hardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes, LLP) filed a motion to withdraw as counsel of record. On October 13, the trial court held a status conference. Counsel for TCSI, counsel for the defendants, and Mr. Thompson as the registered agent and secretary of TCSI all attended. At that time! a the trial court made known that it would hold a contradictory hearing on the motion to withdraw on October 20, 2016. TCSI offered no objection to letting the lawyers withdraw. The attorneys presented several communications between them and TCSI which the court reviewed in camera. Thereafter, the trial court found there was good cause and granted the motion to withdraw.

After granting the motion to withdraw, the trial court conducted a status conference to set a trial date pursuant to La. R.S. 41:1215(D)(3)(b), which provides that trial must be held within sixty days of filing of a lawsuit. The trial court held that the sixty days under the statute should run from September 23, 2016, the date the case was remanded to the trial court, and set the trial date for November 21, 2016. The trial court also issued an order setting defendants’ no right of action exception hearing on November 7, 2016. The trial court further ordered that any writs to review the selection of the trial date or the exception hearing date had to be filed on or before October 27, 2016. Mr. Thompson was present when the court issued these dates and TCSI received notice.

On November 7, 2016, TCSI failed to appear at the hearing on the exception; a fax was sent to the trial court by Mr. Fisher saying that TCSI was in the process of retaining new counsel and asking for a continuance. Mr. Fisher is not a Louisiana attorney and the request for a continuance was not in proper form so the court did not consider it. TCSI also did not appear at the November 21, 2016 trial date. On November 21, 2016, the trial court issued a written judgment dismissing TCSI’s suit with prejudice pursuant to La. C.C.P. art. 1672. The trial court also granted the defendants’ exception of no right of action. The trial court further granted the defendants/intervenors’ motion to dismiss and motion for sanctions with prejudice pursuant to La. C.C.P. art. 1471. On November 30, 2016j 4 the law firm of Varadi, Hair & Checki LLC enrolled as counsel for TCSI and filed an appeal of the trial court’s judgment.

On appeal, TCSI raises the following assignments of - error: 1) the trial court abused its discretion by granting the motion to withdraw as attorneys of record, filed by the Davillier Law Group, L.L.C. and Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes, LLP; 2) the trial court violated plaintiffs due process rights by contemporaneously granting the motion to withdraw and setting a trial date; 3) the trial court violated plaintiffs due process rights by incorrectly applying La. R.S. 41:1215(D)(3)(c) to this case; and 4) the court abused its discretion when it granted Carpenter-Woodward’s motion to dismiss and for sanctions.

The question of withdrawal of counsel largely rests with the discretion of the trial court, and its ruling will not be disturbed in the absence of a clear showing of abuse of discretion. State v. Brown, 2003-0897, p. 6 (La. 4/12/05), 907 So.2d 1, 14; State v. Leger, 2005-0011, p. 43 (La. 7/10/06), 936 So.2d 108, 142. Furthermore, a trial court may allow an attorney to withdraw for “good cause.” La. Dist. Ct. R. 9.13(f).

TCSI’s former attorneys filed a motion to withdraw on October 10, 2016, citing a “difference of opinion” with TCSI and “other good cause” as the reasons for its withdrawal. At an October 13, 2016 status conference, the trial court set a contradictory hearing on TCSI’s former attorneys’ motion on October 20, 2016R Mr. Thompson, as TCSI’s corporate secretary and agent for service of process, was present in court and expressly informed of the hearing date.

In considering whether withdrawal was appropriate, the trial court considered not only the arguments set forth in TCSI’s former attorneys’ memoranda, but also two communications between TCSI and their former attorneys that the attorneys submitted to the court for an in camera review without objection by TCSI. After oral argument and an in camera review of the aforementioned communications, the trial court found that TCSI’s former attorneys could not continue to represent TCSI, that the former attorneys were in an “untenable situation” in which their recommendations had not been followed, and that there was “good cause” for the former attorneys’ withdrawal. We also note that TCSI knew by October 3, 2016 at the latest that its former counsel was seeking to withdraw and, in any event, had another thirty-two (32) days from the date of withdrawal (October 20) to retain alternate counsel before trial. Accordingly, we find no abuse of discretion in the trial court’s allowing TCSI’s former attorneys to withdraw. Likewise we find no merit in TCSI’s due process argument considering the fact that Mr. Thompson had actual notice and the amount of time that passed between the trial court’s granting of TCSI’s former attorneys’ motion to withdraw and the trial date.

With regards to TCSI’s assertion that applying revised La. R.S. 41:1215 to its lawsuit “puts due process rights at risk,” it is well settled that a challenge to the constitutionality of a statute, whether a facial attack or an “as applied” challenge, must be specifically pleaded in the trial court and cannot be raised in the first instance in an appellate brief. See Abuan ex rel. Valdez v. Smedvig Tankships, Ltd., 2000-1120, p. 4 (La.App. 4 Cir. 4/11/01), 786 So.2d 827, 832. The unconstitutionality of a statute must be specifically pleaded in a petition, an exception, a motion, or answer and cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings. Id. Therefore, because TCSI failed to raise its constitutional due process challenge in the trial court, this Court will disregard this assignment of error.

Even if a constitutional challenge to La. R.S. 41:1215 as amended was properly before this Court, the statute was properly applied and did not deprive TCSI of due process. The trial court’s finding that the expedited trial and appeal process mandated by the revised version of La. R.S. 41:1215 should be applied to the pending case was directed by the plain language of section 3 of 2016 Louisiana Acts, No. 516, which amended La. R.S. 41:1215. Section 3 of Act 516 states “[t]he provisions of this Act shall be applicable to all leases entered into by public benefit corporations after the effective date of this Act.” TCSI concedes that its suit was pending at the time Act 516 was enacted and La. R.S. 41:1215 was amended.

We will now address the trial court’s granting of the motion of dismissal of TCSI’s case with prejudice and for sanctions. On April 18, 2015, Mr. Peer and Mr. Thompson sold their rights in TCSI to Mr. Thompson for ten dollars. TCSI, under Mr. Fisher’s direction, filed this lawsuit five days later on April 23, 2015. The trial court found that when Mr. Fisher bought the rights to TCSI, it was not a valid corporation, that Mr. Fisher did so for the purpose of filing this lawsuit to extract money from the defendants, and that this constituted an “abuse of process.” At the time of the trial court’s November 21, 2016 judgment of dismissal, TCSI still had no board, no stock, no by-laws, and no bank account, and it was still under the complete control of Mr. Fisher, TCSI’s sole shareholder and director. Mr. LFisher falsely represented to Mr. Thompson that there was a management committee following Mr. Fisher’s purchase of TCSI. Likewise, Mr. Fisher’s statement that there were other stockholders in TCSI was a fabrication. Therefore, Mr. Thompson’s prior representation that Mr.. Fisher no longer had an ownership interest in TCSI as of October 13, 2016, was false.

TCSI contends that “just because [Mr. Thompson] did not produce documents with the specific information Defendants-counsel was hoping for does not affect TCSI’s legal status.” However, the documents were subpoenaed from TCSI, not Mr. Thompson, and Mr. Thompson could not produce corporate documents that never existed. Further, Mr. Thompson testi-fled that TCSI issued no stock, had no regular or recorded board meetings, had no management committee, filed no tax returns, and had no by-laws, no bank accounts and no assets. The mere fact that TCSI is registered as a Louisiana corporation does not change the fact that it has failed to follow the established norms of corporate status, and instead proves that it is a corporation in name only. Based on these facts, the trial court correctly held that TCSI’s corporate form should be disregarded in the interest of justice and equity by weighing the interest being protected by preserving the corporate form versus the harm in permitting the corporate form to be abused, and it was proper to pierce the corporate veil. See Glazer v. Comm’n on Ethics for Pub. Employees, 431 So.2d 752, 757 (La. 1983).

La. R.S. 41:1215 provides a right of action to appeal a lease award by a public benefit corporation only to a “person or other entity ... unsuccessful in the bid.” Thus, the statute expressly prohibits Mr. Fisher, individually or through his alter ego, TCSI, from filing a lawsuit because he had no interest or involvement in the RFP/ RFQ process. “[A]n action can be brought only by a person having a real| s and actual interest which he asserts.” La. C.C.P. art. 681. If the plaintiff has no interest in the litigation, he has no right of action, and the suit may be dismissed pursuant to a peremptory exception. La. C.C.P. art. 927(6). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. State in Interest of K.C.C., 2015-1429 (La. 1/27/16), 188 So.3d 144. Accordingly, if a plaintiff does not have an interest in the litigation, his suit must be dismissed with prejudice.

For the above and foregoing reasons, we affirm the judgment of the trial court. The trial court had grounds to dismiss the plaintiffs case under Louisiana Code of Civil Procedure Articles 927, 1471, and 1672.

AFFIRMED

LEDET, J„ CONCURS WITH REASONS

LEDET, J,

CONCURS WITH REASONS

hi concur in the affirmation of the trial court’s judgment dismissing with prejudice this suit by Two Canal Street Investors, Inc. (“TCSI”), but for different reasons than those expressed in the majority opinion. The dispositive issue—which the majority opinion fails to address—is whether the trial court abused its discretion in dismissing TCSI’s suit with prejudice pursuant to La. C.C.P. art 1672 A(l).

Although TCSI received proper notice of the trial court’s October 20, 2016 order setting the trial for November 21, 2016, TCSI failed to appear at trial. Nor did TCSI file a motion to continue. At trial, the defendants formally moved for a dismissal with prejudice under La. C.C.P. art. 1672 A(l). Granting the motion, the trial court, in its oral reasons for judgment, cited O’Rourke v. Nora’s Creole Cafe, 03-0810, pp. 3-1 (La.App. 4 Cir. 8/13/03), 854 So.2d 976, 978. In that case, this court stated:

A trial judge’s knowledge of the condition of the court’s docket, fairness not only to both parties but also to other litigants in the courts and the need for an orderly and prompt administration of justice provides the trial judge with superior ability to determine the terms of the dismissal. Keyes v. Johnson, 542 So.2d 209 (La. App. 3 Cir.1989); Matter v. McKinney, 310 So.2d 696, 698 (La.App. 1 Cir.1975).

Id.

Applying those principles, the trial court determined that a dismissal of TCSI’s case with prejudice was warranted given that “[tjhis case has had several hearings. We have had several different members of this entity [TCSI] come in and out of this case. The Court has held a number of hearings, and this case has gone to the Court of Appeal, Fourth Circuit, on a number of occasions.” The trial court further noted that it “ha[d] ensured that all parties have been made aware of the hearings in this matter” and “ha[d] given everyone an opportunity to properly brief any issues.”

A trial court’s judgment dismissing a plaintiffs case for failure to appear for trial will not be reversed absent a showing of an abuse of discretion. O’Rourke, 03-0810 at p. 4, 854 So.2d 976 at 978 (citing Keyes v. Johnson, 542 So.2d 209 (La. App. 3rd Cir. 1989). Construing Article 1672 A(l), this court has noted that “Louisiana law plainly provides that failure to appear on the date of trial mandates dismissal of a party’s claims.” At Your Serv. Enterprises, Inc. v. Swope, 07-1620, p. 9 (La.App. 4 Cir. 1/14/09), 4 So.3d 138, 144.

The Swope case illustrates the type of conduct that this court has found to justify the dismissal of a party’s claim with prejudice. In that case, the plaintiff was a contractor who filed suit against a homeowner, Mr. Swope, for amounts due on a renovation job. In response, Mr. Swope filed a reconventional demand. The contractor propounded discovery, and Mr. Swope failed to answer. The contractor filed a motion to compel. A few weeks before trial, the trial court ordered Mr. Swope’s counsel to provide discovery responses within fourteen days and advised the contractor’s counsel that he could pursue sanctions if the responses werej 3 not timely received. No responses were provided. Neither Mr. Swope nor his counsel appeared at either the pre-trial conference or the trial. At trial, the trial court allowed the contractor to put on evidence.

In Sioope, the trial court rendered judgment in the contractor’s favor and dismissed Mr. Swope’s reconventional demand. Mr. Swope filed a motion for new trial, but neither he nor his counsel appeared at the hearing on the motion, which was denied. Affirming, we reasoned that “[a]ppellant [Mr. Swope] in this case not only refused to comply with court ordered discovery, but also failed to appear, without explanation, on the date set for trial.” Swope, 07-1620 at p. 10 (La. App. 4 Cir. 1/14/09), 4 So.3d 138, 144. We further reasoned that Mr. Swope’s actions had prejudiced the other litigant, the contractor.

Similar to Swope, this case involves a plaintiff who not only failed to comply with court-ordered discovery, but also failed to appear at trial. It also involves prejudice to the other litigant, the defendants.

Summarizing, the trial court’s dismissal of TCSI’s case with prejudice was warranted for three reasons. First, TCSI failed to file a motion to continue or to appear at trial. Second, TCSI engaged in a pattern of dilatory tactics and abuses of process, including failing to produce Mr. Fisher for his deposition. Indeed, TCSI’s discovery violations have been the subject of writ applications to this court. Finally, this case involves prejudice to the opposing party caused by the long procedural history of this case. As the defendants point out in their brief, “[t]his case has been pending for over 18 months, has resulted in substantial litigation costs, and has delayed the redevelopment of valuable property that is crucial to the economic development of the City of New Orleans.”

Given the trial court’s dismissal of TCSI’s suit with prejudice pursuant to Article 1672 A(l) was not an abuse of discretion, I would pretermit the issue of whether the corporate entity, TOSI, had a right of action to bring this suit.

14For these reasons, I respectfully concur.

      . The lawsuit also named the City of. New Orleans and Mary Kay Kleinpeter-Zamora as defendants. Carpenter & Company, Inc., Woodward Interests, LLC, and their affiliate, Two Canal Owner, LLC, later intervened in the lawsuit.

      . Mr, Fisher again became president of TCSI after the threat of being deposed was no longer on the table.

      . . The final judgment and appellate review of the decision was expedited under La. R.S. 41:1215(D)(3)(c).

      . In its original brief, filed on January 13, 2017, the appellant only includes the first three assignments of error. The fourth assignment of error does not appear until January 17, 2017, when the appellant filed an amended brief and after the appellees had filed their brief.

      . Article 1672 A(l) provides that “[a] judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial.”. La. C.C.P. art. 1672 A(l).

      . In setting the trial date, the trial court admonished TCSI that if it disputed the setting of the trial date, it should move for a continuance so that the trial court could consider their showing for good cause and allow for appellate review before trial. TCSI failed to do.


author: Judge Joy Cossich Lobrano

text:
    STATE of Louisiana v. DIAMINIKE STALBERT & Fredrick Stalbert
    NO. 2016-K-1218
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 15, 2017
    Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Kyle Daly, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/RELATOR
    Elizabeth Ford Sgro, ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR DIAMINIKE STALBERT / RESPONDENT
    Richard James Richthofen, Jr., RICHTHOFEN & ASSOCIATES, LLC, 400 Magazine Street, Suite 300, New Orleans, LA 70130, COUNSEL FOR FREDRICK STALBERT / RESPONDENT
    (Court composed of Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins)
   Judge Joy Cossich Lobrano

I, The State of Louisiana (“State”) seeks review of the district court’s October 28, 2016 ruling granting a motion to recuse District Attorney Leon Cannizzaro’s office (the “District Attorney”) filed by Defendants, Diaminike and Fredrick Stalbert (collectively “Defendants”), in Case No. 526-573, and a motion to recuse the District Attorney filed by Diaminike Stalbert in Case No. 529-774. For the following reasons, we grant the writ and reverse the ruling of the district court.

In Case No. 526-573, Fredrick Stalbert faces charges of discharging a firearm during a crime of violence, aggravated battery, and possession of a firearm by a person convicted of domestic abuse battery, while Diaminike Stalbert faces a charge of inciting a riot. An unrelated incident gave rise to Case No. 529-774, in which Diaminike faces charges of forgery. In the forgery case, Diaminike Stalbert is alleged to have taken a check given to her by a witness advocate employed by the District Attorney’s Office, forged the name of the intended recipient, and pocketed the funds. This, Defendants allege, is sufficient to merit recusal of the District Attorney’s Office.

We disagree. “[T]he jurisdiction of the district attorney to prosecute those who violate state criminal statutes is exclusive; it can only be constrained or | gcurtailed when it operates to the prejudice of a contrary constitutional mandate, and even then only with due deference to the district attorney’s constitutional prerogative.” Bd. of Comm’rs of Orleans Levee Dist. v. Connick, 94-3161, p. 8 (La. 3/9/95), 654 So.2d 1073, 1077. La. C.Cr. P. art. 680(1) provides, in relevant part:

A district attorney shall be recused when he:
(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice....

In a motion to recuse a district attorney, the defendant bears the burden of showing by a preponderance of the evidence that the district attorney should be recused. State v. Edwards, 420 So.2d 663, 673 (La. 1982).

The Louisiana Supreme Court has found grounds for recusing a district attorney-based on personal interest in only a handful of cases “where the ‘personal interest’ is strictly individual.” State v. Griffin, 2014-1238, p. 12 (La. 10/14/15), 180 So.3d 1262, 1272. Neither Defendant has made a showing that the District Attorney’s interest in this case is strictly individual and in conflict with the fair and impartial administration of justice. Although the District Attorney is a party to the proceedings and the check was drawn on its bank account, this does not constitute the strictly individual personal interest contemplated by La. C.Cr.P. art. 680(1) and Louisiana jurisprudence. As noted by the State, the check was not issued from |sLeon Cannizzaro’s personal checking account and thus the prosecution of Diaminike for the forgery would not result in his private gain.

Defendants’ failure to prove personal interest requires reversal.

Furthermore, because the District Attorney should not be recused from the forgery case against Diaminike Stalbert, in which its office has some connection to the offense, the District Attorney should also not be recused from the unrelated case against Diaminike Stalbert for inciting a riot and Frederick Stalbert for discharging a firearm during a crime of violence, aggravated battery, and possession of a firearm by a person convicted of domestic abuse battery. As such, the district court erred in granting the motion to recuse filed by Diaminike Stalbert in Case No. 529-774 and the motion to recuse filed by Defendants in Case No. 526-573. As a result, the district court’s judgments granting the motions to recuse the District Attorney are reversed.

WRIT GRANTED

      . Justice Weimer, in his concurrence in State v. King, 2006-2383, p. 1 (La. 4/27/07), 956 So.2d 562, 571, defined personal interest as follows:
      A personal interest in the cause could be any factor which results in the district attorney singling out a particular case for any reason unrelated to the duties and responsibilities of a prosecutor. A personal interest in the cause results if the district attorney or a prosecutor is the victim of the crime charged or if títere is a direct connection between the crime charged and the district attorney. See, e.g., State v. Tate, 185 La. 1006, 171 So. 108 (1936); State v. Cox, 246 La. 748, 167 So.2d 352 (1964); State v. Snyder, 256 La. 601, 237 So.2d 392 (1970), where there was a direct connection between the charges and the district attorneys. A personal interest in the cause also results when an incident or occurrence adversely affects the district attorney's ability to exercise detached professional judgment.

      . Specifically, Defendants erred by focusing their argument on the objective test provided in State v. King prior to proving personal interest. In King, 2006-2383, p. 9, 956 So.2d at 567 (plurality opinion), the Louisiana Supreme Court noted that La. C.Cr.P. art. 680(1) "employs an objective decision as to whether a reasonable person would believe the facts at issue regarding the district attorney’s personal interest in the cause would impair his ability to act fairly and impartially in conducting defendant's prosecution.” This test requires that a personal interest has been established prior to its application.