author: GUIDRY, J. WHIPPLE, C.J., dissenting. McClendon, J., dissenting.

text:
    H.L. HAWKINS III and John C. Lovell, Jr. as Succession Representatives of the Succession of H.L. Hawkins, Jr., Hawkeye Energy, Inc., and H.L. Hawkins, Jr., Inc. v. The MERIDIAN RESOURCE AND EXPLORATION LLC and the Meridian Resource Corporation f/k/a Texas Meridian Resources Exploration, Inc.
    NUMBER 2016 CA 1545
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 06, 2017
    Joe B. Norman, Kelly B. Becker, Joseph I. Giarrusso III, Katherine Seegers Roth, Jonathan Andrew Hunter, Tyler D. Trew, New Orleans, LA, Counsel for Plaintiffs/Appellants H.L. Hawkins III and John C. Lovell, Jr., as succession representatives of the Succession of H.L. Hawkins, Jr., Hawkeye Energy, Inc., and H.L. Hawkins, Jr., Inc.
    Deborah B. Rouen, Francis V. Liantonio, Jr., Raymond P. Ward, New Orleans, LA and Kellen J. Mathews, Baton Rouge, LA Counsel for Defendant/Appellee The Meridian Resource and Exploration LLC
    BEFORE: WHIPPLE, C.J., GUIDRY, McDONALD, WELCH, AND MCCLENDON, JJ.
   GUIDRY, J.

Plaintiffs appeal a judgment dismissing a portion of their claims against the defendants pursuant to the defendants' invocation of a choice of law provision, which the defendants first raised twelve years after the commencement of litigation between the parties. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 1, 2004, Hawkeye Energy, Inc., H.L. Hawkins, Jr., Inc., and H.L. Hawkins, III and John C. Lovell Jr., as co-executors of the Succession of H.L. Hawkins, Jr. (collectively "plaintiffs"), filed a petition for damages against The Meridian Resource and Exploration LLC and The Meridian Resource Corporation (collectively "Meridian") based on an agreement between H.L. Hawkins, Jr. and Texas Meridian Resources Exploration, Inc. (also hereinafter referred to simply as "Meridian") that was executed in 1993. According to the petition, the 1993 agreement between Hawkins, Jr. and Meridian "established a framework for Mr. Hawkins to invest as a non-operator in drilling, exploration and production operations undertaken by Meridian." Among the provisions of the 1993 agreement was a master participation agreement and a joint operating agreement.

From 1994 to 1998, Hawkins, Jr. agreed to participate with Meridian in several drilling prospects, including the Holmwood Prospect located in Calcasieu Parish, on lands owned in fee by Amoco Production Company. A separate mineral lease and joint exploration agreement existed between Meridian and Amoco relative to the Holmwood Prospect. An initial well, the Amoco Ben Todd No. 2 well, drilled by Amoco, proved productive, and according to the petition, Meridian and Hawkins, Jr. participated in the cost of the drilling operations for that well and shared in the revenue of the well.

Meridian then desired to drill a second well on the property, the TMRX-Ben Todd No. 1 well, in an area where Amoco did not consent to drilling operations. Upon learning of Meridian's intent to drill the well without its consent, Amoco filed a declaratory judgment action against Meridian in federal district court in Texas. Later, when Amoco discovered that Meridian had begun surface operations for the disputed well, Amoco amended its suit against Meridian to assert breach of contract and damages. The federal district court eventually rendered judgment in favor of Amoco: dissolving its lease agreement with Meridian, terminating Meridian's interests in the disputed well and in the previously drilled producing wells, and awarded damages. Except for the award of legal interest on the damages award, the district court's judgment was affirmed on appeal. See Amoco Production Company v. Texas Meridian Resources Exploration Inc., 180 F.3d 664 (5th Cir. 1999).

Once the Amoco litigation was finally concluded, Meridian sent an invoice for what it calculated as Hawkins, Jr.'s "pro rata portion of the judgment and post judgment interest" from the Amoco litigation in a letter to Hawkins, Jr. dated August 30, 1999. By a letter dated September 17, 1999, Hawkins III and Lovell Jr., as co-executors of the Succession of H.L. Hawkins, Jr., issued payment from the estate of Hawkins, Jr. for the sum demanded with "full reservation of any and all rights and remedies that the Estate may have, including (without limitation) the right to contest all or a portion of [the] payment, the right to audit and contest prior invoices and statements, and the right to assert a claim for any and all damages."

Over five years later, the plaintiffs instituted the present action. In the lawsuit, the plaintiffs claimed that Meridian's action of drilling the well without Amoco's consent, and falsely representing to Hawkins, Jr. that Amoco had consented to the drilling, constituted fraud and violated duties that Meridian owed to Hawkins, Jr. under the 1993 agreement, which caused the plaintiffs to sustain millions of dollars in lost investments, realized and future revenues and profits, and other out-of-pocket expenses. The plaintiffs also asserted accounting claims based on various audits that were conducted of Meridian's operations pursuant to the 1993 agreement. Plaintiffs later amended their petition to add James T. Bond as a defendant and expanded the allegations supporting their breach of contract claim. Meridian filed answers generally denying liability for all the claims asserted by the plaintiffs in the original and amended petitions.

On February 15, 2008, the plaintiffs filed a motion seeking a partial summary judgment on the issue of Meridian's liability. In the motion, the plaintiffs argued that "[b]ased on Meridian's judicially established malfeasance," they were entitled to partial summary judgment against Meridian on liability. Meridian filed an opposition to the motion for partial summary judgment asserting, in part, that the plaintiffs' claims had a "prescription problem," particularly to the extent that the plaintiffs' claims were premised on allegations of fraud.

On July 7, 2008, the trial court signed a judgment granting the plaintiffs' motion for partial summary judgment, based in pertinent part on the following findings:

Meridian, as operator or manager of the parties' jointly owned property, specifically the Amoco lease, represented Hawkins' interest in the Amoco litigation pursuant to the parties' contract, the Joint Operating Agreement attached as Exhibit A to the petition. The judgment rendered in Amoco Production Company v. Texas Meridian found that Meridian acted in bad faith and therefore the Amoco lease should be cancelled. It is undisputed that this judgment resulted in a loss to Hawkins of its entire interest in the lease as well as its pro-rata share of mineral revenues awarded to Amoco....
...
This Court finds that Hawkins was in direct contractual privity with Meridian. The parties' contract, the Joint Operating Agreement, not only obligated Meridian to prudently and responsibly represent the interests of its investors, including Hawkins, but it also obligated Meridian to defend Hawkins' interests in the lawsuit with Amoco....
In the end, this Court finds that there is no basis to allow Meridian to relitigate those issues already decided by the federal court in Amoco. The purpose of both federal and state law on res judicata is essentially the same, which is to promote judicial efficiency and final resolution of disputes by preventing needless relitigation. For these reasons, this Court finds that there are no genuine issues of material fact in this case regarding the liability of [Meridian] as that matter has been judicially established in federal court as a matter of law. Thus, this Court will grant the Motion for Partial Summary Judgment filed by the Plaintiffs against Meridian on liability for breach of contract. Judgment to be signed accordingly. [Emphasis added.]

In the meantime, Meridian continued to seek dismissal of the plaintiffs' non-accounting claims based on prescription. First, Meridian filed a motion for partial summary judgment, asserting that the plaintiffs' claims of fraud and misrepresentation were prescribed pursuant to either La. C.C. art. 2032 or 3492, which the trial court denied in a judgment signed August 6, 2008. Later, Meridian filed a peremptory exception, again asserting that the plaintiffs' non-accounting claims were prescribed, but this time based on the assertion that the "claims against Meridian [arose] from a joint venture," and that as such, La. R.S. 12:1502 applied to bar the plaintiffs' non-accounting claims.

Before the trial court held a hearing on the peremptory exception, Meridian filed an "Amended and Superseding Peremptory Exception of Prescription" on May 12, 2016, wherein Meridian amended its earlier exception to completely replace the original exception and to instead plead the applicability of Texas's statute of limitations to all but the plaintiffs' non-accounting claims. In its amended exception, Meridian asserted that the sole basis for its "alleged liability ... is breach of contract," and it pointed out that the July 7, 2008 partial summary judgment only held it liable for breach of contract. The master participation agreement included in the parties' 1993 agreement provided:

8.

APPLICABLE LAW

THIS PARTICIPATION AGREEMENT SHALL BE INTERPRETED AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF TEXAS. IN THE EVENT THERE IS A CONTRACTUAL DISPUTE WHICH CANNOT BE RESOLVED AMONG YOU AND [MERIDIAN], ANY LAWSUIT BROUGHT FORTH RELATIVE TO SUCH DISPUTE SHALL BE TRIED IN THE APPROPRIATE COURT OF LAW IN THE STATE OF TEXAS.[ ]

Thus, citing Tex. Civ. Prac. & Rem. Code § 16.051 and Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002) (holding that under Texas law a claim of breach of contract is subject to a four-year statute of limitations), Meridian urged the trial court to find the plaintiffs' non-accounting claims to be prescribed.

The plaintiffs opposed Meridian's amended and superseding peremptory exception, arguing that application of Louisiana choice of law rules dictated that Louisiana's prescriptive statutes apply, or alternatively, that: (1) Meridian should be found to have waived its right to assert the choice of law provision considering that the matter had been in litigation for over ten years and that until it filed the amended exception, Meridian had presented its defense solely under Louisiana law; or (2) judicial estoppel should apply to bar Meridian from presenting a defense under Texas law. Despite these arguments, following a hearing held on June 13, 2016, the trial court sustained Meridian's peremptory exception raising prescription based on Texas law and accordingly dismissed all of the plaintiffs' non-accounting claims with prejudice in a judgment signed on August 19, 2016. The trial court further designated the judgment as a final judgment under La. C.C.P. art. 1915(B), finding that because "the claims dismissed by this judgment are a completely separate cause of action from plaintiffs' remaining claims," there was no just reason to delay an appeal of the matter. The plaintiffs filed a motion for devolutive appeal on September 2, 2016.

ASSIGNMENTS OF ERROR

1. The trial court erred when it allowed Meridian to invoke Texas law twelve years into the litigation and after a judgment had been rendered against it under Louisiana law.
2. The trial court erred when it violated Louisiana Civil Code article 3549 and applied a Texas statute of limitations, rather than Louisiana's ten-year prescriptive period for contractual obligations, to decide Meridian's Amended Exception of Prescription.

DISCUSSION

In their first assignment of error, the plaintiffs assert three separate arguments premised on the principles of waiver, judicial estoppel, and judicial admission as grounds for reversing the judgment of the trial court.

Waiver

The first argument of waiver (as it relates to choice of law), while recognized in state law, has principally been developed under federal law, wherein it has generally been found that failure to raise or assert a contractual choice of law provision in the trial court will constitute a waiver of the provision. For example, in Fruge v. Amerisure Mutual Insurance Company, 663 F.3d 743, 747 (5th Cir. 2011), the U.S. Fifth Circuit observed that the defendant raised for the first time, on appeal, that the district court should have applied Texas rather than Louisiana law, observing:

However, Amerisure briefed only Louisiana law before the district court , never asserting that Texas law should apply or that the district court should engage in a choice-of-law analysis. Indeed, Amerisure relied exclusively on Louisiana law in its motion for summary judgment and in opposing Chubb's motion for summary judgment at the district court level . Now, for the first time on appeal , Amerisure argues that the district court should have independently analyzed Louisiana's choice-of-law rules and applied Texas law. Failure to raise an argument before the district court waives that argument, including an argument for choice-of-law analysis. Amerisure has thus waived its choice-of-law argument. [Emphasis added; footnote omitted.]

In Farm Credit Bank of Texas v. Fireman's Fund Insurance Company, 822 F.Supp. 1251, 1258 (W.D. La. 1993) (ruling on reconsideration), aff'd, 50 F.3d 1033 (5th Cir. 1995), the federal district court similarly found waiver barred the plaintiff's attempt to assert application of a different choice of law, observing the following:

Plaintiff argues next that newly discovered evidence reveals the place of contract to be California, where the law on waiver is more favorable to plaintiff than Louisiana's. This comes too late. Plaintiff filed this suit in March 1991. But until our 26 April 1993 ruling, plaintiff never mentioned choice of law. In fact, plaintiff argued Louisiana law on the waiver issue. Now, after Louisiana law has yielded an unfavorable result, plaintiff asks for reconsideration on the basis of newly discovered evidence obtained through the deposition of Carolyn Abbott (the Fireman's Fund employee whose signature appears on the face of the bond) taken the day after this court ruled on the matter. Because this evidence was available to plaintiff long before it responded to the summary judgment motion, we find reconsideration unwarranted under Rule 59(e).

Notably, although the issue of choice of law was raised in the trial court in Farm Credit Bank, it was raised after judgment, on a motion for reconsideration, rather than before the case was submitted. Additionally, the assertion of choice of law in that case was raised by the plaintiff, which was the party responsible for initiating the action under Louisiana law, and thus establishing the application of Louisiana law to the proceedings.

Finally, in Kucel v. Walter E. Heller & Company, 813 F.2d 67, 74 n.7 (5th Cir. 1987), the defendant raised the issue of choice of law at the commencement of litigation in the district court, and as a result, the district court applied Illinois rather than Texas (the forum state) law to the trial on the merits of the suit; however, following the trial on the merits, in ancillary proceedings for attorney fees, the defendant failed to re-urge application of Illinois law as the contractually-designated law chosen by the parties. So despite being aware of the choice of law provision in the parties' contract, the district court applied the forum state's (Texas) law rather than the contractually-designated law of Illinois in post-judgment proceedings to decide the ancillary issue of attorney fees. In reversing the district court's attorney fee award, the appellate court, in a footnote, held "[n]or do we believe [the defendant] waived the issue by not raising it again until the motion for reconsideration of attorney's fees [which were allowed under Texas law, but not under Illinois law]. Having once properly notified the court of the issue, it satisfied its duty." Kucel, 813 F.2d at 74 n.7. Of particular note here is the Kucel court's pronouncement of the principle that a party has "an obligation to call the applicability of another state's law to the court's attention in time to be properly considered." Kucel, 813 F.2d at 74.

In line with federal jurisprudence on this issue, this court in Denham Homes, L.L.C. v. Teche Fed. Bank, 14-1576, p. 6 n.3 (La. App. 1st Cir. 9/18/15), 182 So.3d 108, 113 n.3, citing Fruge, observed the following:

We note that both the settlement agreement and Plan contain choice-of-law provisions not referenced by the parties herein.
....
We find that the parties have waived the above-referenced choice-of-law provisions and that Louisiana law applies herein. The plaintiffs did not plead Illinois law in their petition and the parties' arguments in the district court and before this court all cite and rely upon Louisiana law. [Emphasis added.]

Hence, while the issue of choice of law was not raised by any of the parties in Denham Homes, it appears that this court gratuitously raised the issue simply to point out that in reviewing the contracts in dispute in the matter, the choice of law provision had been recognized, but would not be considered for the reasons stated.

In the matter before us, although the litigation had been pending for more than a decade at the time Meridian raised the choice of law provision, the issue, nonetheless, was raised in the trial court prior to the case being submitted. And even though the trial court had rendered a partial summary judgment on the issue of Meridian's liability for the plaintiffs' non-accounting claims, the July 7, 2008 partial summary judgment was interlocutory and not a final judgment. See La. C.C.P. art. 1915(B). But more importantly, the plaintiffs' assertion of waiver must be considered in light of Louisiana's procedural law regarding the raising of the objection of prescription. The Louisiana Code of Civil Procedure expressly provides that the objection of prescription can be plead "at any stage of the proceeding in the trial court prior to a submission of the case for a decision" or even on appeal. See La. C.C.P. arts. 928(B) and 2163.

Thus, considering the totality of the facts in this case and in light of this state's positive law regarding the raising of the objection of prescription, we cannot say that the trial court erred in rejecting the plaintiffs' claim that waiver precluded Meridian's tardy invocation of the applicability of Texas law.

Judicial Estoppel

Next, the plaintiffs argue that the trial court should have rejected Meridian's tardy assertion of the applicability of Texas law based on the principle of judicial estoppel. Judicial estoppel prohibits parties from deliberately changing positions according to the exigencies of the moment. The doctrine is intended to prevent the perversion of the judicial process and prevents playing fast and loose with the courts. To apply, courts look to whether: (1) the party against whom judicial estoppel is sought has asserted a legal position that is plainly inconsistent with a prior position; (2) a court accepted the prior position; and (3) the party did not act inadvertently. Hancock Bank of Louisiana v. C & O Enterprises, LLC, 14-0542, p. 7 (La. App. 1st Cir. 12/23/14), 168 So.3d 595, 600, writ denied, 15-0621 (La. 5/22/15), 171 So.3d 251.

In considering the first prong of this test, it is questionable whether Meridian can be said to have taken a "legal position" as to choice of law. While unquestionably, up until 2016, all of the arguments and defenses presented by the parties were presented under Louisiana law, nowhere in the record before us did Meridian expressly state that Louisiana law governed the dispute. Rather, Meridian's opposition to the plaintiffs' suit appears to be merely responsive to the plaintiffs' act of filing suit in Louisiana state court and presenting their claims under Louisiana law.

But even conceding the first prong of the three-prong test recited above, the trial court herein rejected Meridian's previous arguments and defenses regarding prescription under Louisiana law; hence, the second prong of judicial estoppel does not appear to have been met. Moreover, as for the final prong of judicial estoppel, rather than waiting to see if it prevailed on its alternative basis for seeking to have the plaintiffs' non-accounting claims dismissed as prescribed under Louisiana law, Meridian withdrew its Louisiana-law-based peremptory exception before it was even decided and asserted its claim of prescription based on Texas's statute of limitations. Such behavior could be viewed as indicating that Meridian had inadvertently failed to realize the applicability of Texas law. Thus, considering that judicial estoppel is an equitable doctrine invoked at the discretion of the court, we cannot say that the trial court abused its discretion in failing to invoke the doctrine to preclude Meridian's tardy assertion of the applicability of Texas law.

Judicial Confession

Louisiana Civil Code article 1853 states "[a] judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it." 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. Cichirillo v. Avondale Industries, Inc., 04-2894, p. 6 (La. 11/29/05), 917 So.2d 424, 429. But a judicial confession must be explicit and cannot be implied. Yesterdays of Lake Charles, Inc. v. Calcasieu Parish Sales and Use Tax Department, 15-1676, p. 30 (La. 5/13/16), 190 So.3d 710, 729.

As we previously stated, we have not found, nor have the plaintiffs pointed out, where Meridian has ever expressly stated that Louisiana law governs the parties' dispute. Hence, while Meridian's maintenance of a defense under Louisiana law for twelve years may have implied that Meridian conceded to the application of Louisiana law to the parties' dispute, the mere implication is not enough to support a finding that Meridian judicially confessed to the application of Louisiana law. Compare with Abshire v. Belmont Homes, Inc., 04-1200, p. 8 (La. App. 3d Cir. 3/2/05), 896 So.2d 277, 283, writ denied, 05-0862 (La. 6/3/05), 903 So.2d 458 (finding that the defendant had judicially confessed that Louisiana law applied based on the express statement made by defense counsel that "[a]s far as the application, we are both arguing Louisiana law. I don't think that's an issue.")

Accordingly, having considered all the arguments raised by the plaintiffs, we find no merit in any of the arguments and thus reject the plaintiffs' first assignment of error.

Choice of Law

In their second assignment of error, the plaintiffs argue that the trial court wrongly applied Louisiana's choice of law provisions, particularly La. C.C. art. 3549, in deciding this matter. We find no merit in this argument.

Louisiana Civil Code article 3549, titled "Law governing liberative prescription," states, in pertinent part:

B. When the substantive law of another state would be applicable to the merits of an action brought in this state, the prescription and peremption law of this state applies, except as specified below:
...
(2) If the action is not barred under the law of this state, the action shall be maintained unless it would be barred in the state whose law is applicable to the merits and maintenance of the action in this state is not warranted by the policies of this state and its relationship to the parties or the dispute nor by any compelling considerations of remedial justice. [Emphasis added.]

In Turner v. Miller Transporters, Inc., 02-2278, p. 12 (La. App. 1st Cir. 6/27/03), 852 So.2d 478, opinion adhered to as modified on reh'g, 02-2278 (La. App. 1st Cir. 2/23/04), 876 So.2d 848, writs denied, 04-0762, 04-0804 (La. 5/21/04), 874 So.2d 174, 177, in determining whether Mississippi's statute of limitations should apply to the plaintiffs' claims based on Mississippi law being chosen by the parties as applying to the lease agreements in dispute, this court first observed:

In Louisiana, issues of conventional obligations are generally governed by the law expressly chosen or clearly relied upon by the parties, unless that law contravenes the public policy of the state whose law would otherwise be applicable if its policies would be more seriously impaired by not applying its law. La. C.C. arts. 3537 and 3540. There has been no viable demonstration that the policies of Louisiana would be more seriously impaired by applying Mississippi law to the consideration of the controverted issues.

Turner, 02-2278 at p. 10 n.3, 852 So.2d at 486 n.3. Then as to how the parties' choice of law applied to prescription, this court held:

In considering whether Louisiana prescription or the Mississippi statute of limitations applies, it has been noted that Louisiana generally permits parties to select the law that will determine the outcome of disputes involving a contract. ... Lessors have failed to suggest a public policy that would be violated by the application of the Mississippi statute of limitations pursuant to the governance of the contract under Mississippi law. Nor is this court aware of any adversely impacted public policy by the application of Mississippi law. The trial court did not err in its application of the Mississippi statute of limitations to lessors' claims for breach of contract.

Turner, 02-2278 at p. 12, 852 So.2d at 487.

Likewise, in the matter before us, we find no basis in public policy or compelling considerations of remedial justice that would justify the application of Louisiana prescription over the Texas statute of limitations in this matter; nor do we find the relationship of the parties to this state require such application. Therefore, we find no error in the trial court's application of La. C.C. art. 3549 and reject this assignment of error as well.

CONCLUSION

For the foregoing reasons, we find no error in the trial court's judgment sustaining the peremptory exception raising the objection of prescription. Accordingly, we affirm. All costs of this appeal are cast to the plaintiffs, Hawkeye Energy, Inc., H.L. Hawkins, Jr., Inc., and the Succession of H.L. Hawkins, Jr., as represented by its co-executors, H.L. Hawkins, III and John C. Lovell Jr.

AFFIRMED.

WHIPPLE, C.J., dissenting.

I respectfully dissent from the majority opinion herein, as I find the defendants waived the right to raise the choice of law issue where the case has been in litigation for ten years and was decided on a motion for summary judgment, which opposition was based on a separate defense of fraud, and summary judgment was rendered in plaintiff's favor for breach of contract.

McClendon, J., dissenting.

I find that the defendants waived the choice of law provision in the parties' contract. Both parties cited, relied on, and proceeded under Louisiana law for every issue for more than a decade in litigating the underlying claims. Respectfully, the fact that prescription may be raised at any time has no bearing on the choice-of-law analysis, which is the main issue in this appeal. Accordingly, I would reverse the judgment of the trial court and would remand this matter for further proceedings.

      According to the 2005 affidavit of Lloyd V. DeLano, as chief accounting officer for The Meridian Resource Corporation, The Meridian Resource & Exploration LLC was, prior to its conversion to a Delaware limited liability company, a Texas corporation formerly known as Texas Meridian Resources Exploration, Inc. Additionally, The Meridian Resource & Exploration LLC is a subsidiary of The Meridian Resource Corporation. As such, we shall simply refer to the defendants as "Meridian" herein.

      In an April 1, 1993 letter from Meridian to Hawkins, Jr., Meridian stated that Hawkins, Jr. had expressed "a desire to acquire interests in prospects and/or leases so acquired by [Meridian] and to participate in exploration, development and drilling operations conducted thereon." To that end, Meridian attached to the April 1, 1993 letter "a form of letter agreement entitled 'MASTER PARTICIPATION AGREEMENT' (including a form of Joint Operating Agreement attached thereto as Exhibit 'B')." In the letter, Meridian also stated that if and when it identified prospects for exploration and production, it would send a specified "NOTICE" to Hawkins, Jr., wherein if Hawkins, Jr. appropriately executed the "NOTICE," there would be in "force and effect" a contract between Meridian and Hawkins, Jr. of the form of the "MASTER PARTICIPATION AGREEMENT." The April 1, 1993 letter, which was accepted and agreed to by Hawkins, Jr.'s manager on April 7, 1993, expressly noted that:
      The execution and delivery of this Letter Agreement shall not effect a contract or agreement or impose any duty, obligation, liability or responsibility on any party hereto as to any particular prospect. A contract or agreement as to any prospects identified by [Meridian] will be effected only when the undersigned and you have executed and delivered a form of NOTICE completed as hereinabove provided.
      The master participation agreement attached, to the April 1, 1993 letter as exhibit "1," further contained the following provision:
      Attached as Exhibit "B" hereto is a form of Operating Agreement. Such Operating Agreement shall be deemed to be in force and effect upon your execution of this Participation Agreement except, however, it is understood and agreed that wherever the Operating Agreement shall be in conflict with the terms of this Participation Agreement, the terms and provisions of this Participation Agreement shall control and prevail.

      By a letter dated June 27, 1996, Meridian offered Hawkins, Jr. an opportunity to participate in the drilling and production of the TMRX-Ben Todd No. 1 well. Through his general manager, J.T. Bond, Hawkins, Jr. submitted a written response dated June 1, 1996, electing to participate. A notation on the response indicates that the response was mailed to Meridian on July 1, 1996, which suggests that the June 1, 1996 date should actually be July 1, 1996.

      According to the petition in the instant matter, Hawkins, Jr. died "[d]uring the course of the litigation between Amoco and Meridian."

      Some of the additional allegations included claims that Meridian and Bond failed to disclose: (1) the financial self-interest of Meridian personnel who made critical decisions regarding drilling the contested Amoco well; (2) critical information regarding the Amoco lawsuit, including settlement opportunities and the recommendation of counsel to settle; (3) favored treatment given Meridian-controlled non-operators and Meridian employees with regard to the funding of the payment of the judgment in the Amoco lawsuit; and (4) the refusal of one non-operator, PetroQuest Energy, Inc., to fund any portion of the Amoco judgment.

      Meridian sought supervisory review of the trial court's July 7, 2008 partial summary judgment, but this court denied the writ application, noting that the relator has an adequate remedy on appeal following a final judgment on the merits. See Hawkins v. The Meridian Resource and Exploration LLC, 08-1383 (La. App. 1st Cir. 10/14/08).

      See La. C.C.P. art. 1152.

      In AAA Delivery, Inc. v. Airborne Freight Corporation, 94-346, p. 5 (La. App. 5th Cir. 11/16/94), 646 So.2d 1113, 1116, writ denied, 94-3073 (La. 2/9/95), 649 So.2d 423, the court held that the phrase "interpreted and construed" in the choice of law provision of the parties' contract established that the designated state law was to be used to settle the parties' disputes.

      "A forum selection clause is a provision in a contract that mandates a particular state, county, parish, or court as the proper venue in which the parties to an action must litigate any future disputes regarding their contractual relationship." Shelter Mutual Insurance Company v. Rimkus Consulting Group, Inc. of Louisiana, 13-1977, p. 4 (La. 7/1/14), 148 So.3d 871, 873. As an objection to venue is raised pursuant to a declinatory exception, which must be pleaded prior to or in the answer or else be deemed waived, Meridian is barred from seeking to enforce the forum selection provision. See La. C.C.P. arts. 925 and 928.

      On review of the trial court's designation of this judgment as final, we find no abuse of the trial court's discretion. See R.J. Messinger, Inc. v. Rosenblum, 04-1664, pp. 13-14 (La. 3/2/05), 894 So.2d 1113, 1122.

      Following this court's denial of Meridian's application for supervisory writs to review the July 7, 2008 partial summary judgment, Meridian filed a motion with the trial court to designate the judgment as final pursuant to La. C.C.P. art. 1915(B), but the trial court denied the motion.

      See Lowman v. Merrick, 06-0921, p. 13 (La. App. 1st Cir. 3/23/07), 960 So.2d 84, 92.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Rhonda BREHM v. Scott AMACKER and Monica Amacker
    NUMBER 2015 CA 1531
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 07, 2017
    Chad A. Danenhower, Covington, LA, Counsel for Plaintiff/Appellee Rhonda Brehm
    Trent P. Temples, Bogalusa, LA, Counsel for Defendants/Appellants Scott and Monica Amacker
    BEFORE: GIUDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

Defendant landowners appeal a judgment declaring a servitude in favor of their property to be less extensive than allegedly indicated in their act of sale.

FACTS AND PROCEDURAL HISTORY

On July 20, 2001, William and Jeanne Dalton purchased a 12-acre tract of land in Washington Parish. The tract acquired by the Daltons fronted on Parker Road, a Parish blacktop road, on its southern-most boundary. In 1999, "a perpetual servitude of passage for a roadway over and across the existing gravel road which runs from the north margin of Parker Road" was established and recorded by the Daltons' predecessor in title.

In March 2003, the Daltons sold a three-acre plot from the above-referenced tract to Scott and Monica Amacker. The plot sold to the Amackers was not adjacent to Parker Road. Over six years later, on June 29, 2009, Rhonda Brehm purchased 5.994 acres of the aforementioned tract owned by the Daltons. The land purchased by Ms. Brehm included the southern-most portion of the Daltons' tract that fronted on Parker Road; however, as referenced in the 1999 right of way agreement, a gravel road, known as Morning Mist Lane, ran along the length of the eastern edge of both the Amackers and Ms. Brehm's properties and acted as a private roadway whereby both properties had access Parker Road.

Despite the existence of Morning Mist Lane, troubles arose between the Amackers and Ms. Brehm regarding the width of the servitude of passage to Parker Road. On October 30, 2014, Ms. Brehm filed a "Petition for Possessory Action[,] Declaratory Judgment, Temporary Restraining Order, Injunctive Relief and Damages" against the Amackers, wherein she alleged that the Amackers had trespassed on and destroyed portions of her property, as well as interfered with her quiet and peaceful enjoyment of her property. Pursuant to a show cause order issued by the trial court, a hearing relative to Ms. Brehm's petition was held on November 20, 2014. The Amackers appeared at the hearing without legal counsel.

At the hearing, Mrs. Amacker testified that when she and her husband purchased their property from the Daltons in 2003, Mr. Dalton agreed to furnish a 60-foot right-of-way as indicated on a plat attached to their purchase agreement. Mrs. Amacker testified that the plat that was attached to the purchase agreement showed 12 acres with a 60-foot right-of-way running along the eastern edge of all 12 acres to Parker Road. Although Mrs. Amacker testified regarding the purchase agreement with the attached plat, and also about the act of sale whereby the Daltons acquired the land in dispute, the actual documents were not introduced into evidence at the hearing.

Ms. Brehm also testified at the hearing. She identified several photographs that were introduced into evidence. Some of the photos depicted Mr. Amacker and the Amackers' thirteen-year-old daughter driving on or along Morning Mist Lane on a four wheeler. One photo showed what appears to be five people riding on a four wheeler as it was being driven by Mr. Amacker. Other photos showed Mrs. Amacker, the Amackers' daughter, and some persons that Ms. Brehm identified as being guests of the Amackers, walking some distance from Morning Mist Lane in a grassy area adjacent to the gravel roadway. Ms. Brehm also identified some photos of flags that had been placed on her property by Mrs. Amacker to mark the distance of where the 60-foot servitude claimed by the Amackers would extend onto Ms. Brehm's property.

In identifying most of the photos, Ms. Brehm stated that she either took the photos personally or the photos were taken by security cameras that she had placed on her property. She explained that some of the photos introduced into evidence not only showed Mr. Amacker walking on her property some distance from Morning Mist Lane, but the photos also showed Mr. Amacker moving or tampering with Ms. Brehm's security cameras. Other photos identified by Ms. Brehm show grass that she claimed was "all torn up," missing, or dying because of people driving on her property, beyond the 60-foot servitude claimed by the Amackers.

Ms. Brehm also recounted how the Amackers had: removed flags she had placed on her property to mark areas that she believed were unsafe; tom down a gate at the entrance of Morning Mist Lane despite possessing a key to the gate; hindered a worker she had hired from constructing a fence on her property along the length of Morning Mist Lane; and played loud, vulgar music to disturb her peaceful enjoyment of her property.

In addition to the foregoing evidence, a copy of Ms. Brehm's June 29, 2009 act of sale, the 1999 recorded right of way agreement, and incident reports from the Washington Parish Sheriff's Office, were introduced into evidence.

After hearing the testimony and considering the other evidence presented, the trial court ruled in favor of Ms. Brehm, declaring that her property was only subject to a servitude of passage the width of the existing gravel road, which is about 12 feet in width. The trial court assessed damages against the Amackers in the amount of $1,358.00, for the lost wages and emotional distress suffered by Ms. Brehm, plus court costs. The trial court also issued a permanent injunction against the Amackers prohibiting them and their agents, assigns, or anyone acting on their behalf from "veering off [Morning Mist Lane] onto [Ms. Brehm's] property harassing her, yelling at her, cursing her or her guests, and playing excessively loud music any time of the day or night such that it would interfere with [Ms. Brehm's] peaceful possession of her property." A written judgment to that effect was signed by the trial court on December 29, 2014.

Notice of the December 29, 2014 judgment was issued on January 13, 2015. Following the hearing, however, the Amackers secured legal counsel. On Friday, January 23, 2015, counsel for the Amackers filed a pleading entitled "Motion to Enroll as Counsel of Record and Motion for New Trial." The trial court granted the motion to enroll and set the motion for new trial for a hearing.

In conjunction with the motion for new trial, Mrs. Amacker submitted an "Affidavit of Verification," wherein she stated that at the original hearing, she had attempted to introduce a certified copy of the credit sale by which she and her husband had acquired their property from the Daltons. She explained that she failed to do so because when she presented the document to counsel for Ms. Brehm, he "shook his head" and handed the document back to her. Mrs. Amacker also stated that she telephoned Mr. Dalton on October 28, 2014, at which time she stated that Mr. Dalton told her he "remembered establishing the sixty (60) foot servitude for the benefit of all four (4) of the three (3) acre tracts which he subdivided and sold," but she did not receive Mr. Dalton's written confirmation of his recollections until January 22, 2015. The Amackers attached to their motion for new trial a copy of the January 22, 2015 correspondence from Mr. Dalton, which included a copy of a plat signed by the Amakers as purchasers and the Daltons as sellers. The Amackers also attached a copy of the credit sale whereby they acquired their property from the Daltons.

Prior to the hearing on the Amackers' motion for new trial, Ms. Brehm filed a motion for contempt, alleging that the Amackers had violated the court's December 29, 2014 judgment "by intimidating and threatening workers on [her] property and interfering with [her] peaceful enjoyment of her property." Accordingly, on March 16, 2015, the trial court considered both the Amackers' motion for new trial and Ms. Brehm's motion for contempt. Following a hearing, the trial court denied the Amackers' motion for new trial and granted Ms. Brehm's motion for contempt, finding that the Amackers had violated the December 29, 2014 judgment of the court. In a judgment signed April 20, 2015, the trial court ordered the Amackers to pay Ms. Brehm's attorney fees for the proceeding in the amount of $1,500.00, court costs in the amount of $340.00, and a fine in the amount of $250.00. The Amackers later filed a motion to devolutively appeal the December 29, 2014 and the April 20, 2015 judgments, which the trial court granted by an order signed May 15, 2015.

ISSUES PRESENTED FOR REVIEW

In this appeal, the Amackers raise the following issues for our consideration:

1. Whether the Motion for New Trial filed by the defendants-appellants was timely filed under Louisiana law.
2. Whether the defendants-appellants were entitled to a New Trial under Louisiana law.
3. Whether the defendants-appellants should have been found in Contempt of the Trial Court's December 29, 2014 Judgment, and whether the Motion for Contempt filed by the plaintiff-appellee should have even been considered by the Trial Court.
4. Whether Attorney's fees should have been awarded at all in connection with the Motion for Contempt filed by the plaintiff-appellee and, if so, what should the proper amount of such Attorney's fees have been?

DISCUSSION

Motion to Dismiss

After this matter was lodged with this court, Ms. Brehm filed a motion to dismiss the Amackers' appeal. Another panel of judges deferred ruling on the motion and instead referred the motion to our panel for consideration in connection with the instant appeal.

In her motion, Ms. Brehm first argues that the Amackers' appeal should be dismissed for failure to adhere to this court's briefing schedule. It should be pointed out that Ms. Brehm's motion to dismiss was filed in January 2016, following which additional extensions of the briefing deadlines were granted. In the last notice issued by this court, the Amackers were notified that their appeal would be dismissed if their brief was not filed with this court on or before May 6, 2017. An appellants' brief was filed by the Amackers on May 6, 2017. Thus, we find no merit in Ms. Brehm's request to dismiss the Amackers' appeal on the basis of their failure to comply with this court's briefing schedule.

As an alternative basis for her motion, Ms. Brehm asserts that the Amackers'

appeal should be dismissed as untimely because they failed to perfect their suspensive appeal within 30 days of the appealable order or judgment. In this case, the hearing on the Amackers' motion for new trial was held on March 16, 2015, and the trial court pronounced the following ruling in open court at the conclusion of the hearing:

I find the motion was untimely filed. For that reason alone, I shouldn't consider it. But I did let them introduce their documents in case they want to appeal all this, and they feel like they didn't get a fair shot by not getting those documents. I don't think the documents, while relevant, does [sic] not prove that there is a sixty-foot right-of-way on the servitude going across Ms. Brehm's property.

Following this pronouncement, the trial court ordered counsel for Ms. Brehm to prepare a judgment. The written judgment, signed by the trial court on April 20, 2015, simply states that the "Motion for New Trial is denied." A motion for suspensive appeal was filed by the Amackers on April 15, 2015.

If an interlocutory judgment is one denying a new trial, the clerk of the trial court is required to mail notice of the denial to each party, and the delay for appealing the final judgment commences to run from the date the trial clerk mails notice of the denial. La. C.C.P. art. 1914(C). Although a notice of judgment appears in the record, the notice does not state the date of mailing, but appears to indicate that notice was issued by the trial clerk on the same date as the judgment was signed. Thus, using the April 20, 2015 date, the Amackers' appeal is clearly timely, as they filed their initial motion for a suspensive appeal on April 15, 2015, and later filed a motion to convert the suspensive appeal to a devolutive appeal on May 15, 2015.

Nevertheless, in her appellee's brief, Ms. Brehm additionally argues that the Amackers' appeal should be deemed untimely due to their motion for new trial being untimely filed. For the following reasons, we find that the Amackers timely filed the motion for new trial.

Under La. C.C.P. art. 1974, the delay for applying for a new trial is seven days, exclusive of legal holidays, with the delay commencing to run on the day after the clerk has mailed the notice of judgment as required by La. C.C.P. art. 1913. Once the seven-day period for filing a motion for new trial has passed, and no motion for new trial is filed or said motion is untimely filed, the judgment becomes final, and appellate delays begin to run. Nelson v. Teachers' Retirement System of Louisiana, 10-1190, pp. 4-5 (La. App. 1st Cir. 2/11/11), 57 So.3d 587, 589-590. An appeal may be taken by obtaining an order for appeal within the delay set forth by La. C.C.P. arts. 2087 or 2123. See La. C.C.P. art. 2121.

Article 2087 provides that an appeal that does not suspend the effect or execution of an appealable order or judgment may be taken within sixty days of either: (1) the expiration of the delay for applying for a new trial, as provided in La. C.C.P. art. 1974, if no application for new trial is timely filed; or (2) the date of notice of the court's denial of a timely motion for new trial. Article 2123 similarly provides that an appeal that suspends the effect or execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of either: (1) the expiration of the delay for applying for a new trial, as provided in La. C.C.P. art. 1974, if no application for new trial is timely filed; or (2) the date of notice of the court's denial of a timely motion for new trial. The untimely filing of a motion for new trial does not interrupt the delay for timely taking an appeal, even if the trial court does not recognize the motion as untimely. Nelson, 10-1190 at p. 5. 57 So.3d at 590.

As previously mentioned, notice of the December 29, 2014 judgment was issued by the trial clerk on January 13, 2015. January 13, 2015 was a Tuesday; thus, the delay for applying for a new trial would have commenced on the following Wednesday. Moreover, the following Saturday, Sunday, and Monday, with the latter being a holiday in honor of Dr. Martin Luther King, Jr., were all legal holidays. See La. R.S. 1:55. Thus, excluding the legal holidays, the Amackers had until Friday, January 23, 2015, to file their motion for new trial.

The issue of the timeliness of the Amackers' motion for new trial was first raised by Ms. Brehm in her opposition to the motion. In her opposition, Ms. Brehm stated that the Amackers' motion for new trial was filed on January 23, 2015, but she nevertheless argued that the motion was untimely based on her contention that the motion had to be filed by January 21, 2015. On appeal, she now claims that because the trial clerk recorded the motion as being received on Monday, January 26, 2015, the motion was untimely.

The record before us contains copies of the fax cover sheets and transmission verification reports that were generated in connection with the Amackers' fax filing, all of which display a fax date of January 23, 2015. The record also contains copies of the "Fax Filing Confirmation" sheet issued by the trial clerk as well as a stamped copy of the Amackers' motion displaying January 26, 2015, as the date the motion for new trial was filed with the trial court. On July 16, 2016, this court issued an interim order directing the clerk of the trial court "to make a determination of the precise date on which appellants' Motion to Enroll and Motion for New Trial were fax-filed with the district court" and to supplement our record with that determination and any supporting documentation. Pursuant to that order, the chief clerk of the civil division of the trial court submitted an affidavit wherein she stated that faxed documents received before 4:30 p.m. are clocked in that business day; however, documents received after hours are clocked in the next business day. Thus, the chief clerk stated that "[t]he Motion to Enroll as Counsel of Record and Motion for New Trial in Docket No. 107519["]I" was clocked in by our office on January 26, 2015 at 8:01 am as seen in the appellate record on page 167, and a fax confirmation was sent at 8:51 am as seen in the appellate record at page 164."

Considering the transmission verification reports submitted by the Amackers in conjunction with the affidavit of the chief civil clerk of the trial court, it appears that counsel for the Amackers fax filed the motion for new trial after 9:00 p.m. on Friday, January 23, 2015. A faxed filing is deemed complete at the time the facsimile transmission is received by the clerk of court. La. R.S. 13:850(A). The statute does not require that the transmission be received during the regular office hours of the clerk's office. Antoine v. McDonald's Restaurant, 98-1736, p. 4 (La. App. 3d Cir. 5/5/99), 734 So.2d 1257, 1259, overruled on other grounds by Hunter v. Morton's Seafood Restaurant and Catering, 08-1667 (La. 3/17/09), 6 So.3d 152. Hence, a facsimile transmission is deemed timely if all of the other requirements of La. R.S. 13:850 are met, even if transmission is received after the regular office hours of the clerk's office, so long as the transmission is before the midnight deadline of the delay period. See Antoine, 98-1736 at p. 4, 734 So.2d at 1259 ; see also Lloyd v. Monroe Transit Authority ex rel. City of Monroe, 50,292, p. 8 (La. App. 2d Cir. 1/13/16), 185 So.3d 866, 870, writ denied, 16-0277 (La. 4/8/16), 191 So.3d 585 (wherein the Second Circuit agreed "with the Third Circuit's conclusion that the fax transmission need not be received during regular working hours so long as a transmission occurred before midnight on the final date for the running of a prescriptive period"). As the evidence in the record before us shows that counsel for the Amackers transmitted the fax filing before midnight on January 23, 2015, the motion for new trial was timely. Accordingly, we deny the motion to dismiss the Amackers' appeal.

Motion for New Trial

As we have found that the Amackers' motion for new trial was timely filed, we must now consider whether the trial court erred in denying the motion for new trial. In considering this issue, we must first reflect on the specific rulings made by the trial court in the judgment appealed, as well as the posture of the proceedings relative to the judgment rendered.

The denial of a motion for new trial is generally a non-appealable interlocutory judgment. However, an appellate court may consider interlocutory judgments as part of an unrestricted appeal from a final judgment. Bailey v. Robert V. Neuhoff Limited Partnership, 95-0616, pp. 4-5 (La. App. 1st Cir. 11/9/95), 665 So.2d 16, 18, writ denied, 95-2962 (La. 2/9/96), 667 So.2d 534. As this appeal relates to the propriety of the trial court's determination of the extent of the predial servitude, the issuance of injunctive relief, and the award of damages related thereto, we may consider the motion for new trial because it relates directly to those rulings by the trial court. See Bailey, 95-0616 at p. 4, 665 So.2d at 18. In this instance, we find the trial court's judgment to be clearly contrary to the law and evidence, and therefore, the trial court erred in denying the motion for new trial. See La. C.C.P. art. 1972(1).

These proceedings were instituted by Ms. Brehm in a petition filed on October 30, 2014, wherein she sought a declaratory judgment, injunctive relief, and damages. In her prayer for relief, Ms. Brehm specifically requested that the trial court: (1) issue a judgment declaring and recognizing that her property is only burdened by the predial servitude established under the 1999 right of way agreement; (2) issue a preliminary injunction prohibiting the Amackers from using any portion of Ms. Brehm's property beyond the predial servitude established in the 1999 right of way agreement and from interfering with her quiet and uninterrupted possession of her property; (3) issue a permanent injunction to enjoin the Amackers from using any portion of Ms. Brehm's property beyond the predial servitude established in the 1999 right of way agreement and from interfering with her quiet and uninterrupted possession of her property; and (4) award damages. The hearing notice issued by the trial court in connection with the show cause order directed the parties to show cause:

why a Judgment should not be issued declaring the servitude of passage to be limited to the gravel road and for the sole purpose of providing access to Defendant's property, issuing a preliminary injunction prohibiting Defendants from using any portion of Plaintiff's property other than the existing gravel road as described in instrument registered in COB 497, folio 126; prohibiting Defendants from using the existing gravel road for any purpose other than the purpose conferred in instrument registered in COB 497, folio 126; and prohibiting Defendants from interfering with Ms. Brehm's quiet and uninterrupted possession of the property.

At the November 20, 2014 show cause hearing, the Amackers appeared as self-represented parties. Following the hearing, the trial court rendered judgment declaring the predial servitude at issue to be the extent of the gravel road described in the 1999 right of way agreement. The trial court also permanently enjoined the Amackers from using any portion of Ms. Brehm's property outside of the gravel road established in the 1999 right of way agreement and permanently enjoined the Amackers from harassing Ms. Brehm in any way. Finally, the trial court awarded Ms. Brehm damages in the total amount of $1,785.06. No reference to a preliminary injunction appears in the judgment.

While in some cases the merits of an action may be decided during an interlocutory proceeding, this is only where the parties have expressly agreed to submit the case for final decision at the hearing on the rule for a preliminary injunction. Adler v. Williams, 16-0103, p. 11 (La. App. 1st Cir. 9/16/16), 203 So.3d 504, 514. In this case, although the show cause hearing notice did reference declaratory relief and the trial court did declare at the commencement of the show cause hearing that the matter to be heard was Ms. Brehm's "Petition for Possessory Action, Declaratory Judgment, and Temporary Restraining Order with Injunctive relief and damages," as pro se litigants, it cannot be said that the Amackers' failure to raise any objection to the hearing notice or the trial court's declaration regarding the scope of the hearing was an "express" agreement to submit the case for final decision at the hearing on the rule for a preliminary injunction.

Normally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury, loss, or damage if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. City of Baton Rouge/Parish of East Baton Rouge v. 200 Government Street, LLC, 08-0510, p. 4 (La. App. 1st Cir. 9/23/08), 995 So.2d 32, 35, writ denied, 08-2554 (La. 1/9/09), 998 So.2d 726. Whereas, a permanent injunction may be issued only after a trial on the merits at which the burden of proof is a preponderance of the evidence. 200 Government Street, LLC, 08-0510 at p. 5, 995 So.2d at 36. The principal demand for a permanent injunction can only be definitively disposed of after a full trial under ordinary process, even though the hearing on the summary proceedings to obtain the preliminary injunction might have addressed issues on the merits. McCurley v. Burton, 03-1001, p. 4 (La. App. 1st Cir. 4/21/04), 879 So.2d 186, 189.

In this case, we find that the trial court exceeded the parameters of its authority in granting a declaratory judgment, permanent injunctions, and awarding damages pursuant to the hearing for preliminary injunctions. Thus, the December 29, 2014 judgment must be vacated.

Contempt Ruling

As to the trial court finding the Amackers in contempt of its December 29, 2014 judgment, we find merit in their assertion that such a determination was unwarranted considering their timely filed motion for new trial. In this instance, the trial court found the Amackers to be in constructive contempt, as it found them to be in "[w]ilful disobedience of [a] lawful judgment ... of the court." See La. C.C.P. art. 224(2). Although a trial court has discretion to determine whether to find a person guilty of constructive contempt of court, a finding that a person wilfully disobeyed a court order in violation of Article 224(2) must be based on a finding that the accused violated an order of the court "intentionally, knowingly, and purposefully, without justifiable excuse." Lang v. Asten, Inc., 05-1119, pp. 1-2 (La. 1/13/06), 918 So.2d 453, 454. In Lang, the Louisiana Supreme Court held that the parties found in contempt by the district court in that case were clearly justified in failing to obey the district court's order because the order the parties disobeyed was the subject of a motion for new trial, followed by an immediate appeal. Lang, 05-1119 at p. 2, 918 So.2d at 454.

Likewise, we find the fact that the Amackers filed a motion for new trial and later an immediate appeal of the December 29, 2014 judgment in this case constitutes reasonable justification for their failure to strictly adhere to the prohibitions of the December 29, 2014 judgment. This finding is further supported by the evidence presented during the hearing on the motion for contempt.

At that hearing, Ms. Brehm testified that she filed the motion for contempt because the Amackers interfered with the construction of a fence along Morning Mist Lane. She stated that the Amackers advised the worker she had hired to construct the fence that legal proceedings were still pending regarding the servitude. As such, Ms. Brehm said that the Amackers showed the worker documents and threatened to call the sheriff's office if he continued constructing the fence.

At the contempt hearing, Mr. Amacker admitted approaching the worker and informing him "[w]ell, do you know we hired an attorney and we are objecting to the judgment ruling, so you might want to get a hold of Mr. Danenhower [counsel for Ms. Brehm]." Mr. Amacker further testified that the worker told him that if Mr. Amacker could show proof that there was a sixty foot right-of-way, he would take it into consideration. Mr. Amacker said he then told the worker that he would have Mrs. Amacker bring "something" to the worker and that he, Mr. Amacker, would contact his legal counsel and not the police. Mrs. Amacker also testified at the hearing and corroborated the testimony of her husband. She further stated that she gave several documents to the worker and told him "[j]ust so you honestly can't say you don't know."

Thus, considering this evidence and the jurisprudence, we reverse the judgment of contempt and the resulting penalties imposed therewith, which would include the award of attorney fees. Accordingly, as result of this determination, we pretermit consideration of the final issue raised by the Amackers in this appeal regarding the award of attorney fees.

CONCLUSION

For the foregoing reasons, we vacate the December 29, 2014 judgment. We further reverse the April 20, 2015 judgment denying the Amackers' motion for new trial and holding them in contempt of court, and instead render judgment granting the Amackers' motion for new trial. Finally, we remand this matter to the trial court for further proceedings consistent with this opinion. All costs of this appeal are equally assessed to the parties.

DECEMBER 29, 2014 JUDGMENT VACATED; APRIL 20, 2015 JUDGMENT REVERSED; MOTION FOR

NEW TRIAL GRANTED AND CASE REMANDED FOR FURTHER PROCEEDINGS.

Crain, J. agrees in part and concurs in part (part vacating contempt order)

      A plat and other evidence in the record before us indicate that the tract owned by the Daltons was comprised of 12 acres.

      The trial court recognized, and the parties have essentially confessed, that the gravel road running along the eastern border of the parties' property has been established as a "perpetual servitude" based on the "Right of Way Grant" executed by Philip Kenneth Parker and Wood Scales, Inc. in June 1999; however, we observe that the servitude created in that document describes the servitude as being located on the property of Philip Parker rather than Wood Scales, Inc., which is parties' predecessor in title. Specifically, the document recites:
      [F]or a valid consideration of $500.00, and in order to eliminate any question as to the right of way to the property of Wood Scales, Inc. appearer, Philip Kenneth Parker herein grants and establishes for the sole use and benefit of Wood Scales, Inc., its successors and assigns, and in favor of the above described property of Wood Scales, Inc. a perpetual servitude of passage for a roadway over and across the existing gravel road which runs from the north margin of Parker Road across the property of Philip Kenneth Parker as described hereinabove to the above described property of Wood Scales, Inc.
      According to the 1999 document, Parker's property was located in Section 38, Township 4 South, Range 12 East in Washington Parish, whereas the property of Wood Scales, Inc. (as well that of the parties to this dispute) was located in Section 54, Township 4 South, Range 12 East in Washington Parish. The 1999 document was recorded in the conveyance records of Washington Parish at COB 497, folio 126.

      The municipal addresses of the parties' respective properties are shown as being located on Morning Mist Lane.

      Ms. Brehm also identified two photos of what she stated was a gate lying on the ground. She stated those photos were taken by her fiancé, Gilly Charbonnet, while he was accompanied by a sheriff's deputy who was investigating why the gate had been torn down.

      Mr. Amacker also made some remarks throughout the hearing, although he was not formally called to testify. As the court explained, "a lot of time people representing themselves testify in lieu of asking questions," so the trial court had Mr. and Mrs. Amacker both sworn in at the beginning of the hearing.

      As will be discussed later in this opinion, the parties acknowledge and the record supports the conclusion that the Amackers' motion for new trial was fax filed on January 23, 2015.

      According to the transmission verification reports, counsel for the Amackers faxed the motion to the trial court at 9:02 p.m. and served counsel for Ms. Brehm with the motion via fax at 9:21 p.m.


author: CRAIN, J.

text:
    Kacie Magee BREEN v. Jeanie McAndrew HOLMES, Kimberly Jo Graham, "Mandevillenative," Amanda Terrell, "Blonde4u," "Breen Team," Jenafer Mulkey Sheridan, Toni "Whodat" Hawkins, Nikki Costanza, Desiree Waguespack Maestri, "WeAresinkingfast," Sheldon Fleming, and Dianne Arndt
    NO. 2016 CA 1591
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 7, 2017
    Richard Ducote, Covington, Louisiana, Attorney for Plaintiff/Appellant, Kacie Magee Breen
    Anne Spell, Covington, Louisiana, Attorney for Defendants/Appellees, Dianne Arndt and Amanda Terrell
    James R. Nieset, Jr., Kristopher M. Gould, Kelsey L. Jarrett, New Orleans, Louisiana, Attorneys for Defendant/Appellee, Desiree Waguespack Maestri
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

This is an appeal of a judgment granting a special motion to strike, filed pursuant to Louisiana Code of Civil Procedure article 971, and dismissing the plaintiff's defamation claims against certain defendants. We affirm.

FACTS AND PROCEDURAL HISTORY

On March 1, 2015, Kacie Magee Breen shot and killed her husband, Wayne Breen, a St. Tammany Parish physician. She maintains she was defending herself from an attack and reasonably believed she was in imminent danger of death or great bodily harm. Following the shooting, local media attention focused on Dr. Breen's death, the St. Tammany Parish coroner's classification of the death as a homicide, the criminal investigation that resulted in Breen not being arrested, charged, indicted, or prosecuted for her husband's death, and Breen's actions related to Dr. Breen's estate.

In January 2016, Breen filed suit alleging the defendants defamed her in internet posts commenting about events before, at the time of, and after Dr. Breen's death. She claimed all the statements about her, including those calling her a murderer, were false and caused her shame, humiliation, discomfort, loss of reputation, public ridicule, loss of income, and mental anguish.

Three of the defendants, Dianne Arndt, Desiree Waguespack Maestri, and Amanda Terrell, filed a special motion to strike Breen's claims. They asserted the statements attributed to them were expressions of opinion made without knowing or reckless falsity about a matter of public concern and, therefore, are protected by the free speech guarantees of both the United States and Louisiana constitutions. The defendants claimed their statements were made while discussing and sharing views on closed internet sites dedicated to discussing Dr. Breen's death, and following news reports that Breen would not be arrested for killing him. They argued Breen's suit is meritless and was brought to chill their exercise of free speech. Breen opposed the special motion to strike, arguing the motion is inapplicable to this suit because the defendants' statements were not made about an issue of public interest, and she was not and is not a public figure.

The trial court granted the special motion to strike in favor of Arndt and Maestri and denied it as to Terrell. Breen appeals the judgment dismissing her claims against Arndt and Maestri.

ANSWER TO APPEAL

Terrell filed an "answering brief on appeal," seeking review of the denial of her special motion to strike and asking this court to modify, revise, or reverse the judgment to conform it with the ruling in favor of Arndt and Maestri. An appellee desiring to have a judgment modified, revised, or reversed must answer the appeal and state the relief demanded not later than fifteen days after the return day or the lodging of the record, whichever is later. La. Code Civ. Pro. art. 2133. Here, the return date was November 30, 2016. The record was lodged December 6, 2016. Terrell filed her answering brief January 3, 2017, more than fifteen days after the lodging date. Consequently, Terrell's answer to Breen's appeal was untimely. We find no merit to Terrell's assertion that supplementation of the appellate record with an amended judgment affected the date of lodging. Accordingly, Terrell's answer to Breen's appeal is dismissed.

SPECIAL MOTION TO STRIKE

A special motion to strike is an extraordinary procedural mechanism that allows for the summary dismissal of certain meritless lawsuits that, merely by being filed, chill the valid exercise of the constitutional right of free speech and of petition for redress of grievances. See La. Code Civ. Pro. art. 971 ; 1999 La. Acts 734, § 2; see also Shelton v. Pavon , 17-0482 (La. 10/18/17), --- So.3d ----, ---- (2017 WL 4737111). A defendant asserting a special motion to strike bears the initial burden of proving the plaintiff's cause of action is subject to such a motion by making a prima facie showing that her comments are protected by either the right of petition or of free speech under either the United States or Louisiana constitutions and in connection with a public issue. La. Code Civ. Pro. art. 971 ; Shelton , --- So.3d at ---- ; Thinkstream, Inc. v. Rubin , 06-1595 (La. App. 1 Cir. 9/26/07), 971 So.2d 1092, 1100, writ denied , 07-2113 (La. 1/7/08), 973 So.2d 730. If a defendant satisfies this initial burden, the burden shifts to the plaintiff to demonstrate a probability of success on the claim. La. Code Civ. Pro. art. 971 ; Shelton , --- So.3d at ---- ; Thinkstream , 971 So.2d at 1100.

A ruling on a special motion to strike is reviewed de novo on appeal to determine whether the trial court was legally correct. See Roper v. Loupe , 15-1956, 2016 WL 6330407, p.3 (La. App. 1 Cir. 10/28/16). The appellate court gives no special weight to the trial court findings, but exercises its constitutional duty to review questions of law and renders a judgment on the record. Bayhi v. Louisiana Television Broadcasting, LLC , 17-0100, 2017 WL 4082241, p.4 (La. App. 1 Cir. 9/15/17) ; Starr v. Boudreaux , 07-0652 (La. App. 1 Cir. 12/21/07), 978 So.2d 384, 388.

Our initial consideration is whether Arndt and Maestri, as the parties asserting the special motion to strike, met their burden of demonstrating that (1) the suit stems from an act related to free speech, and (2) the speech is connected to a public issue. See Shelton , --- So.3d at ----. Article 971 specifically provides that an "[a]ct in furtherance of a person's right of ... free speech under the United States or Louisiana Constitution in connection with a public issue" includes, but is not limited to, "[a]ny ... conduct in furtherance of the exercise of ... the constitutional right of free speech in connection with a public issue or an issue of public interest." Thus, whether Breen's claims are subject to a special motion to strike depends on whether the comments of the defendants were about a public issue or issue of public interest.

A public issue is a matter of public interest or public concern. See Roper , 2016 WL 6330407 at p.4 ; Starr , 978 So.2d at 391. Speech in relation to a matter of public concern is 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) ; Shelton , --- So.3d at ----. Suits involving private disputes between private parties generally fall outside the ambit of Article 971. Shelton , ---So.3d at ----. To determine if speech is a matter of public concern, the court must consider the content, form, and context of the statements as revealed by the entire record. See Connick , 103 S.Ct. at 1690.

The allegedly defamatory comments relate to Breen shooting and killing her husband and the criminal investigation leading to the decision to not charge Breen with murder. The evidence filed with the motion shows the local media published multiple news stories related to the shooting, the St. Tammany Parish Coroner classifying Dr. Breen's death as a homicide, the investigation by the St. Tammany Parish Sheriff's office, acts by Breen related to Dr. Breen's family and estate and, ultimately, the decision not to prosecute Breen. The affidavits of both Arndt and Maestri establish that they live in St. Tammany Parish and the internet groups they joined were created specifically to share views and feelings on the topics being reported in the local media, including whether Breen should be criminally prosecuted.

"[O]ne of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder." Gregg v. Georgia , 428 U.S. 153, 226, 96 S.Ct. 2909, 2949, 49 L.Ed.2d 859 (1976) (White, J., concurring). Long ago the United States Supreme Court explained, "In criminal prosecutions the government is acting simply as the instrument of the public in enforcing penal laws for the protection of society. In that enforcement all citizens are interested." United States v. Wood , 299 U.S. 123, 149, 57 S.Ct. 177, 186, 81 L.Ed. 78 (1936) ; see also Kennedy v. Sheriff of East Baton Rouge , 05-1418 (La. 7/10/06), 935 So.2d 669, 683 (recognizing that the possible commission of a crime is a matter affecting the public interest). Breen admitted shooting and killing her husband. Whether she was legally justified in doing so, and whether she would be criminally prosecuted for murder, was a matter of public concern in the community within the meaning of Article 971.

Breen argues that since the media discussed "the abundant facts indicating she acted lawfully in self-defense," and because no facts were shown or reported to indicate she murdered her husband, there was no public debate on the issue. She notes that all law enforcement investigations concluded the shooting was justified and that she was "cleared" by a St. Tammany Parish grand jury of any criminal culpability. The grand jury decision not to indict Breen does not remove the matter from public concern. An investigation alone can be a matter of public concern. A grand jury proceeding is but one step in the investigatory process. The law is clear that "[t]he failure or refusal of a grand jury to indict a defendant does not preclude a subsequent indictment by the same or another grand jury, or the subsequent filing of an information or affidavit against [her], for the same offense." La. Code Crim. Pro. art. 386 ; Does v. Foti , 11-0014 (La. App. 1 Cir. 12/8/11), 81 So.3d 101, 109, writ denied , 12-0057 (La. 3/2/12), 84 So.3d 537. The fact that Breen was not arrested or charged, and a grand jury decided not to indict her, does not remove the matter from public concern.

We find that Arndt and Maestri met their burden of establishing that their comments related to Dr. Breen's death and whether Breen should be criminally prosecuted for killing him constitute a matter of public concern. Having satisfied their initial burden of proof on the special motion to strike, the burden then shifted to Breen to establish, through pleadings and supporting affidavits stating the facts upon which liability is based, a probability of success on her defamation claims. See La. Code Civ. Pro. art. 971A.

Defamation is a tort involving the invasion of a person's interest in his or her reputation and good name. Costello v. Hardy , 03-1146 (La. 1/21/04), 864 So.2d 129, 139. To prevail on a defamation claim, the plaintiff must prove by a preponderance of the evidence (1) defamatory words, (2) publication, (3) falsity, (4) malice, and (5) resulting injury. Starr, 978 So.2d at 389 ; Patton v. O'Bannon , 11-0989, 2011 WL 6754099, p. 3 (La. App. 1 Cir. 12/21/11). Thus, for a statement to be actionable, it must be false, defamatory, and concern another. Fitzgerald v. Tucker , 98-2313 (La. 6/29/99), 737 So.2d 706, 716. However, many statements, though objectionable, are protected by constitutional guarantees of free speech. See Fitzgerald , 737 So.2d at 716.

Speech on matters of public concern enjoys enhanced constitutional protection. See Romero v. Thomson Newspapers (Wisconsin), Inc. , 94-1105 (La. 1/17/95), 648 So.2d 866, 869, cert. denied , 515 U.S. 1131, 115 S.Ct. 2556, 132 L.Ed.2d 810 (1995). "[A] statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." Milkovich v. Lorain Journal Co. , 497 U.S. 1, 20, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990) ; see also Romero , 648 So.2d at 870. This is because a statement of opinion based totally on the speaker's subjective view, without expressly stating or implying the existence of underlying facts, is a purely subjective statement that can be neither true nor false. Bussie v. Lowenthal , 535 So.2d 378, 381 (La. 1988). The constitutional protection for statements of opinion applies in all cases, regardless of whether the plaintiff is a public figure. Bussie , 535 So.2d at 381 n.6 ; Mashburn v. Collin , 355 So.2d 879, 885 (La. 1977).

Whether a statement constitutes a constitutionally protected assertion of opinion is a question to be resolved by the court. See Fitzgerald , 737 So.2d at 716. This requires examination of the statements and the circumstances under which they were made. Mashburn , 355 So.2d at 887. The Louisiana Supreme Court has explained:

In determining whether an expression is a statement of fact or opinion under the common law, words must be read in their context. Words which, taken by themselves, would appear to be a positive allegation of fact, may be shown by the context to be a mere expression of opinion or argumentative influence. On the other hand, if a statement, ostensibly in the form of an opinion, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication, the expression gives rise to the inference there are undisclosed facts that justify the opinion. In such a case the expression, although in the form of an opinion, in reality implies a statement of fact, which is not usually protected by the common law privilege. In order for a statement to be defended as fair comment it must be recognizable by the ordinary reasonable person as opinion and not as a statement of fact.

Mashburn , 355 So.2d at 885-86 (footnotes omitted). Reaffirming this required analysis in a later case, the court stated, "The question of whether a statement is one of fact or opinion depends upon the circumstances in which the statement was made, and the reasonable inferences which may be drawn from a statement of opinion will vary depending upon the circumstances of the case." Fitzgerald , 737 So.2d at 718.

The claims against Arndt and Maestri are premised on single internet posts attributed to each of them. Neither post is dated, but the record establishes they were made before Breen filed suit on January 6, 2016, which was less than one year after Dr. Breen's death on March 1, 2015. The record additionally establishes that during that year, the media focused continuous attention on the shooting, the classification of the death as a homicide by the coroner, the claim that Breen acted in self-defense during a violent altercation, the legal "battle" between Breen and Dr. Breen's heirs over his estate, the removal by Breen of items from Dr. Breen's office, the criminal investigation into Dr. Breen's death, protests expected at the courthouse related to these matters, the decision not to arrest Breen, court filings recounting the self-defense claim, a civil wrongful death suit against Breen, and this defamation suit.

The allegedly defamatory statement attributed to Arndt is:

I guarantee that she had this plot in the makings for sometime. There is no doubt that she staged all the abuse charges against him knowing she could use it later. She is a wicked person.

Arndt averred in her affidavit that she had known Dr. Breen for twenty-one years, believed he saved the lives of her daughter and grandchild, and was sad about his death. She joined a Facebook group called "Rest In Peace Dr. Breen," for people grieving Dr. Breen's death. She recalled reading that the coroner classified Dr. Breen's death as a homicide and expressed frustration with the decision not to arrest Breen. Arndt stated she joined what she believed was a closed Facebook group called "Justice For Dr. Breen," for people angry and upset that Breen was not arrested and who wanted to discuss whether Breen should be arrested and prosecuted. Arndt averred that any comment she posted was strictly her opinion that Breen should be arrested.

The allegedly defamatory statement attributed to Maestri is:

The more I learn about this tragedy, the more I am convinced that Dr. Breen's death was premeditated murder and not manslaughter in a moment of passion. How, in God's name, has this woman avoided arrest? ? ? My most sincere sympathy to the Breen children that they must suffer further as they grieve the loss of their father.

Maestri averred in her affidavit that she had known Dr. Breen for two years, and considered him a source of strength and support for her family. She stated she posted her condolences to his family on the funeral home's grief page, where she also read about the closed Facebook group called "Rest In Peace Dr. Breen," for people grieving the death of Dr. Breen. Maestri stated she believed the purpose of the group was to read about and try to understand what happened to Dr. Breen. Maestri also stated she joined the Facebook group called "Justice For Dr. Breen," which helped her understand the loss of Dr. Breen. She indicated she is still upset Breen was not arrested and outraged by what she believes is an injustice. She explained that any comment she posted was her opinion about Dr. Breen's death and whether Breen should be arrested and prosecuted.

Breen does not dispute the assertions by Arndt and Maestri that their comments were posted in internet forums dedicated to discussing Dr. Breen's death and whether she should be criminally prosecuted.

In making their statements, neither Arndt nor Maestri represented that they are a legal authority on the distinctions between the grades of criminal homicide and the legal definition of justifiable homicide. See La. R.S. 14:20 ; La. R.S. 14:29. Nor does either statement imply that the speaker is privy to undisclosed facts. Rather, the evidence establishes that the statements were made against a backdrop of continuous media reports fixing the public's attention on these issues, specifically whether Breen should be criminally prosecuted for killing her husband, based on the facts being reported.

When considered in context, a reasonable person considering Arndt's and Maestri's statements in the particular forums in which they were made would not believe them to be anything other than the subjective opinions of Arndt and Maestri expressing disagreement with Breen's claim that she acted in self-defense and their criticism of the decision not to criminally prosecute her. Neither statement is an actionable defamatory statement. Rather, both are constitutionally protected statements of opinion. Because Breen failed to establish a probability of success on her defamation claims, the special motion to strike was properly granted.

CONCLUSION

The trial court's December 14, 2016 judgment dismissing the claims against Arndt and Maestri pursuant to the granting of a special motion to strike is affirmed. Costs of this appeal are assessed to Kacie Magee Breen.

ANSWER TO APPEAL DISMISSED; DECEMBER 14, 2016 JUDGMENT AFFIRMED.

Pettigrew, J. concurs and assign reasons

PETTIGREW, J., CONCURS, AND ASSIGNS REASONS.

I respectfully agree with the majority that the death of Dr. Breen and the investigation of his death by the law enforcement authorities was an issue of public concern. However, I must express my concerns about the defendants' statements. I suggest the statements were loose, gossipy, and reflected a lynch-mob mentality. The citizens of Louisiana should beware of the Internet and Facebook. You might find yourselves paying damages to someone.

      In response to a rule to show cause issued by this court, the trial court amended the judgment on December 14, 2016, and specified that the claims were dismissed with prejudice. Considering the decretal language of the amended judgment, we maintain the appeal.

      In support of her argument, Terrell cites Deutsch, Kerrigan & Stiles v. Rault , 389 So.2d 1373, 1375 (La. App. 4 Cir. 1980), writ denied , 396 So.2d 883 (La. 1981), where the fourth circuit found an answer was timely when filed within fifteen days of "the entire record" being lodged with the appellate court. That case dealt with circumstances where an entire volume was missing from the originally lodged record, and is thus factually distinguishable from this case, where the record was merely supplemented with an amended judgment issued in response to a rule to show cause order. Moreover, we find the language of Louisiana Code of Civil Procedure article 2133 clearly and explicitly requires an answer to be filed within fifteen days after the return day or the lodging of the record, whichever is later, and must be construed as written. See Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc. , 06-0582 (La. 11/29/06), 943 So.2d 1037, 1045. The parties in this case were notified that the record was lodged on December 6, 2016. Supplementation of the record did not change that date.

      The record contains no evidence regarding a decision by a grand jury; however, the grand jury's decision was discussed and was not disputed during the hearing before the trial court.

      Even a criminal acquittal does not prohibit an inquiry into civil liability, arguably extending the length of time the matter remains a public concern. See State v. Quatrevingt , 93-1644 (La. 2/28/96), 670 So.2d 197, 210 n.13 (recognizing that due to the lesser burden of proof, success in a civil suit does not depend on obtaining a guilty verdict in a criminal trial and referencing the O.J. Simpson matter as an example, where families of the murdered victims proceeded against Simpson in a civil matter despite a not guilty verdict in the criminal case).

      Courts in other jurisdictions have recognized that internet messaging forums on topics of interest promote a looser, more relaxed communication style. E.g., Too Much Media, LLC v. Hale , 206 N.J. 209, 234-35, 20 A.3d 364, 378-79 (2011) ; Sandals Resorts Int'l Ltd. v. Google, Inc. , 925 N.Y.S.2d 407, 415-16, 86 A.D.3d 32, 43-44 (N.Y. App. Div. 2011). The comments by Arndt and Maestri evidence this in both the language and grammar used.

      Because we find that neither statement implies a false and defamatory fact, we need not consider whether the statements were expressed with malice. See Romero , 648 So.2d at 870.


author: COOKS, Judge.

text:
    Colleen Hawthorn MCCALMONT v. James Addison MCCALMONT, III
    17-644
    Court of Appeal of Louisiana, Third Circuit.
    Opinions rendered December 28, 2017
    Mark F. Vilar, Aaron L. Green, Paul Boudreaux, Jr., Vilar & Green, LLC, 1450 Dorchester Drive, P.O. Box 12730, Alexandria, LA 71303, (318) 442-9533, COUNSEL FOR PLAINTIFF/APPELLEE: James Addison McCalmont, IV, Independent Testamentary Executor for Succession of Colleen Hawthorn McCalmont
    Curtis R. Shelton, Ayres, Shelton, Williams, Benson & Paine, LLC, Suite 1400, Regions Tower, 333 Texas Street, P.O. Box 1764, Shreveport, LA 71166-1764, (318) 227-3500, COUNSEL FOR DEFENDANT/APPELLANT: James Addison McCalmont, III
    Court composed of Sylvia R. Cooks, John D. Saunders and Candyce G. Perret, Judges.
   COOKS, Judge.

The facts in this case are largely undisputed. On August 3, 2016, Colleen Hawthorn McCalmont filed a petition for a "no fault" divorce from James Addison McCalmont, III, under La.Civ.Code art. 102. In that petition, Ms. McCalmont alleged the parties had been living separate and apart since July 31, 2016. Mr. McCalmont was personally served and did not file any answer or responsive pleading.

On December 14, 2016, after discovering her husband had been unfaithful, Ms. McCalmont filed an Amending and Supplemental Petition for Divorce. In this petition she sought a divorce on the grounds of adultery, pursuant to La.Civ.Code art. 103(2). The Amended Petition alleged only adultery as grounds for the divorce and did not plead in the alternative any other grounds for divorce.

On December 27, 2016, thirteen days after the Amended Petition was filed, Mr. McCalmont filed a Motion to Terminate the Community of Acquets and Gains, retroactive to August 3, 2016, the date of filing of the original petition for divorce. Ms. McCalmont filed a memorandum in opposition to that motion, arguing the correct date of the termination of the community was December 14, 2016, which was the date of filing of the only pending pleading (the Amended Petition) seeking divorce.

On January 23, 2017, Mr. McCalmont filed an answer to the Amended Petition. No exceptions to the content of the Amended Petition were filed and there was no objection to the fact the original grounds pled previously for divorce had been changed from living separate and apart to adultery. The record also established Mr. McCalmont has not filed a reconventional demand or pleading of any type seeking a divorce in this or in any other proceeding.

A hearing on the motion to terminate the community was held on February 6, 2017. There was no dispute that the parties had begun living separate and apart on July 31, 2016, and that the community was properly subject to being terminated. The only issue before the court was the effective date of the termination of the marital community. At the conclusion of the hearing, the trial court ruled the termination date related back to the date of the filing of the Amended Petition, December 14, 2016. A final judgment to the effect was signed. This appeal followed. Mr. McCalmont asserts the trial court erred in finding the effective date of the termination of the community was December 14, 2016. Tragically, on February 22, 2017, Ms. McCalmont died after a lengthy battle with brain cancer before a final judgment of divorce could be obtained. Her son, James A. McCalmont, IV, as the testamentary executor for the Succession of Colleen Hawthorn McCalmont, was the Appellee in this appeal.

ANALYSIS

The record established Ms. McCalmont was the only party to file any pleading seeking a divorce. Initially, she filed a Petition for Divorce on August 3, 2016, seeking a "no fault" divorce under La.Civ.Code art. 102. No answer or responsive pleading was filed in response to the petition.

Following that filing, discovery was sent out and responded to by Mr. McCalmont. Evidence was accumulated that confirmed Ms. McCalmont's suspicions that Mr. McCalmont was having an extra-marital affair. Therefore, on December 14, 2016, Ms. McCalmont filed an Amending and Supplemental Petition for Divorce. In it, Ms. McCalmont was "now seeking a divorce under the provisions of Louisiana Civil Code Art. 103(2), due to the adultery of [Mr. McCalmont]." In the Amended Petition, Ms. McCalmont did not seek in the alternative a divorce under La.Civ.Code art. 102.

Mr. McCalmont filed an answer to the Amended Petition. No exceptions or objections were filed to the Amended Petition. The motion to terminate the community was not filed by Mr. McCalmont until thirteen days after the Amended Petition was filed.

Mr. McCalmont argues the judgment terminating the marital community must relate back to the filing of the original petition for divorce. Appellee disagrees and notes that changes made to the law by the Louisiana Legislature removed the previous requirement to use the date of filing of the "original" petition for divorce in the present circumstances.

Prior to 2010, Louisiana Civil Code article 2375(C) read, in pertinent part, as follows (emphasis added):

C. If a judgment is rendered on the ground that the spouses were living separate and apart after the filing of a petition for divorce without having reconciled, the judgment shall be effective retroactively to the date the original petition for divorce was filed.

As Appellee notes, by Act 603 of the 2010 Louisiana Legislative Session, La.Civ.Code art. 2375(C) was amended in part, and now reads:

C. If a judgment is rendered on the ground that the spouses were living separate and apart without having reconciled for at least thirty days from the date of, or prior to, the filing of the petition for divorce, the judgment shall be effective retroactively to the date the petition for divorce was filed.

The 2010 amendment removed the word "original" from the article, clearly evidencing an intent to remove the requirement that the rendition of a judgment terminating a community property regime must relate back to the date of the filing of the "original" petition for divorce. The trial court's decision relating the termination of the community back to the date the amended petition for divorce was filed does not run afoul of La.Civ.Code art. 2375(C) as amended.

Likewise, Appellee points out changes made to La.Civ.Code art. 159 also evidence a change to remove the requirement of a judgment terminating the community to relate back to the original petition. Prior to 1990, La.Civ.Code art. 159 read (emphasis added):

If a community property regime exists on the date of filing of the original petition in the action in which the judgment of divorce is rendered, the judgment of divorce carries with it the dissolution of the community, which dissolution is retroactive to the date on which the original petition in the action was filed.

By Act 1009 of the 1990 Louisiana Legislative Session, La.Civ.Code art. 159 was amended, in relevant part, to read:

A judgment of divorce terminates a community property regime retroactively to the date of filing of the petition in the action in which the judgment of divorce is rendered.

As in La.Civ.Code art. 2375(C), reference to the "original" petition was deleted and was replaced instead with language providing the termination of the community relates back to the "filing of the petition in the action in which the judgment of divorce is rendered." Mr. McCalmont argues La.Civ.Code art. 159 applies in situations when the judgment of divorce has been rendered, which did not occur in this case due to Ms. McCalmont's death. At the time of Ms. McCalmont's death, the only petition for divorce pending was the Amended Petition filed on December 14, 2016. The amendment served, in effect, to dismiss or cancel the original filing, and to start the matter anew, raising a different ground for divorce. The later filing became the "original" filing absent any expression that the ground therein was intended to be pled in the alternative to that previously urged. Therefore, under La.Civ.Code art. 2375(C), the trial court did not err in finding the termination of the community relates back to "the date the petition of divorce was filed," which in this case was the Amended Petition.

Mr. McCalmont argues La.Code Civ.P. art. 1153 applies and requires that the filing of the Amended Petition relates back to the filing of the original petition. We disagree and find La.Code Civ.P. art. 1153 does not apply unless a subsequently filed amended petition asserts an action arising out of the "conduct, transaction or occurrence" set forth in the original petition. As set forth above, the Amended Petition set forth a completely different ground for divorce (adultery) as was set forth in the original petition. Thus, La.Code Civ.P. art. 1153 is inapplicable in this case.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to appellant, James Addison McCalmont, III.

AFFIRMED.