author: JUDGE SANDRA CABRINA JENKINS

text:
    STATE of Louisiana v. Kareem RICHARDS
    NO. 2018-K-0029
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 21, 2018
    Sean Collins, Orleans Public Defenders, 2601 Tulane Avenue, Seventh Floor, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/RELATOR
    Leon Cannizzaro, District Attorney, Donna Andrieu, Assistant District Attorney, Kevin Guillory, Assistant District Attorney, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/RESPONDENT
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Dennis R. Bagneris, Pro Tempore)
   JUDGE SANDRA CABRINA JENKINS

Relator/defendant seeks review of the trial court's December 20, 2017 ruling that overruled the defense's written objection to the State's discovery redaction. For the following reasons, we grant defendant's writ and remand this matter to the trial court to conduct an ex parte proceeding with the State in accordance with the mandatory provisions of La. C.Cr.P. art. 729.7.

PROCEDURAL BACKGROUND

On February 17, 2017, defendant was indicted for one count of second degree murder and one count of obstruction of justice. After entering a plea of not guilty, defendant filed several motions, including a motion for discovery. On April 7, 2017, the State tendered initial discovery, including police reports from the investigation leading to defendant's arrest and indictment. However, the State redacted identifying information as to two witnesses in the police reports. In response, on July 24, 2017, defendant filed a motion for supplemental discovery and, in accordance with La. C.Cr.P. art. 729.7, a written motion objecting to the State's redaction of information identifying the witnesses.

On December 20, 2017, the trial court held a hearing on defendant's motion objecting to the State's discovery redaction. At the hearing, the State agreed to provide defendant with information and a recorded statement as to one of the redacted witnesses. However, the State argued that the identity of the second witness was protected, pursuant to La. R.S. 46:1844(W) and La. Ch. C. arts. 322 and 323, because the witness is a juvenile. Defense counsel argued that the statutes cited by the State were inapplicable; and, in accordance with the mandatory, governing provisions of La. C.Cr.P. art. 729.7, the trial court should hold an ex parte , in camera hearing with the State where it must make a prima facie showing that the witness's safety may be compromised. Following arguments, the trial court stated, "I'll just rule that the person is protected."

DISCUSSION

In this writ, defendant argues that the trial court abused its discretion in determining the redacted witness was "protected" without conducting an ex parte hearing pursuant to La. C.Cr.P. art. 729.7. For the following reasons, we find the trial court's ruling was legal error.

First, we note that La. C.Cr.P. art. 718 authorizes and requires the production of law enforcement reports, as follows:

Subject to the limitation of Article 723 of this Code, and except as otherwise prohibited by law, upon written motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce law enforcement reports created and known to the prosecutor made in connection with the particular case, and to permit or authorize the defendant or an expert working with the defendant, to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof that are within the possession, custody, or control of the state, and that are intended for use by the state as evidence in its case in chief at trial, or were obtained from or belong to the defendant.

Recognizing that, under certain circumstances, the disclosure of information identifying witnesses may compromise witness safety, La. C.Cr.P. art. 729.7 provides a procedure for the protection of witness identity as follows:

A. Notwithstanding any other provision of law to the contrary, the district attorney or the defendant may delete or excise from any information required to be disclosed herein any information which identifies a witness if such party believes the witness's safety may be compromised by the disclosure. If a party objects to the deletion or excision, he must do so by written motion. The court shall maintain the deletion or excision if, at an ex parte proceeding which shall be recorded and maintained under seal, the party
excising or deleting such information makes a prima facie showing that the witness's safety may be compromised by the disclosure. (emphasis added)
B. If the information excised by a party includes the substance, or any part thereof, of any written or recorded statement of the witness, that party must provide the excised substance, or any part thereof, to the other party immediately prior to the witness's testimony at the trial.
C. If a judge finds that the party excising or deleting such information has failed to present prima facie proof to support the deletion or excision of information related to a witness, then upon the motion of either party, the court shall order an automatic stay of all matters related to the disclosure of information about the witness and maintain all proceedings under seal during the time while the moving party seeks supervisory review to the appropriate reviewing courts with appellate jurisdiction, including the Louisiana Supreme Court.
D. The rules of evidence shall not be applicable to the ex parte proceedings conducted pursuant to this Article.

In State v. Le , 15-0014 (La. App. 4 Cir. 4/2/15), 165 So.3d 242, this Court considered the applicability of La. C.Cr.P. art. 729.7, in an analogous situation to the instant case. In Le , the defense filed a written objection to the State's redaction of witness information in the police reports; but the trial court overruled the objection and found that the State's discovery response was "good and sufficient." 15-0014,p. 2, 165 So.3d at 243. In seeking review of the trial court's ruling, the defense argued that it had complied with the provisions of La. C.Cr.P. art. 729.7, and, accordingly, the trial court erred by declining to hold an ex parte proceeding at which the State was required to make a prima facie showing that the disclosure would compromise witness safety. Finding that the provisions of La. C.Cr.P. art. 729.7 -made law by 2013 La. Acts, No. 250, § 1, effective January 1, 2014-had modified the trial court procedure for disclosure of witness identity known to the State in written form, this Court held that the mandatory provisions of La. C.Cr.P. art. 729.7 apply as follows:

A defendant must now file a written motion for the disclosure of the document in unredacted form. If the court believes that only a redacted document should be disclosed, the court shall (is required to) hold an ex parte proceeding in chambers with a court reporter and the state's counsel present where the state shall (is required to) disclose its reasons on the record why the deleted and excised portions of the document should not be disclosed. The recording of the proceedings and the unredacted document shall thereafter be retained under seal. If the court agrees with either the state or the defendant, the court's ruling shall be reviewable by supervisory writ application to an appellate court where the reasons given by the state at the ex parte in chambers proceeding and the document may be reviewed for error or abuse of discretion of the trial court. In sum, once the defendant makes his discovery request, the state is first required to produce the police report as redacted; thereafter, the defendant must file his written objection(s) to the redacted material and request therein the redacted portions.

Le , 15-0014, pp. 6-7, 165 So.3d at 246. Further, this Court found that the trial court's ruling, while not a refusal to hold an ex parte proceeding, still deprived defendant of his statutory right to the ex parte proceeding; "[s]uch was legal error." Id. , 15-0014,p. 8, 165 So.3d at 246. Consequently, this Court granted defendant's writ, reversed the trial court ruling, and remanded the matter to the trial court to hold the required ex parte proceeding, to be maintained under seal, at which the state shall be required to make a prima facie showing why the redacted information should not be disclosed.

In the instant case, the State argues that it is precluded from disclosing unredacted information regarding the juvenile witness, pursuant to La. R.S. 46: 1844(W) and La. Ch. C. arts. 322 and 323. However, the provisions of those statutes are inapplicable in this matter regarding the disclosure of identifying information of witnesses in police reports.

La. R.S. 46:1844(W) provides in pertinent part as follows:

W. Confidentiality of crime victims who are minors, victims of sex offenses, and victims of human trafficking-related offenses.
(1)(a) In order to protect the identity and provide for the safety and welfare of crime victims who are minors under the age of eighteen years and of victims of sex offenses or human trafficking-related offenses, notwithstanding any provision of law to the contrary, all public officials and officers and public agencies, including but not limited to all law enforcement agencies, sheriffs, district attorneys, judicial officers, clerks of court, the Crime Victims Reparations Board, and the Department of Children and Family Services or any division thereof, shall not publicly disclose the name, address, or identity of crime victims who at the time of the commission of the offense are minors under eighteen years of age or of victims of sex offenses or human trafficking-related offenses, regardless of the date of commission of the offense. The confidentiality of the identity of the victim who at the time of the commission of the offense is a minor under eighteen years of age or the victim of a sex offense or human trafficking-related offense may be waived by the victim. The public disclosure of the name of the juvenile crime victim by any public official or officer or public agency is not prohibited by this Subsection when the crime resulted in the death of the victim.

By the clear wording of La. R.S. 46: 1844(W), the statute provides for the "[c]onfidentiality of crime victims who are minors, victims of sex offenses, and victims of human trafficking-related offenses;" the statute does not provide for the confidentiality of witnesses who are minors.

Likewise, we find the provisions of La. Ch.C. arts. 322 and 323 inapplicable to the instant matter. Those statutes pertain to a procedure by which the trial court in a juvenile proceeding may permit a special exception to the hearsay rule by allowing receipt of videotaped statements or closed-circuit television testimony of protected persons who are witnesses to or victims of a crime. La. Ch. C. art. 322. Also, La. Ch. C. art. 323 specifically defines a "protected person" as "any person who is a victim of a crime or a witness in a juvenile proceeding and who either: (a) is under the age of seventeen years; [or] (b) has a developmental disability as defined in R.S. 28:51.2(12)." (emphasis added). Neither of the Children's Code statutes cited by the State authorizes withholding otherwise discoverable, identifying information about witnesses to a crime.

Rather, La. C.Cr.P. art. 729.7 governs in this matter and its provisions are mandatory. The State redacted information from a discoverable document based on its concern for the witness's safety; in response, the defendant followed the appropriate procedure by objecting to the redaction in a written motion. If the trial court believed that the redaction should be maintained, then it was required to hold an ex parte proceeding, recorded and maintained under seal, at which the State must make a prima facie showing why the redacted information should not be disclosed to defendant. Thus, in this matter, the trial court erred in maintaining the redaction without holding the required ex parte proceeding.

DECREE

For the foregoing reasons, defendant's writ is granted and the trial court's December 20, 2017 ruling is reversed. We remand this matter to the trial court to hold an ex parte proceeding in accordance with the governing provisions of La. C.Cr.P. art. 729.7.

WRIT GRANTED; REVERSED AND REMANDED

      The discovery articles of the Code of Criminal Procedure relevant to this matter were amended by 2013 La. Acts, No. 250, and effective in this case.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    SUCCESSION OF Elmoses IVEY
    17-653
    Court of Appeal of Louisiana, Third Circuit.
    February 21, 2018
    Terry Aubin, Aubin Law Firm, A Professional Corporation, 3600 Jackson Street, Suite 107, Alexandria, LA 71303, (318) 561-7000, COUNSEL FOR DEFENDANT-APPELLANT: Lois Ivey
    J. Graves Theus, Christopher Kinnison, Theus Law Offices, Post Office Box 8432, Alexandria, LA 71301, (318) 541-8999, COUNSEL FOR PLAINTIFF-APPELLEE: Mary Ivey Waters, William Ivey
    Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.
   PICKETT, Judge.

Testator's widow appeals the trial court's grant of summary judgment declaring her husband's last will and testament invalid because it does not satisfy the legal requirements for a notarial testament. For the following reasons, we affirm.

FACTS

In 1996, Elmoses Ivey executed his last will and testament in which he bequeathed all of his property to his wife, Lois Ivey. He died in February 2016, and Lois probated the will and obtained a judgment of possession. Shortly thereafter, Mary Ivey Waters and William Ivey, Mr. Ivey's children from a prior marriage, filed suit, contesting the validity of Mr. Ivey's will. Mary and William then filed a motion for summary judgment, seeking a judgment declaring the will null.

In their motion for summary judgment, Mary and William assert that the attestation clause in Mr. Ivey's will fails to satisfy the legal requirements of a notarial testament; therefore, it is invalid. After conducting a hearing, the trial court granted the motion for summary judgment and signed a judgment that declared Mr. Ivey's will invalid, annulled the judgment of possession, and designated the summary judgment a final judgment as provided in La.Code Civ.P. art.1915(B). Lois appealed.

DISCUSSION

In their motion for summary judgment, Mary and William identify the following formalities required by La.Civ.Code art. 1577 that they claim Mr. Ivey's will does not include which renders the will null:

(1) The notarial attestation clause fails to state that the testator signed the will at the end and on each other separate page in the presence of the notary and witnesses;
(2) The notarial attestation clause fails to state that the testator declared or signified in the presence of the notary and witnesses that the instrument was his last will and testament;
(3) The notarial attestation clause does not clearly state that the notary, witnesses[,] and testator executed the testament in the presence of each other; and
(4) The declaration in the notarial attestation clause is made by the testator , not the notary or the witnesses, which essentially amounts to no attestation clause at all.

Lois appeals the trial court's judgment and assigns a number of errors with the trial court's conclusion that Mr. Ivey's will is null. These assigned errors present the primary legal issue of whether the trial court properly granted summary judgment in favor of Mary and William. To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that he "is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3) ; Duncan v. U.S.A.A. Ins. Co. , 06-363, p. 4 (La. 11/29/06), 950 So.2d 544, 547. "A fact is 'material' when its existence or nonexistence may be essential to [the] plaintiff's cause of action." Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Smitko v. Gulf S. Shrimp, Inc. , 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755. Summary judgment is favored by law and provides a vehicle by which the just, speedy, and inexpensive determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2).

Currently, there are two forms of testaments in Louisiana: olographic and notarial. La.Civ.Code art. 1574. An olographic testament is executed by the testator in his own hand. La.Civ.Code art. 1575. The notarial testament must be executed in accordance with the formalities of La.Civ.Code arts. 1577 - 1580.1, which include notarization. La.Civ.Code art. 1576. The plaintiff in an action to annul a notarial testament has the burden of proof. La.Code Civ.P. art. 2932(B).

Mr. Ivey executed his will in 1996 when more testamentary options were available. His will was drafted to conform with the requirements provided in former La.R.S. 9:2442. In 1997, our legislature revised the laws governing testaments, and La.R.S. 9:2442 was repealed and replaced by La.Civ.Code art. 1577. Comment (a) to La.Civ.Code art. 1577 states, "This article reproduces the substance of R.S. 9:2442. It does not change the law."

Louisiana Civil Code Article 1577 requires that a notarial testament be "prepared in writing and dated" and that it "be executed in the following manner[,] [i]f the testator knows how to sign his name and to read and is physically able to do both:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this __ day of ____, __."

The trial court agreed with Mary and William and found Mr. Ivey's will to be "fatally flawed" in the four respects identified in their motion for summary judgment and concluded that the will is an absolute nullity.

In Successions of Toney , 16-1534 (La. 5/3/17), 226 So.3d 397, our supreme court affirmed the lower courts' findings that the attestation clause at issue therein rendered the will absolutely null. Addressing the parties' arguments, the supreme court conducted a thorough review of the legal requirements of a notarial testament and the jurisprudence deciding claims of nullity for failure to comply with requirements previously set forth by La.R.S. 9:2442, now set forth by the La.Civ.Code art. 1577. At the outset of its discussion, the supreme court restated these long-held tenets of law applicable to wills:

There is a presumption in favor of the validity of testaments in general, and proof of the nonobservance of formalities must be exceptionally compelling to rebut that presumption. However, the Civil Code also provides in no uncertain terms that "[t]he formalities prescribed for the execution of a testament must be observed or the testament is absolutely null ." La. Civ.Code art. 1573 (emphasis added). Nevertheless, the codal article which provides the form requirements for the notarial testament does contain an allowance that the mandated attestation clause need only be "substantially similar" to the sample declaration provided in statute[.]

Id. at 401 (citation omitted).

Continuing, the supreme court quoted with acceptance the first circuit's designation of "the three required elements of a valid attestation clause under

La.R.S. 9:2442(B)(2), [now] La.Civ.Code art. 1577 [,]" as set forth in Succession of Brown , 458 So.2d 140, 143 (La.App. 1 Cir. 1984) :

The attestation clause set forth in the statute ... requires the notary and witnesses to declare (1) the testator signed the will at its end and on each separate page, (2) the testator declared in the presence of the notary and witnesses that it (the instrument) was his will, and (3) in the presences of the testator and each other, they (the notary and witnesses) signed their names on a specified date.

Toney , 226 So.3d at 405.

The attestation clause in Mr. Ivey's will reads:

SIGNED AND DECLARED by me, ELMOSES IVEY, Testator, above named in our presence of the Testator and each other, we have hereunto signed our names this 25th day of November, 1996.
/s/ Elmoses Ivey ELMOSES IVEY TESTATOR
WITNESSES:
/s/ Linda D. Westbrook /s/ Linda J. Bohannan /s/ Shelby E. Bohannon SHELBY E. BOHANNON NOTARY PUBLIC

Comparison of Mr. Ivey's attestation clause to the requirements set forth in Succession of Brown , 458 So.2d 140, clearly shows that it lacks two of those requirements: (1) the declaration by the witnesses and notary that Mr. Ivey signed the will at its end and on each separate page and (2) the declaration by the witnesses and notary that Mr. Ivey declared to them that the document is his will. As a result, the will is invalid.

Mary and William also assert that the attestation clause lacks the requirement that the witnesses and notary declare in the presences of the testator and each other that they signed their names on a specified date because Mr. Ivey, not the witnesses and notary, make the declarations contained therein. Lois contends, however, that the inclusion of "me" in the clause is a typographical error and should be read out of the attestation clause.

In Succession of Bilyeu , 28,701 (La.App. 2 Cir. 9/25/96), 681 So.2d 56, writ denied , 96-2868 (La. 1/24/97), 686 So.2d 862, the court held that an incorrect reference to the testator, who was a man, as "she" and "her" in the attestation clause was a typographical error that did not nullify the will. After noting that "the primary purpose of the attestation clause is merely to certify that, at the time of execution of the testament, the statutory formalities have been satisfied," the court reiterated that when "the formalities have been satisfied, technical deviations in the attestation clause should not defeat the dispositive portions of an otherwise valid will." Bilyeu , 681 So.2d at 58-59.

In Bilyeu , the alleged typographical errors were merely an inaccurate use of pronouns referencing the testator's sex; they did not change the meaning of the sentence(s) in which they appeared and were not needed to satisfy the required formalities of the will. That is not the case here. As written, the phrase "SIGNED AND DECLARED by me, ELMOSES IVEY, Testator" indicates that Mr. Ivey is the declarant. Without "me," the sentence indicates that the witnesses and notary are the declarants. Thus, treating "me" as a typographical error and ignoring it completely changes the meaning of the sentence which is required to satisfy one of the formalities of an attestation clause. As a result, treating "me" as a typographical error is more than a technical deviation. Accordingly, Lois's argument lacks merit.

Even if we were to assume for purposes of argument that "me" is a typographical error and delete it for purposes of our review, the clause lacks the first two mandatory requirements of an attestation clause. Accordingly, the will is still null.

Lois urges that there is no need for rigid application of the attestation clause requirements because there is no evidence of fraud herein. The supreme court rejected this argument in Toney , 226 So.3d at 407, holding that the failure of an attestation clause to substantially comply with the requirements of La.Civ.Code art. 1577 renders it absolutely null, "even in the absence of fraud." The supreme court further stated, "Any language in previous jurisprudence which suggested otherwise is rejected[,]" making it clear that earlier jurisprudence which treated deviations from the testamentary form requirements leniently when fraud was not an issue no longer applies. Toney , 226 So.3d at 407.

The supreme court also rejected Lois's argument that the trial court erred in refusing to allow her to present the testimony of the witnesses and notary as to what occurred when Mr. Ivey executed his will, explaining:

[A]s shown above, the testament itself failed to include the mandatory elements specified in La.Civ.Code art. 1577. While extrinsic evidence may be used to resolve ambiguity in a testament, extrinsic evidence cannot cure a testament which is materially defective on its face . The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La.Civ.Code art. 1573. As the testament propounded in this case materially deviated from the requirements of La.Civ.Code art. 1577 as described in detail above, we find the lower courts correctly held that it is absolutely null.

Id. at 408 (footnote omitted) (italics emphasis added).

Mr. Ivey's will does not substantially comply with the requirements of a notarial will as set for the La.Civ.Code art. 1577 and former La.R.S. 9:2442 ; therefore, it is invalid and null. We need not address each of Lois's assignments of error individually because the attestation clause of Mr. Ivey's will does not satisfy all the legal requirements set forth in La.Civ.Code art. 1577. Lois has failed to show that any material issue of genuine fact exists which precludes summary judgment and that Mary and William are not entitled to judgment as a matter of law. Accordingly, we affirm the grant of summary judgment.

DISPOSITION

The trial court's judgment declaring Elmoses Ivey's last will and testament invalid and annulling the previous judgment of possession is affirmed. All costs are assessed to Lois Ivey.

AFFIRMED.

      Louisiana Civil Code Article 2442 provided, in part:
      (B) The statutory will shall be prepared in writing and shall be dated and executed in the following manner:
      (1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his last will and shall sign his name at the end of the will and on each other separate page of the instrument.
      (2) In the presence of the testator and each other, the notary and the witnesses shall then sign the following declaration, or one substantially similar: "The testator has signed this will at the end and on each other separate page, and has declared or signified in our presence that it is his last will and testament, and in the presence of the testator and each other we have hereunto subscribed our names this ______ day of ____________, 19__."


author: COOKS, Judge.

text:
    STATE of Louisiana v. Kenneth ROMERO
    17-636
    Court of Appeal of Louisiana, Third Circuit.
    February 21, 2018
    Trent Brignac, District Attorney, Nicole F. Gil, Assistant District Attorney, P. O. Drawer 780, Ville Platte, LA 70586, (337) 363-3438, COUNSEL FOR APPELLEE: State of Louisiana
    Thomas E. Guilbeau, Jason W. Robideaux, P. O. Box 3331, Lafayette, LA 70502, (337) 232-7240, COUNSEL FOR APPELLANT: Kenneth Romero
    Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On October 19, 2013, Defendant, Kenneth Romero, while driving his Dodge pick-up truck, struck the victim, Jonathon Ben. As a result of the injuries suffered from the collision, Mr. Ben died. Defendant did not stop and render any assistance to Mr. Ben, nor did he call the police or any emergency assistance. Instead he fled the scene.

On February 5, 2014, Defendant was charged by bill of information with one count of vehicular homicide, in violation of La.R.S. 14:32.1, and one count of hit-and-run driving resulting in death, in violation of La.R.S. 14:100(C)(2). In anticipation of a plea agreement on March 3, 2017, the State amended the first count of the bill to negligent homicide, in violation of La.R.S. 14:32. At that time, Defendant pled guilty to negligent homicide and entered a plea in accordance with North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) on the hit-and-run driving charge. Pursuant to Alford , trial counsel acknowledged for the record that he believed there was "sufficient and substantial evidence" of Defendant's guilt with respect to the hit-and-run driving charge without admitting guilt.

On May 10, 2017, the trial court sentenced Defendant to serve three and one-half years at hard labor and a twenty-five hundred dollar fine for negligent homicide and eight years at hard labor for the hit-and-run driving, with a twenty-five hundred dollar fine and three years of his sentence suspended with five years of supervised probation. The sentences were to run concurrently.

Defendant now appeals, raising a single assignment of error, namely, that the trial court erred in accepting Defendant's Alford plea when Defendant denied knowing his vehicle had struck the victim "without requiring the State to establish a substantial basis of guilt in the record." For the reasons discussed below, we find no merit to Defendant's assignment of error and affirm his convictions and sentences.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. The court minutes of sentencing require correction. For the offense of negligent homicide, the sentencing minutes reflect that the court imposed a sentence of three and one-half years at hard labor and that upon release, Defendant is to be placed on five years of supervised probation.

The sentencing transcript indicates that on the negligent homicide charge, a hard labor sentence of three and one-half years was imposed with no portion of the sentence being suspended and Defendant not being placed on probation. "[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack , 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied , 00-2051 (La. 9/21/01), 797 So.2d 62.

Accordingly, the trial court is ordered to correct the sentencing minutes to accurately reflect Defendant's sentence for negligent homicide.

ASSIGNMENT OF ERROR

Defendant's only assignment of error relates to his conviction for hit-and-run driving, a violation of La.R.S. 14:100, which states: "Hit and run driving is the intentional failure of the driver of a vehicle involved in or causing any accident, to stop such vehicle at the scene of the accident, to give his identity, and to render reasonable aid." Additionally, La.R.S. 14:100(C)(2) provides for a greater penalty "when death or serious bodily injury is a direct result of the accident and when the driver knew or should have known that death or serious bodily injury has occurred."

In his sole assignment of error, Defendant argues the trial court erred by accepting his Alford plea to hit-and-run driving because the trial court should have known there was a serious question regarding whether or not Defendant "knew or should have known that death or serious bodily injury has occurred."

Defendant's argument, despite his semantic use of the term "specific knowledge" throughout, is that the trial court should have required a more in-depth factual basis because there was a question regarding Defendant's intent. Namely, he argues that he had no idea he hit the victim until he noticed a dent in his vehicle the following morning, which indicates he did not have the necessary "specific knowledge." His entire argument is based on the false belief that hit-and-run driving requires specific intent, which it does not. The supreme court noted in State v. Williams , 03-3514, p. 13 (La. 12/13/04), 893 So.2d 7, 16, that hit-and-run driving is a general intent crime where "the criminal intent necessary to sustain a conviction for hit-and-run driving is established by the very doing of the act, i.e. hit-and-run driving."

Voluntary intoxication does not negate general intent. See La.R.S. 14:15. Therefore, the fact that Defendant claims he was too intoxicated to remember hitting anyone has no bearing on whether or not he had the intent to commit hit-and-run driving. Additionally, while Defendant now claims the trial court and the State both should have known that a more substantial basis of guilt must be placed into the record, the trial court specifically asked Defendant and both of his attorneys if they were satisfied with the factual basis recited by the State. All three stated that they were satisfied with the factual basis. Thus, in light of the above, there is no issue with the factual basis given at the time of Defendant's plea.

"[T]he standard under Alford is whether the strength of the factual basis, coupled with the other circumstances of the plea, reflects that the plea was a voluntary and intelligent choice among the alternatives available to Defendant." State v. Fregia , 12-646, pp. 6-7 (La.App. 3 Cir. 12/5/12), 105 So.3d 999, 1004. Prior to the reading of the factual basis, Defendant and his attorneys acknowledged there was sufficient evidence to convict him of hit-and-run driving. They likewise failed to object to the factual basis after it was read. Finally, the basis specifically noted that Defendant hit the victim, Mr. Jonathon Ben, with his truck, failed to stop or render aid in any way, and Mr. Ben died as a result. Therefore, we find no merit to Defendant's assignment of error.

DECREE

For the foregoing reasons, Defendant's convictions and sentences are affirmed; however, the trial court is ordered to correct the sentencing minutes to accurately reflect Defendant's sentence for negligent homicide.

AFFIRMED WITH INSTRUCTIONS.


author: SAVOIE, Judge.

text:
    Danielle GANAWAY v. Kyle GANAWAY
    17-875
    Court of Appeal of Louisiana, Third Circuit.
    February 28, 2018
    Elizabeth B. Carr, Bolen, Parker, Brenner, Lee & Engelsman, Ltd., 709 Versailles Blvd, P.O. Box 11590, Alexandria, LA 71315-1590, (318) 445-8236, COUNSEL FOR PLAINTIFF/APPELLANT: Danielle Ganaway (now Semento-Brooks)
    Misty Dawn Smith, Attorney at Law, 301 South Third Street, Leesville, LA 71446, (337) 238-2800, COUNSEL FOR DEFENDANT/APPELLEE: Kyle Ganaway
    Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

In this custody matter, Danielle Ganaway (now Semento-Brooks) appeals the trial court's ruling that (1) modified a co-domiciliary custody order to name Kyle Ganaway as the primary domiciliary parent of the parties' children, and (2) denied her motion seeking authorization to relocate her children to the Dallas-Fort Worth area. For the reasons that follow, we reverse the trial court's modification of custody and affirm the denial of Danielle's motion for relocation.

FACTUAL AND PROCEDURAL BACKGROUND

Danielle Ganaway and Kyle Ganaway were married in 2005. They are the parents of two children who were born in 2005 and 2008, respectively. The parties separated in July 2010, and on August 13, 2010, Danielle filed a petition for divorce. The parties reside in Vernon Parish.

On September 23, 2010, the parties entered into a stipulation wherein they agreed that they would be the co-domiciliary parents of the children, with Kyle to have reasonable visitation every Friday through Sunday pursuant to a "Joint Implementation Custody Plan." A judgment was signed on November 22, 2010, in accordance with the parties' agreement.

On January 27, 2011, the parties entered into an "interim joint stipulation" agreeing that the children would live with Danielle's parents in Texas for the next six months. According to Danielle, the children returned to Vernon Parish in July 2011 and moved in with her as she had secured public housing.

A judgment of divorce was rendered November 26, 2012. The judgment also stated that Danielle was allowed to remove the minor children from Louisiana for the purpose of relocation to Keller, Texas, and that Kyle would have visitation any weekend provided that he gave Danielle three days' notice. However, according to Danielle, she decided not to move to Keller, Texas at that time, but rather wanted to wait until the end of the school year; by that time, however, Kyle did not consent to the children moving.

On January 6, 2015, Danielle filed a Rule for Contempt alleging that Kyle had failed to return the children following a scheduled holiday visitation. She also sought a modification of custody. That same day, Kyle filed a motion seeking temporary ex-parte custody alleging that he had been notified by the sheriff's department that Danielle was required to be hospitalized due to a suicide attempt. The trial judge denied the interim relief sought by Kyle, but set the matter for hearing.

The matter was heard on February 5, 2015, at which time the parties stipulated to a joint, co-domiciliary, custody arrangement. The trial court signed a judgment on February 26, 2015, in accordance therewith. Danielle was awarded with physical custody of the children, with the exception of the second, third, and fourth weekends of the month, and Wednesday nights, when Kyle would have physical custody. A holiday visitation schedule was also established.

On December 5, 2015, Danielle filed a petition which sought to modify custody as well as a ruling of contempt and suspension of visitation. She alleged that Kyle had physically abused the children during a visitation. On December 14, 2015, the trial judge denied the interim emergency relief requested by Danielle, but signed an "interim order," stating that the visitation schedule for Kyle shall remain in effect until the matter was heard and that his visitation was to be supervised. The matter was heard January 21, 2016, at which time the parties entered into a stipulation. Judgment was rendered that day, but not signed until November 28, 2016. The judgment ordered that:

the interim order of custody with supervised visitation in favor of Kyle Ganaway be continued until he completes both a parenting class and an anger management class and provides proof of completion of
the same to opposing counsel. Once Kyle Ganaway completes the aforementioned classes and provides proof of completion to opposing counsel, his visitation shall resume unsupervised, in accordance with the judgment signed February 26, 2015[.]

The judgment further required Kyle to become current on his child support obligation within fifteen days.

On May 26, 2016, Danielle filed a motion seeking to relocate the children's residence from Leesville, Louisiana to the "Dallas-Fort Worth Area." She alleged that she had remarried, that her current husband was in the Army Reserves and was stationed there, that the children's maternal grandparents resided there, that she wanted to complete her degree at the University of North Texas for increased job opportunities, and that there were improved educational options for her children. Danielle's motion was set for hearing July 11, 2016, and thereafter was continued several times. Meanwhile, on September 13, 2016, Judge Anthony Eaves recused himself from these proceedings, which were then reassigned to Judge Scott Westerchill.

Danielle's motion to relocate the children was heard before Judge Westerchill on November 28, 2016, and January 10, 2017. The trial court signed a judgment on February 21, 2017, that denied Danielle's motion to relocate. The judgment also modified the February 26, 2015 judgment to name Kyle as the primary domiciliary parent while maintaining the same physical custody schedule between the parties.

Danielle appeals and asserts the following as assignments of error:

1. The Trial Court erred when it changed domiciliary status when the issue was not plead by either party and neither requested or was granted permission to amend the pleadings or request a change in domiciliary status.
2. The Trial Court erred when it denied plaintiff's Motion for Authorization to relocate the residence of the children when that decision was based upon its ruling regarding domiciliary status, an
issue which was not properly before the Court and the Court ignored several relevant pieces of evidence favoring relocation.

ANALYSIS

Modification of Custody

In Evans v. Lungrin , 97-541, 97-577, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735, the Louisiana Supreme Court stated:

It is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO , 549 So.2d 840, 844 (La.1989). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Ferrell v. Fireman's Fund Ins. Co. , 94-1252 (La. 2/20/95), 650 So.2d 742, 747, rev'd in part, on other grounds, 96-3028 (La. 7/1/97), 696 So.2d 569, reh'g denied , 96-3028 (La. 9/19/97), 698 So.2d 1388. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. See Lasha v. Olin Corp. , 625 So.2d 1002, 1006 (La.1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. See Lasha , 625 So.2d at 1006. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo . Lasha , 625 So.2d at 1006.

On appeal, Danielle argues that the trial court's custody modification awarding Kyle with domiciliary status was an error of law since neither party sought a modification of custody and the issue was not otherwise properly before the trial court for consideration. We agree.

We addressed a similar issue in Galland v. Galland, 12-1075 (La.App. 3 Cir. 3/20/13), 117 So.3d 105. In Galland , following a hearing regarding where the parties' children were to attend school, the trial court rendered a judgment modifying the parties' co-domiciliary custody arrangement and named the father as the primary domiciliary parent. In reversing that portion of the judgment, we stated the following:

In Domingue v. Bodin , 08-62, p. 3 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 (alterations in original), we evaluated a similar issue and explained the powers of the trial court:
Pursuant to La.Code Civ.P. art. 191"[a] court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law." From that grant of power, trial courts are vested with authority, under La.Code Civ.P. art. 862 to grant relief to the party in whose favor the final judgment rendered was entitled, even if the party has not demanded such a relief in his pleadings and the latter contain no prayer for general and equitable relief. Accordingly, "under proper circumstances proof beyond the pleadings, even if objected to, may be admitted and considered when permission to amend the pleadings is requested and granted ." La.C.C.P. Art. 1154. (emphasis supplied). Ussery v. Ussery , 583 So.2d 838, 841 (La.App. 2 Cir.1991) (citing Guillory v. Buller , 398 So.2d 43 (La.App. 3 Cir.1981) ). However, notwithstanding this authority, "nothing in the article [ art. 862 ] is intended to confer jurisdiction on a court to decide a controversy which the parties have not regularly brought before it." Id. Otherwise, "[a] judgment beyond the pleadings is a nullity." Id. at 841, citing Romero v. State Farm Fire & Casualty Co. , 479 So.2d 694 (La.App. 3 Cir.1985).
Here, neither party requested nor was granted permission to amend the pleadings to request a change in domiciliary status. Indeed, the parties stipulated at the beginning of trial that the only issues before the court were the contempt issues and the issue of school choice.... Thus, the trial court went beyond the scope of the pleadings to unilaterally expand them to award [the father] primary domiciliary custody of the children, which is clearly "a controversy which the parties have not regularly brought before it." Ussery , 583 So.2d at 841.

Similarly, in the instant matter, the only issue pending before the court was Danielle's motion seeking the relocation of the children to the Dallas-Ft. Worth area. Neither party had pled or otherwise sought to modify the co-domiciliary custody arrangement provided in the February 26, 2015 stipulated judgment.

Kyle argues that Galland , 117 So.3d 105, is not applicable because in Galland , the court did not hear evidence concerning the best interest of the child, whereas in the instant case, the trial court allowed evidence concerning the best interest of the children in connection with the relocation motion. Therefore, according to Kyle, the pleadings were expanded to allow for the trial court's sua sponte consideration and modification of custody. Kyle also notes that Galland pre-dated the supreme court's holding in Hodges v. Hodges , 15-585, p. 9 (La. 11/23/15), 181 So.3d 700, 706, indicating that "the court can only designate a single domiciliary parent."

We disagree with Kyle's suggestion that evidence concerning whether the proposed relocation was in the best interest of the children expanded the pleadings and placed modification of custody in front of the trial court. The analysis applicable to a relocation motion is not the same as the analysis applicable to a motion to modify custody. At issue in a relocation matter is whether the proposed relocation is made in good faith and is in the best interest of the child, taking into consideration the factors set forth in La.R.S. 9:355.14. Gathen v. Gathen , 10-2312 (La. 5/10/11), 66 So.3d 1. However, at issue in connection with a motion to modify a stipulated custody judgment, are (1) whether there has been a material change in circumstances since the custody decree was entered, and (2) whether the proposed modification is in the best interest of the child." Cormier v. Cormier , 12-1340, p. 5 (La.App. 3 Cir. 4/24/13), 112 So.3d 1073, 1076 (emphasis added).

In the instant matter, regardless of whether the February 26, 2015 co-domiciliary judgment is contrary to Hodges, 181 So.3d 700, neither party sought to modify the stipulated judgment, and the issue of modification of custody was not otherwise before the trial court with adequate notice to the parties.

Kyle also argues that modification of custody does not have to be pleaded, citing to Mason v. Mason , 16-287 (La.App. 3 Cir. 10/5/16), 203 So.3d 519, and to Miller v. Miller , 04-1355 (La.App. 3 Cir. 2005), 893 So.2d 233. However, these cases do not address a trial court's sua sponte change in domiciliary status when the issue of custody was not before the court. At issue in

Mason, 203 So.3d 519 at 529, citing Brantley v. Kaler, 43,418 (La.App. 2 Cir. 6/4/08), 986 So.2d 188, was the trial court's sua sponte modification of the logistics of a visitation schedule; and at issue in Miller, 893 So.2d 233, was an original award of custody to grandparents who had not sought custody.

Therefore, we find that the trial court erred in modifying the February 26, 2015 stipulated custody judgment, and we reverse that portion of the trial court's judgment that awarded primary domiciliary status to Kyle.

Danielle's Relocation Motion

Louisiana Revised Statutes 9:355.10 states that "[t]he person proposing relocation has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child." "[B]y placing this two-part burden on the relocating parent and placing no burden on the nonrelocating parent, the legislature chose to assign a very heavy burden to the relocating parent to prove that relocation is in the best interest of the child." Gathen, 66 So.3d at 8. Louisiana Revised Statutes 9:355.14 sets forth the following with respect to a relocation motion:

A. In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:
(1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development.
(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's views about the proposed relocation, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
(7) The reasons of each person for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
(10) The feasibility of a relocation by the objecting person.
(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

"This statute mandates that all of the factors set forth be considered by the court. It does not, however, direct the court to give preferential consideration to certain factors." Curole v. Curole , 02-1891, p. 6 (La. 10/15/02), 828 So.2d 1094, 1097. "A trial court's determination in a relocation matter is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion." Id. at 1096.

The trial court provided the following extensive oral reasons for denying Danielle's relocation motion:

[T]hese parties have been in continuous litigation since 2015 up until the present date.
Since then, basically, [Kyle] has remarried approximately three years ago and he now has an eighteen-month-old daughter that was born of that marriage. [Danielle] has remarried back in the December of 2015.... She wants to move over where her parents now reside in Grapevine, Texas. And, basically her reasons for relocating were that the school system was better and she and her husband want to go to work and go to school and live with the kids in the State of Texas.
The facts also provide that Mrs. Brooks is employed here presently as a waitress ... and she works basically six days a week. Her husband is unemployed and he's been unemployed for the last two years. He does do some Army Reserve work about one weekend a month over in Texas, and the children primarily stay at home with him while she's working.... [T]hey've been living in public housing in a three bedroom apartment since 2011, they have one vehicle, and the children are enrolled in school in Pickering. [Kyle] works at the Enterprise car rental place as some kind of a manager, and his wife is a nurse who works three nights over in Alexandria.... [T]he record reflects that [the children's] attendance [at school] is questionable and they're often tardy, and most of these absences and tardies take place while they're with their mother because as the mother testified, the daughter's hard to get up.
.... The [c]ourt has taken into consideration all of these twelve factors [set forth in La.R.S. 9:355.14 ] and I'm going to go through the twelve factors and give my reasons with respect to those factors.
First of all, as far as the nature, the quality, the extent of involvement, and the duration of the relationship with the child with the person proposing relocation and with the non-relocating parent, siblings, and other significant persons in the child's life, the [c]ourt finds that as far as all of these parties are concerned, these children have very close relationships with everyone.... The ages of these children are ... eleven [and] ... eight. And as far as the impact of this relocation on their physical well-being is concerned, there basically hasn't been any evidence about any physical well-being of the children or how that relocation will affect them as far as that goes, and likewise, as far as their emotional development is concerned.
As far as the educational impact is concerned, ... the only evidence as far as that goes has been merely by testimony. There's not been any documentary evidence that's been introduced that shows that Texas schools are any better than our schools in Vernon Parish....
The feasibility of preserving a good relationship between the non-relocating parent and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties: well, quite frankly, the financial circumstances of these parties, especially as far as the mother's
concerned, is very disturbing to this [c]ourt. Here I have a situation of a mother who's basically the bread winner of the family. She works six days a week at a restaurant and she has a husband at home who's been unemployed for the last two years. They live in public housing and they've been doing so since 2011.... [H]er husband has made no effort that I can find that he's done anything to try to obtain any type of employment here in Vernon Parish to improve their financial situation at all ... basically, he's been sitting at home and their excuse is that he's been at home taking care of the kids. Well, quite frankly, I would be more impressed with a parent of these children staying home with the kids than I would a step-parent, and that's been the situation.... [A]s far as [Kyle] is concerned, he's employed ... and his wife is working and going to school.
....
The reason of [Danielle] to seek to relocation is basically that she wants to go to school and work in the State of Texas. And basically, all of that as far as the [c]ourt is concerned appears to be purely speculative. She said she can get a job, but she doesn't have any job lined up whatsoever; nothing. Her husband says he wants to be a State Trooper, but he hasn't been accepted into State Trooper School, and he also says that he wants to be a State Trooper and go to work.... [W]hat that does, is that puts these children in a situation of being raised by their grandparent, their grandmother basically, because the grandfather's gone all the time, while they both work and go to school and don't have any time to spend with their children in the State of Texas.
....
Next, is the extent to which the objecting person has filled his financial obligations to the person seeking relocation, including the child support in this particular case. There's been some testimony that [Kyle] was behind on his child support.... But to your credit, you've caught up, and the testimony is that as of the present time, he's caught up and he's current.
The feasibility of the relocation of the objecting person. Well, we've talked about that quite a bit. Is it really feasible for [Kyle] to uproot he and his wife and move from a situation where both he and his wife's family live in Vernon Parish and go to Dallas, Texas? I find that it's not really feasible. Is it possible? Yes. Do they have Enterprise Rent-A-Car in Dallas, Texas? Sure they do. Do they have hospitals for his wife to go to work over there? Sure they do. But the realistic expectation for him to uproot and relocate not only he, his wife, and his new child and to leave their respective families and move to Dallas, Texas because momma wants to go there, is unreasonable.
There is no history of substance abuse or harassment that I've heard. But the most disturbing factor in this whole case has to do with this young man's testimony that I heard.... This child came in and testified, and it was evident that he had memorized a list of reasons why he wanted his-why his father and his paternal grandparents were bad people. He had been clearly influenced by his mother and his entire maternal side of his family.... He even told me about being given paper and pen in his grandparents' hotel room the day before our first hearing, and he and his sister made lists of the reasons they wanted to move to the State of Texas. That is inappropriate.
....
You have been poisoning your children's minds against their father and their entire family. There is no way in the world I'm going to approve this relocation under those circumstances.
....
Your children have been influenced and they are being harmed by this. They both love you.... [Y]our son is a very intelligent young man, and he-these children love both of you. And I know they love your parents too, but I'm not giving that child's-his reasons any consideration whatsoever. I was extremely disturbed when I finished speaking with him.
[Y]'all have lived here your whole lives. These children have lived here primarily their whole lives. I just don't see a real reason that it's in these children's best interest to move.

On appeal, Danielle argues that "though the [trial court's] oral ruling does discuss some of the factors for relocations found in La.[R.S.] 9:355.14, it is clear that the catalyst for the [trial] [c]ourt's decision was the determination that the parties could no longer be co-domiciliary parents." In particular, she notes that the trial court's ruling seemed to be based on testimony from one of the children that indicated to the trial court that Danielle was improperly influencing the children, which she denies occurred. She further argues that the benefits of the proposed relocation would "far outweigh the relatively minimal impact the move will have on the children's relationship with [Kyle]."

However, as reflected above, the trial court extensively discussed the factors provided by La.R.S. 9:355.14, and there is no indication that the trial court's decision was based upon its conclusion to modify custody. Rather, the trial court seemed particularly concerned regarding Danielle's and/or her family's inappropriate attempt to influence the children concerning their opinion on moving to Texas; which was appropriate for the trial court to consider in connection with Danielle's relocation motion. After reviewing the record, we find that the trial court did not abuse its discretion in denying Danielle's motion for relocation.

DECREE

For the reasons stated above, the portion of the trial court's ruling modifying the custody arrangement so as to name Kyle Ganaway as the primary domiciliary parent is hereby reversed. We further affirm the trial court's ruling denying Danielle Ganaway's (now Semento-Brooks') relocation motion. The costs of this appeal are assessed equally between the parties.

REVERSED IN PART; AFFIRMED IN PART.


author: GRAVOIS, J.

text:
    Santo A. DILEO v. James A. HARRY
    NO. 17-CA-240
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, SANTO A. DILEO, Santo A. Dileo, Sr., Kenner.
    COUNSEL FOR DEFENDANT/APPELLEE, JAMES A. HARRY, James A. Harry, Metairie.
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
   GRAVOIS, J.

Plaintiff/appellant, Santo Dileo, appeals the trial court's dismissal of his invasion of privacy and defamation claims against defendant/appellee, James Harry. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 30, 2014, Mr. Dileo filed a "Petition for Defamation, Libel, and Invasion of Privacy Damages" against Mr. Harry. The claims arose out of a civil suit in the 40th Judicial District Court in which the parties were opposing counsel. In his petition, Mr. Dileo alleged that in the earlier case, in an opposition to exceptions, as well as in a pre-trial memorandum, Mr. Harry cited In re Dileo , 307 So.2d 362 (La. 1975), a suit involving Mr. Dileo, with the intention to invade Mr. Dileo's privacy and thus "making an unreasonable public disclosure of embarrassing private facts" about Mr. Dileo. Mr. Dileo also alleged that during a telephone pre-trial conference with Judge Madeline Jasmine and attorney Steven Reed, Mr. Harry accused Mr. Dileo of child molestation. Mr. Dileo alleged that this statement was defamatory per se .

On November 25, 2014, in response to the petition, Mr. Harry filed "Exceptions of No Cause of Action and Motion for Sanctions." Mr. Harry argued that in his petition, Mr. Dileo failed to allege any of the elements of an invasion of privacy claim, and failed to allege all of the elements of a defamation claim. Additionally, he argued that the trial court is not authorized to regulate the practice of law and thus lacked jurisdiction over these claims. On January 12, 2015, the trial court conducted a hearing on the exceptions and took the matter under advisement. In a written judgment with extensive reasons rendered on May 26, 2015, the trial court denied Mr. Harry's exception regarding the unauthorized regulation of the practice of law, granted his exception of no cause of action regarding the invasion of privacy claim, denied his exception of no cause of action regarding the defamation claim, and denied his motion for sanctions.

A bench trial on the merits of the remaining defamation claim was held on January 12, 2017. Mr. Dileo called Mr. Harry and himself as witnesses. Mr. Harry testified that he did participate in a telephone conference with Judge Jasmine on October 17, 2013 regarding the selection of a trial date. He testified that he did not say during the telephone conference that Mr. Dileo was a child molester or had molested anyone, but rather that he was looking for evidence of child molestation, if it existed. He testified that the purpose behind mentioning child molestation was to show the court that the case was not ready for trial, as additional discovery was necessary. Mr. Dileo testified that during the telephone conference in question, Mr. Harry told Judge Jasmine, "I believe we can even prove that he molested his four-year-old daughter." He testified that at no time during the conference did Mr. Harry say that he needed more time to prove this.

Following this testimony, Mr. Dileo rested his case. Mr. Harry then moved for a "directed verdict." In support of his motion, Mr. Harry argued that those persons present on the telephone conference did not testify, nor were they subpoenaed to testify at the trial, and thus there is a presumption that had they testified, they would have testified that Mr. Dileo was not telling the truth. Mr. Harry further argued that Mr. Dileo did not carry his burden of proof to show more likely than not that Mr. Harry made the alleged statement.

After hearing the parties' arguments, the trial court granted the involuntary dismissal of Mr. Dileo's defamation claim pursuant to La. C.C.P. art. 1672(B). In its written reasons for judgment dated January 13, 2017, the trial court found that the evidence presented by Mr. Dileo was uncorroborated and insufficient to satisfy his burden of proof. The trial court found that it did not believe that Mr. Harry had made a defamatory per se statement about Mr. Dileo, either expressly or implicitly. According to the trial court, the testimony did not preponderate in favor of either party, and neither party introduced any corroborating evidence to sway the trier of fact. Thus, the trial court found that Mr. Dileo did not "satisf[y] his preponderance of the evidence burden of proof." This appeal followed.

On appeal, Mr. Dileo asserts the following assignments of error, to-wit:

1. The trial court erred as a matter of law when it granted Mr. Harry's exception of no cause of action as to the invasion of privacy claim.
2. The trial court erred when it found that Mr. Harry's statement about child molestation did not rise to the level of defamation per se when the trial court and this Court found no privilege, qualified or otherwise, existed in a pre-trial conference.
3. The trial court erred in giving the same evidentiary weight to Mr. Harry's testimony when he presented no evidence whatsoever that he had a reasonable belief of his "defamatory per se accusations against [Mr.] Dileo."
4. The trial court erred when it denied introduction of Mr. Harry's July 15, 2014 letter to the Office of Disciplinary Counsel ("ODC") concerning his molestation accusation, as well as other defamatory accusations, since Mr. Harry waived any privilege he may have had by introducing into evidence Mr. Dileo's first ODC complaint, as well as by filing his reconventional demand for defamation against Mr. Dileo for Mr. Dileo's first ODC complaint.

ASSIGNMENTS OF ERROR

Invasion of privacy claim

On appeal, Mr. Dileo argues that the trial court erred when it granted Mr. Harry's exception of no cause of action as to the invasion of privacy claim.

"In reviewing a trial court's ruling on a peremptory exception of no cause of action, an appellate court considers this question of law de novo ." Am. Rebel Arms, L.L.C. v. New Orleans Hamburger & Seafood Co. , 15-599 (La. App. 5 Cir. 2/24/16), 186 So.3d 1220, 1222. "The function of the exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. In other words, the exception tests the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. The exception is triable only on the face of the petition, accepting as true the well-pleaded facts therein. Thus, the standard for granting an exception of no cause of action is not the likelihood that the plaintiff will prevail at trial; rather, it is whether, on the face of the petition, accepting all allegations as true, the petition states a valid cause of action for relief. On review, the appellate court asks whether, in the light most favorable to the plaintiff and with every doubt resolved in the plaintiff's favor, the petition states any valid cause of action." Id. (Internal citations omitted.)

In Jaubert v. Crowley Post-Signal, Inc. , 375 So.2d 1386 (La. 1979), the Supreme Court held that the right of privacy embraces four different interests, each of which may be invaded in a distinct fashion: (1) the appropriation of an individual's name or likeness for the use or benefit of the defendant; (2) unreasonable intrusion upon the plaintiff's physical solitude or seclusion; (3) publicity which unreasonably places the plaintiff in a false light before the public; and (4) unreasonable disclosure of embarrassing private facts. Id. at 1388. An actionable invasion of privacy occurs only when the defendant's conduct is unreasonable and seriously interferes with the plaintiff's privacy interest.

Id. at 1389. The reasonableness of the defendant's conduct is determined by balancing the plaintiff's interest in protecting his privacy from serious invasions with the defendant's interest in pursuing his course of conduct. Id.

In his petition, Mr. Dileo alleged that on two separate occasions, Mr. Harry referenced In re Dileo , supra , a lawsuit involving Mr. Dileo, that the reference had no relevance to the pleadings it was referenced in, and that the reference would not have been admissible under La. C.E. art. 609. He alleged that the case was referenced with the intention to invade his privacy thereby making an unreasonable disclosure of embarrassing private facts about him. The trial court granted Mr. Harry's exception of no cause of action as to the invasion claim, finding that legal opinions such as that rendered in In re Dileo are not private, and thus Mr. Dileo failed to assert an integral element of his invasion of privacy claim. On appeal, Mr. Dileo argues that the trial court erred in granting the exception because the "dissemination of personal information about [Mr.] Dileo was prohibited by Code of Evidence Article 609."

Upon de novo review, we find that the trial court did not err in granting the exception of no cause of action at to the invasion of privacy claim. The factual allegations contained in Mr. Dileo's petition do not support an invasion of privacy claim. In Mr. Dileo's petition, his claim for invasion of privacy is based on Mr. Harry's references to In re Dileo . However, In re Dileo is a published legal opinion and is not private. Since the petition fails to allege that a privacy right was involved, we find that Mr. Dileo has failed to meet his burden of asserting an actionable invasion of privacy claim.

On appeal, Mr. Dileo argues that Mr. Harry disregarded and violated La. C.E. art. 609 to win his lawsuit, and thus the judgment of the trial court on his invasion of privacy claim should be dismissed. We find no merit to this argument.

An alleged violation of La. C.E. art. 609 does not support a claim of invasion of privacy.

For the foregoing reasons, we find that the allegations contained in Mr. Dileo's petition do not give rise to a legally enforceable cause of action for invasion of privacy. The trial court thus properly granted Mr. Harry's exception of no cause of action as to the invasion of privacy claim. This assignment of error is without merit.

Proffered evidence

Mr. Dileo also argues on appeal that his proffered evidence should have been admitted. During the trial, Mr. Dileo attempted to offer into evidence a letter written by Mr. Harry to the ODC regarding the ODC investigation initiated by Mr. Dileo against Mr. Harry regarding these same claims. Mr. Harry objected, claiming privilege pursuant to Supreme Court Rule XIX, Section 12. The trial court sustained the objection, prompting Mr. Dileo to proffer the letter and testimony regarding the letter. Mr. Dileo now argues on appeal that Mr. Harry waived any privilege that would prevent introduction of his response letter to the ODC complaint filed against him because Mr. Harry himself introduced Mr. Dileo's first complaint letter to the ODC as an attachment to his Motion for Bond for Security that was previously filed in this case, and that Mr. Harry also violated

Supreme Court Rule XIX when he reconvened against Mr. Dileo for defamation because Mr. Dileo had filed his first ODC complaint against Mr. Harry.

Louisiana Supreme Court Rule XIX, Section 12, titled "Immunity," provides, in pertinent part:

A. From Civil Suits. Communications to the board, hearing committees, or disciplinary counsel relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely privileged, and no lawsuit predicated thereon may be instituted against any complainant or witness. ...

The record reflects that Mr. Harry filed a "Motion for Bond for Security Costs" on October 9, 2014. As attachments to the memorandum in support of his motion, Mr. Harry included communications related to the ODC investigation in question. Specifically, he included Mr. Dileo's initial complaint against him and a letter from the ODC to him noting dismissal of the complaint. At the trial on the defamation claim, Mr. Dileo proffered Mr. Harry's response to the ODC regarding the complaint made against him. Considering Mr. Harry's own public disclosure in the instant case of communications regarding the ODC complaint filed by Mr. Dileo against him, we find that he waived his privilege against disclosure thereof, and thus the trial court erred in not allowing admission of Mr. Harry's response to the ODC complaint filed by Mr. Dileo against him. Considering this additional proffered evidence on de novo review, we now examine the merits of the trial court's granting of the involuntary dismissal of the defamation claim.

Defamation claim

Finally, Mr. Dileo argues that the trial court erred in granting the involuntary dismissal of his defamation claim. He asserts that the trial court erred when it found that Mr. Harry's statement about child molestation did not rise to the level of being defamation per se when the trial court and this Court found no privilege, qualified or otherwise existed, in a pre-trial conference. He also argues that there was nothing to support Mr. Harry's statement that he referenced the child molestation to show the case was not ripe for trial. He argues that Mr. Harry did not introduce any evidence or call any witness to prove that he did not have a reasonable belief of the child molestation allegation.

In a nonjury case, La. C.C.P. art. 1672(B) authorizes the trial court to grant an involuntary dismissal of the action at the close of the plaintiff's case. "The trial court has much discretion in determining whether to grant a motion for involuntary dismissal."

Treen Constr. Co., Inc. v. Schott , 03-1232 (La. App. 5 Cir. 1/27/04), 866 So.2d 950, 954. "An appellate court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. In determining whether an involuntary dismissal should be granted after the plaintiff has completed the presentation of his evidence during a bench trial, the appropriate standard is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. The trial court is not required to review the evidence presented in the light most favorable to the plaintiff." Id. (Internal citations omitted.)

To prevail on a claim of defamation, the plaintiff has the burden of proving by a preponderance of the evidence five essential elements: defamatory words, publication, falsity, malice, and resulting injury. Sommer v. Department of Transp. & Dev. , 97-1929 (La. App. 4 Cir. 3/29/00), 758 So.2d 923, 939, rehearing granted in part , 97-1929 (La. App. 4 Cir. 3/29/00), 758 So.2d 923 at 955, writ denied , 00-1759 (La. 10/27/00), 772 So.2d 122. If even one of these elements is absent, the cause of action fails. Id.

Defamatory words are those which tend to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating with him. Doe v. Grant , 01-0175 (La. App. 4 Cir. 1/29/03), 839 So.2d 408, 415, writ denied , 03-0604 (La. 5/2/03), 842 So.2d 1102, citing Sommer , 758 So.2d at 939-940. To be actionable, the words must be communicated or published to someone other than the plaintiff. Words that expressly or implicitly accuse another of criminal conduct or that, by their nature, tend to injure one's personal or professional reputation are considered defamatory per se . If the plaintiff proves publication of defamatory per se words, the elements of falsity, injury and malice are presumed, although they may be rebutted by the defendant. To rebut this presumption, defendants have the burden of proving a reasonable belief in the truth of the statements. Id. See also Johnson v. Camanga , 02-1198 (La. App. 5 Cir. 4/29/03), 845 So.2d 1140, 1145.

In the instant case, the trial court in its reasons for judgment found that based on Mr. Harry's testimony, it did not believe that Mr. Harry made a defamatory per se statement about Mr. Dileo, either expressly or implicitly. Rather, the court believed Mr. Harry's recollection of events concerning the telephone pre-trial conference with Judge Jasmine that he (Mr. Harry) was merely seeking to extend discovery deadlines to ascertain the truth of the molestation allegation. The court went on to note that it seemed very likely that "[Mr. Harry's] hesitant wording attempted not to impart truth to the molestation allegations against Mr. Dileo, but perhaps skepticism."

In Snider v. La. Med. Mut. Ins. Co. , 14-1964 (La. 5/5/15), 169 So.3d 319, 323, rehearing denied , 14-1964 (La. 6/30/15), 2015 La. LEXIS 1501, the Louisiana Supreme Court recently set forth the well-established guidelines for reviewing factual determinations of the trial court, to-wit:

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. This test dictates that a reviewing court must do more than simply review the record for some evidence that may controvert the trial court ruling. Rather, it requires a review of the entire record to determine whether manifest error has occurred. Thus, the issue before the court of appeal is not whether the trier of fact was right or wrong, but whether the fact-finder's conclusion was a reasonable one. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Where the factfinder's determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. (Internal citations omitted.)

Further, "[w]hen findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). However, "[w]here documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination." Id. at 844-45.

Upon review, we cannot say that the trial court's factual finding as to the defamation claim was manifestly erroneous. Mr. Dileo argues that Mr. Harry failed to provide support for his testimony. However, the burden of proof was on Mr. Dileo to prove the publication of a defamatory per se statement. Even considering the proffered letter to the ODC, we find that Mr. Dileo failed to provide any supporting evidence that Mr. Harry made a defamatory per se statement about Mr. Dileo. Mr. Harry's response letter to the ODC is consistent with his trial testimony that he was merely seeking to extend discovery deadlines. The trial court heard the testimony of both parties and chose to believe Mr. Harry's testimony over that of Mr. Dileo. Giving great deference to the trial court's ruling and upon review of the entire record, we cannot say that the trial court was unreasonable in finding that Mr. Harry did not make a defamatory per se statement about Mr. Dileo, either expressly or implicitly. These assignments of error are without merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court's dismissal of Mr. Dileo's invasion of privacy and defamation claims. Costs of the appeal are assessed to Mr. Dileo.

AFFIRMED

      In a writ application to this Court, Mr. Harry sought this Court's supervisory review of the trial court's denial of the exception of no cause of action regarding the defamation claim. This Court denied Mr. Harry's writ application. See Dileo v. Harry , 15-476 (La. App. 5 Cir. 9/15/15) (unpublished writ disposition).

      Even though Mr. Harry moved for a "directed verdict," because this case was tried in a bench trial, and not before a jury, a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672 is the proper procedural device in this case. See Brock v. Singleton , 10-550 (La. App. 5 Cir. 3/29/11), 65 So.3d 649, 660.

      For convenience, we address the assignments of error presented out of order.

      Although the judgment on this exception was rendered on May 26, 2015, it is properly before this Court for review in this appeal. La. C.C.P. art. 1915(B) provides:
      (B)(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
      (2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
      Based on the plain language of La. C.C.P. art. 1915(B), the May 26, 2015 judgment sustaining the exception of no cause of action as to the invasion of privacy claim was a partial judgment because it did not dispose of all of the claims. Further, the trial court did not designate it as a final, appealable judgment.

      La. C.E. art. 609 provides:
      A. General civil rule. For the purpose of attacking the credibility of a witness in civil cases, no evidence of the details of the crime of which he was convicted is admissible. However, evidence of the name of the crime of which he was convicted and the date of conviction is admissible if the crime:
      (1) Was punishable by death or imprisonment in excess of six months under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party; or
      (2) Involved dishonesty or false statement, regardless of the punishment.
      B. Time limit. Evidence of a conviction under this Article is not admissible if a period of more than ten years has elapsed since the date of the conviction.

      We note that when a petition fails to state a cause of action, but may be amended to cure the defect, the court shall grant plaintiff leave to amend. La. C.C.P. art. 934 ; See Wirthman-Tag Construction Co., LLC v. Hotard , 00-2298 (La. 4 Cir. 12/19/01), 804 So.2d 856, 861 ; Crooms v. Lafayette Parish Government , 93-526 (La. App. 3 Cir. 1993), 628 So.2d 1224, 1226-27. If the petition's allegations are merely conclusory and fail to specify the acts that establish a cause of action, then the district court should permit plaintiffs the opportunity to amend the petition. HMC Management Corp. v. New Orleans Basketball Club , No. 10858 (La. App. 4 Cir. 1979), 375 So.2d 700, 707. However, when the grounds of the objection of no cause of action cannot be removed, then plaintiffs need not be given an opportunity to amend. Treasure Chest Casino, LLC v. Parish of Jefferson , 96-1010 (La. App. 1 Cir. 3/27/97), 691 So.2d 751, 755. In the instant case, we find that Mr. Dileo did not state a cause of action because the basis of his claim relied on a public matter and that defect cannot be cured by amending the petition. Thus, Mr. Dileo need not be given an opportunity to amend the petition as to this cause of action.

      La. C.C.P. art. 1672(B) provides:
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

      Though he does not assign it as an error, in his appellate brief, Mr. Dileo argues that this Court should award him damages on the defamation claim. Considering our finding that the trial court did not err in granting the involuntary dismissal of the defamation claim, this argument is moot.