author: Judge Terrel J. Broussard,

text:
    Heather Roper KAPTEIN v. Jesse KAPTEIN
    NO. 2016-CA-1249
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 14, 2017
    Rehearing Denied July 17, 2017

      Robert C. Lowe, Suzette Marie Smith, Jeffrey M. Hoffman, LOWE STEIN HOFFMAN ALLWEISS & HAUVER, 3600 One Shell Square, 701 Poydras Street, New Orleans, LA 70139 COUNSEL FOR PLAINTIFF/APPELLEE, HEATHER ROPER KAPTEIN
    Cindy H. Williams, ATTORNEY AT LAW, 111 Veterans Blvd., Suite 804, Me-tairie, LA 70005 COUNSEL FOR DEFENDANT/APPELLANT, JESSE KAP-TEIN
    (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Terrel J. Broussard, Pro Tempore)
   Judge Terrel J. Broussard,

Pro Tempore

hln this custody dispute, appellant/defendant, Jesse Kaptein, appeals a trial court’s decision that awarded sole custody of C.E.K. to appellee/plaintiff, Heather Kaptein, continued the suspension of Face-Time visitation, and determined that reasonable visitation with him was not in the best interest of the child. For the reasons that follow, we hereby affirm the trial court’s judgment that awarded sole custody of C.E.K. to Ms. Kaptein, but reverse that part of the judgment regarding the suspension of FaceTime visitation with Mr. Kaptein.

FACTS AND PROCEDURAL HISTORY

The parties’ daughter, C.E.K., was born on February 25, 2013. On April 30, 2014, Ms. Kaptein filed a petition for divorce and requested sole custody of C.E.K. After a hearing, on May 19, 2015, the trial court awarded Ms. Kaptein interim sole custody, while Mr. Kaptein was awarded interim supervised visitation with C.E.K. each month from the first Saturday until the second Sunday for a minimum time period of two (2) hours to a maximum of eight (8) hours each day, and FaceTime | ¿visits. Mr. Kaptein was also ordered to pay Ms. Kap-tein interim spousal support of $15,000 per month and child support of $5,000 per month. In her reasons for judgment, the judge stated as follows:

The Court finds Mr. Kaptein’s lifestyle and travel are not stable. Mr. Kaptein admitted to engaging in multiple extramarital affairs, with not one, but multiple women in several different countries. He also admitted to paying the travel expenses for such women, so he could not only have sex with them, but have unprotected sex with them, thereby jeopardizing his health, and that of his wife, Mrs. Kaptein. Mr. Kaptein’s testimony and admitted indiscretions demonstrate a reckless disregard for his personal safety, which calls into question the safety of the minor child. Adultery alone does not demonstrate a lack of moral fitness on behalf of Mr. Kaptein, but his precarious nature, including the frequency, location, and disregard for safety—exhibited by unprotected sex with women in different countries— does. Mr. Kaptein does not have a stable home, he does not live or work in the United States, nor will he be in this country for an extended period of time. Although Mr. Kaptein’s accomplishments as a businessman are commendable, his choices to pursue a career and a scandalous lifestyle away from his family, weigh against him. Therefore, this Court finds it in the best interest of the minor child to award interim sole custody to Mrs. Kaptein.

On November 9,2015, Mr. and Ms. Kap-tein stipulated that the retroactive amount of child support and interim spousal support arrears was $41,500.00. At that time, the trial court ordered Mr. Kaptein to pay one-half of the arrearage ($20,750.00) by November 80, 2015, and the remaining one-half by January 15, 2016.

On December 7, 2015, Ms. Kaptein filed a rule for contempt alleging that Mr. Kap-tein had (1) failed to make the December 5, 2015 child support and interim spousal support payments, (2) failed to pay the $20,750.00 arrearage payment that was due on November 30, 2015, and (3) paid only $1,750.00 on December 6,2015.

IsOn January 15, 2016, Ms. Kaptein filed an amended and supplemental rule for contempt alleging that Mr. Kaptein (1) failed to make the January 5, 2016 child support and interim spousal support payments, (2) paid only $1,750.00 on January 6, 2016, (3) failed to pay the $20,750.00 arrearage payment due on January 15, 2016, and (4) failed to produce financial documents as ordered on multiple occasions by the trial court. Ms. Kaptein also alleged that Mr. Kaptein had not visited with C.E.K. since September 2015.

After a hearing held on January 26,2016 on Ms. Kaptein’s contempt rule and amended contempt rule, the trial court signed a written judgment on February 4, 2016, that (1) granted Ms. Kaptein’s rule for contempt and found that as of the date of the hearing, Mr. Kaptein owed $78,000.00 in past due support, (2) ordered Mr. Kaptein to pay $2,225.50 in attorney’s fees and $47.00 in court costs, (3) ordered Mr. Kaptein to pay $25,000.00 -within 30 days from date of the hearing or otherwise spend 30 days in Orleans Parish Prison for his failure to abide by the judgments of May 19, 2015, and October 29, 2015, and (4) suspended Mr. Kaptein’s- rights to visitation through FaceTime pending further orders from the trial court. At that time, the trial court set the final custody hearing on July 1, 2016.

On March 7, 2016, attorney Cindy H. Williams filed a notice of limited appearance on behalf of Mr. Kaptein seeking to appear only as appellate counsel for him in his appeal of the February 4, 2016 judgment.

On May 9, 2016, Ms. Kaptein filed a trial subpoena requesting the court-appointed mental -health evaluator’s, Dr. Daliah Bauer,- appearance at the custody I ¿hearing set on July 1, 2016. On May 17, 2016, Ms. Kaptein served Mr. Kaptein through Mr. Brett Bonin, who was appointed by the trial court on January 26,2016 as agent for service of process, with a notice of perpetuation deposition notifying him of her intent to “take the perpetuation deposition of Dr, Daliah Bauer, Ph.D., on June 17, 2016.” On May 20,2016, Mr. Bonin emailed that notice to Mr. Kaptein and Ms. Williams, and no one objected.

On June 27, 2016, the trial court denied Mr. Kaptein’s (1) June 23, 2016 motion to continue the custody trial scheduled for July 1, 2016, and (2) motion to enroll Ms. Williams as his trial counsel. However,' on June 28, 2016, Ms. Williams was allowed to enroll as- trial counsel without a continuance.

The hearing on Ms, Kaptein’s motion for sole custody was tried on July 1, 2016, whereby the trial court granted Ms. Kap-tein sole custody, maintained its previous order suspending Mr. Kaptein’s FaceTime visitation, and held that “reasonable visitation with Mr. Kaptein is not. in the best interest of the child.”- In its reasons for judgment, the trial court stated:

In any determination of child custody, the paramount consideration is the best interest of the child. La. G.C. art. 131. If custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. La. C.C. art. 132. The court shall consider all relevant factors in determining’ the child’s best interest. La. C.C. art, 134. The list of factors provided by La. C.C. art. 134 is nonexclusive, and the determination of the weight to be given each factor is left to the discretion of the trial court. See Comment (B), La. C.C. art. 134. The Court finds Ms. Kaptein met her burden in showing by clear and convincing evidence that sole custody is in the best interest of the child.
(1) The love, affection, and other emotional ties between each party and the child.
|fiMs. Kaptein has. strong emotional ties with C.[E.]K. Contrarily, no evidence was presented to show that the child has strong ties to Mr. Kaptein, Mr. Kaptein has failed to demonstrate a willingness to be a part of C.[E.]K.’s life. Ms. Kaptein testified,, on cross-examination, that C’.[E.]K, has never asked the whereabouts of her father. This factor weighs strongly in favor of Ms. Kaptein.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
Mr. Kaptein has shown little interest in providing C.[E.]K. with love and guidance. He has not seen C.[E,]K, for over half of her life because he has resided in a different country, Mr. Kaptein has previously testified he is an atheist. Ms. Kaptein has been the sole caretaker of C.[E.]K. and testified she takes G.[E.]K. to church and preschool during the week. Ms. Kap-tein shows a genuine desire to see C.[E.]K. prosper academically and in extracurricular activities like swimming, dance, and music. No evidence, aside from Mr. Kaptein’s alleged desire to lift the FaceTime visitation suspension, was presented to show Mr. Kaptein is interested in seeing or rearing his child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
Ms. Kaptein testified she is not currently employed. She testified her intention is to secure a job once this litigation has ended. The evidence shows that Mr. Kaptein is a successful businessman with the means to provide food and material needs for the child. Mr. Kaptein is under orders to pay support to Ms. Kaptein, and Mr. Kaptein has been held in contempt for his failure to follow those orders.
|fi(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
The best interest of the minor child is served by keeping the child in New Orleans, where the child has lived for the majority of her life.
(5)The permanence, as a family unit, of the existing or proposed custodial home or. homes. .
Ms. Kaptein testified she resides in the former matrimonial home and will be moving to'a smaller home in New Orleans in August. During the existence of the marriage, Mr. Kaptein traveled the world for business. Since the termination of the marriage, the evidence shows that Mr. Kaptein has continued making trips to various countries. His business and pleasure habits have been everything but permanent. To the contrary, Ms. Kaptein has established a permanent home with C,[E.]K. in .New Orleans, while providing stability for the minor child.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
Much of Ms. Kaptein’s testimony supported this faetor. The Court finds that Mr. Kaptein has a sexual obsession that adversely affects his ability and his fitness to raise C.[E.]K. Mr. Kaptein is more interested in traveling and engaging in lavish sex parties than he is in being a father. Ms. Kap-tein testified that during their marriage, Mr. Kaptein lied to her, had sex .with various women from different countries, and at this point she does not know him anymore. On cross-examination, Ms. Kaptein testified that C.[E.]K. is not aware of Mr. Kaptein’s sexual habits. Nevertheless, the Court .finds-that Mr..Kaptein’s lifestyle, his lack of credibility, his failure to comply .with court orders and failure to take interest in seeing his child during these formative years of her |7life, demonstrate that his moral fitness would be a detriment to the child.
(7) The mental and physical health of each party.
Aside from sc recent leg injury' sustained by Mr. Kaptein, which allegedly prevented him from traveling via air, no testimony was presented to put the mental or physical health of the parties at issue.
(8) The home, school, and community history of the child.
Last fall, C.[E.]K. enrolled in preschool at the Academy of Sacred Heart and she will continue attending Sacred Heart this coming fall. C.[E.]K. was raised uptown and is involved with swimming, music, and dance in the area. .
. (9) The reasonable .preference of the child, if the court deems the child to be of sufficient age to express a preference.
The Court did not hear testimony from the child regarding her preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
Ms. Kaptein testified she does not think Mr. Kaptein is fit to co-parent C.[E.]K. because of his risqué lifestyle. She stated she would be willing to co-parent with Mr. Kaptein once he has completed the recommendations made by Dr. Bauer.
(11) The distance between the respective residences of the parties.
To this date, the Court is unclear exactly where Mr. Kaptein resides. The Court cannot definitively analyze the distance between Ms. Kaptein’s New Orleans home and Mr. Kaptein’s residence because Mr. Kaptein has never provided the Court with a valid address, despite being ordered to do so.
|s(12) The responsibility for the care and rearing of the child previously exercised by each party.
Ms. Kaptein has taken responsibility for 100% of the care and rearing of the minor child. Mr. Kaptein has not visited with C.[E.]K. since September of 2015.
Pursuant to La. C.C. art. 136, a parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child. La. C.C. art. 136. The Court finds that due to Mr. Kaptein’s failure to comply with visitation, his promiscuous lifestyle, and his departure from the child’s life, reasonable visitation does not serve the best interest of the minor child.
As it relates to the partition of the community, Ms. Kaptein failed to comply with R.S.9:2801, the mandatory article for dividing community assets and liabilities. On March 1 [ 5, 2016, the Court signed the order page—attached to Ms. Kaptein’s Petition for Partition of Community Property—which quotes the language of La. R.S. 9:2801 and orders that both parties are ordered to traverse or concur in the descriptive list filed by the other party within sixty days of the last detailed descriptive list. The record shows that Ms. Kaptein filed her last detailed descriptive list on June 9, 2016. According to La. R.S. 9:2801 and the March 15, 2016 order signed by this Court, Mr. Kaptein has sixty days from June 9th to traverse Ms. Kap-tein’s last filed detailed descriptive list. The Court does not want to delay this matter, but more importantly it does not want to prejudice Mr. Kap-tein’s rights in his property. To partition the community at this posture would be premature.

Mr. Kaptein now appeals this final judgment, assigning the following assignments of error: (1) the trial court erred in awarding sole custody to Ms. Kaptein; (2) the trial court erred in ruling that reasonable visitation with him is not in the best interest of C.E.K., and in continuing the suspension of FaceTime visitation with C.E.K.; and (3) the trial court erred in allowing the introduction of Dr. Bauer’s deposition into th'e record because Dr. Bauer was not available at the hearing and his deposition was not properly perpetuated according to La. C.C.P. art. 1429.

DISCUSSION

The trial court shall award custody in accordance with the best interest of the child. La. C.C. art. 131. In determining the best interest of the child, “[e]aeh case must be viewed in light of the child’s age, the situation of the parents, and any other factor relevant to the particular case.” Palazzolo v. Mire, 08-0075, p. 35 (La. App. 4 Cir. 1/7/09), 10 So.3d 748, 768 citing White v. Kimrey, 37,408, p. 7 (La. App. 2 Cir. 5/14/03), 847 So.2d 157, 161. If the parents come to an agreement on who is to have custody, then the trial court must award custody in accordance with that agreement unless the best interest of the child requires a different award. La. C.C. art. 132. If there is no agreement, or if the agreement is not in the best interest of the child, then the trial court shall award joint custody unless custody in one parent is shown by clear and convincing evidence to be in the best interest of the child. La. C.C. art. 132. As stated by the Louisiana Supreme Court, “[i]t is the child’s emotional, physical, material and social well-being and health that are the court’s very purpose in child custody cases; the court must protect the child from the real -possibility that the parents are engaged in a bitter, vengeful, and highly emotional conflict.” Hodges v. Hodges, 15-0585, p. 3 (La. 11/23/15), 181 So.3d 700, 702. Further, because the trial judge is in the best position to ascertain the best interest of the child based on the particular circumstances of each case, a trial 11ncourt’s custody determination is entitled to great weight and will not be disturbed by an appellate court absent a clear abuse of discretion. Leard v. Schenker, 09-1438, pp. 2-3 (La. App. 4 Cir. 3/24/10), 35 So.3d 1152, 1154.

The first issue to address is whether the trial judge erred in awarding Ms. Kaptein sole custody of C.E.K. La. C.C. art. 134 enumerates the following twelve factors for the trial court to consider in determining the best interest of the child:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

These factors have been construed to be nonexclusive, and the trial court has the discretion to determine the relative amount of weight to be given each factor. The court is not required to analyze mechanically all of the dozen factors; rather, Inthe court should balance- and weigh the factors in view of the evidence presented. Palazzolo, 08-0075 at pp. 34-37, 10 So.3d at 768-70.

In this case, the trial court determined from-clear and convincing evidence that the best interest of C.E.K., now 4 years old, was served by the award of sole custody to her mother. Although Mr. Kaptein alleges that there was no evidence presented at the custody trial that showed joint custody would be harmful to C.E.K, we find that the trial record reflects a reasonable factual basis for the trial judge’s award of sole custody to'Ms. Kaptein. Specifically, the record evidences the fact that Mr. Kaptein had not seen C.E.K. for ten months preceding the custody trial, has not paid the court ordered child support as previously ordered, has consistently failed to provide his contact information to the court, as well as his attorneys throughout the custody proceedings, and has failed to appear for the interim and final custody hearings. After a review of the record, we agree with the trial court that Mr. Kaptein failed to demonstrate a willingness to be a part of C.E.K’s life when he lives in a different country and thus was not able to see C.E.K. for over half of her life. Under the particular facts of this case, we find no legal error in the trial court’s determination that sole custody with Ms. Kaptein is in thfe best interest of C.E.K.

The second issue to address is whether the trial court erred in ruling that reasonable visitation with Mr. Kaptein is not in the best interest of C.E.K., and continued the suspension of FaceTime visitation with C.E.K. Mr. Kaptein argues on appeal that the trial court suspended his FaceTime visitation on February 4, 2016, as a punitive measure after finding him in contempt of court for not paying, in full, the court’s orders relating to child support and interim spousal support. Mr. Kaptein alleges in his appellate brief that the trial court’s July 1, 2016 judgment h ¿‘seems -more [of] a punishment for his sex life and his inability to pay $20,000 per month than an appropriate ruling based on the best interests, of the child—because no matter how bad a husband Mr. Kaptein [he] was, it simply cannot be said that the child’s interests are best served by cutting her off completely from her father.” Conversely, Ms. Kaptein • argues that it is not in C.E.K.’s best interest to have a digital relationship with Mr. Kaptein and that the trial court properly suspended the Face-Time visitation.

La. C.C. art 136 provides that “[a] parent not granted- custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.” As with custody, the paramount criterion for determining a noncustodial parent’s right to visitation is the best interest of the child. Louisiana courts have consistently held that denial of visitation rights to a parent is an extreme measure warranted only by “conclMsive evidence that visitation would seriously endanger the child’s physical, mental, moral, or emotional health.” Hilkirk v. Johnson, 15-0577, p.43 (La. App. 4 Cir. 12/23/15), 183 So.3d 731, 755, citing Palazzolo, 08-0075, p. 52, 10 So.3d at 778; Becnel v. Becnel, 98-593, p. 5 (La. App. 5 Cir. 3/25/99), 732 So.2d 589, 592. (Emphasis added) Further, the question of visitation is always open to change when the conditions warrant it. Becnel, 98-593 at p.6, 732 So.2d at 592-93, citing Reynier v. Reynier, 545 So.2d 663, 664 (La. App. 5th Cir. 1989). When there have been restrictions placed on a noncustodial parent’s visitation rights, those restrictions should be lifted when it is shown to be in the child’s best interest. Id.

In this case, the record evidences the fact that Mr, Kaptein and C.E.K. were enjoying their FaceTime visitation up until the February 4, 2016 order, which 11Rsuspended Mr. Kaptein’s rights to such visitation after finding him in contempt of court. Although Ms. Kaptein testified that it was not in C.E.K’s best interest to have a solely digital relationship with' Mr. Kap-tein, she nonetheless testified that C.E.K. was unaware of Mr. Kaptein’s sexual behavior and/or relationships, and that she had no complaints concerning previous FaceTime visits with Mr. Kaptein or his behavior during those visits with C.E.K. The record is void of any conclusive evidence that FaceTime visitation with Mr. Kaptein poses any risk to C.E.K. or that’it is detrimental to the child. In fact, Dr. Bauer stated in his December 15, 2015 custody evaluation that C.E.K. "should continue to have the opportunity to communicate with her father through Face-time or Skype on a regular basis” and that as C.E.K. “gets older and becomes more cognizant and aware of the process, the time can be extended and she can become more independent in conversations with her father and his family.”' For these reasons, we reverse the trial court’s ruling, which continued the suspension of Face-Time visitation, as well as its finding that reasonable visitation is not- in the best interest of the child, and we hereby reinstate Mr. Kaptein’s rights to .FaceTime visitation with C.E.K. as previously. ordered.

The third issue to address is whether the trial court erred in allowing Dr. Bauer’s deposition into the record on July 1, 2016. Mr. Kaptein argues that Dr. Bauer’s vacation does not make her unavailable for purposes of creating an exception to the hearsay rule under La. C.E. 804. However; Ms. Kaptein argues | uthat Mr. Kaptein only objected to Dr. Bauer’s deposition under La. C.C.P. art. 1429, and that he cannot now assert on appeal a different ground for his objection. Ms. Kaptein also argues that Mr. Kaptein and his counsel received the notice of perpetuation deposition notifying them of her intent to “take the perpetuation deposition of Dr. Daliah Bauer, Ph.D., on June 17, 2016,” and that neither of them timely objected to the use of Dr. Bauer’s deposition at trial. Thus, Ms. Kaptein argues that the trial court did not abuse its discretion and correctly admitted the perpetuation deposition of the expert, Dr. Bauer. We agree.

The record indicates that Mr. Kaptein did in fact base his objection to the introduction of Dr. Bauer’s deposition on La. C.C.P. art. 1429, which governs the perpetuation of testimony. La. C.C.P. art. 1450 governs the admissibility of depositions when a witness is unavailable, and states as follows:

A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
JjS***
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable;
(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(c) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
* * *
(5) However, any party may use the deposition of an expert witness for any purpose upon notice to all counsel of record, any one of whom shall have the right within ten days to object to the deposition, thereby requiring the live testimony of an expert. The objecting counsel of record shall pay in advance the fee, reasonable expenses, and actual costs of such expert witness associated with such live testimony... .However, the court may permit the use of the expert’s deposition, notwithstanding the objection of counsel to the use of that deposition, if the court finds that, under the circumstances, justice so requires.

Moreover, “it is well established that the trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion.” Boutte v. ABC Ins. Companies, 00-0649, p. 8 (La. App. 4 Cir. 2/6/02), 811 So.2d 30, 35.

Our review of the record reveals no abuse of discretion in the trial court’s ruling to allow the introduction of Dr. Bauer’s deposition as Mr. Kaptein, and his counsel, received notice of the perpetuation deposition, they could have attended | lfithe perpetuation deposition to cross-examine Dr. Bauer, and/or they could have timely objected to the use of her deposition. Furthermore, assuming arguendo that the trial court erred in allowing the introduction of Dr. Bauer’s deposition, we find that it was harmless error as there has been no showing that Mr. Kaptein was prejudiced by the inclusion of this evidence.

We also find no merit in Mr. Kaptein’s argument that Dr. Bauer’s deposition was not properly perpetuated for trial under La. C.C.P. art. 1429. As stated in Gaines v. Bruscato, “[a] petition for pre-litigation preservation of testimony under La. C.C.P. art. 1429 is an extraordinary discovery method to be used where resort to normal discovery is made impossible by the absence of pending litigation,” 30,340 (La. App. 2 Cir. 4/8/98), 712 So.2d 552, 556, citing Marine Shale Processors Inc. v. State, Through Department of Health and Hospitals, 572 So.2d 280 (La. App. 1st Cir. 1990). Because La. C.C.P. art 1429 applies to pre-litigation preservation of testimony, we do not find it applicable to this case where litigation was ongoing.

For these reasons, we hereby reverse that part of the judgment suspending Face Time visitation and affirm the trial court in all other respects.

AFFIRMED IN PART; REVERSED IN PART

      . In this opinion, the initials, rather than the full name, of the minor child are used to protect and maintain the privacy of the minor child involved in this proceeding. See Uniform Rules, Courts of Appeal, Rule 5-1 and Rule 5-2.

      . Although Mr. Kaptein filed an appeal from the January 26, 2016 ruling, this Court dismissed the appeal on January 6, 2017, finding that the order was interlocutory.

      . La. C.E art. 804 addresses hearsay exceptions when the declarant is unavailable, and states as follows, in pertinent part:
      A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is "unavailable as a witness” when the declar-ant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
      (1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement;
      (2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so;
      (3) Testifies to a lack of memory of the subject matter of his statement;
      (4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness, infirmity, or other sufficient cause; or
      (5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrong-doing of the proponent of his statement for the purpose of preventing the witness from attending- or testifying. -


source: Caselaw Access Project

author: Judge Madeleine M. Landrieu LOVE, J., LOBRANO, J.,

license: Public Domain

text:
    Jamus JACOBS v. THE OATH FOR LOUISIANA, INC., et al
    NO. 2016-CA-1060
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 22, 2017
    Rehearing Denied July 27, 2017

      Dwan S. Hilferty, 701-Papworth Avenue, Suite 208A, Metairie, LA 70005, COUNSEL FOR PLAINTIFF/APPELLANT
    • Richard E. King, Renee S. Melchiode, MELCHIODE MARKS KING, LLC, 639 Loyola Avenue, Suite 2550, New Orleans, LA 70113, Jeff Landry, ATTORNEY GENERAL, Lance Guest, Shelley Winters, ASSISTANT ATTORNEY GENERALS, LOUISIANA DEPARTMENT OF JUSTICE, LITIGATION DIVISION, 400 Poydras Street, Suite 600, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Terri F. Love,'Jtidge Daniel E, Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins)
   Judge Madeleine M. Landrieu

h Plaintiff, Jamus Jacobs, appeals the district court’s granting of two motions for summary judgment against him, and the trial court’s denial of his motions for new trial as to each ruling. The trial court’s rulings dismissed with prejudice the defamation claims brought by Mr. Jacobs against two separate groups of defendants. For the reasons that follow, we affirm,

FACTS AND PROCEEDINGS BELOW

The plaintiff is a former employee of The Oath for Louisiana, Inc. (the “Oath”), a private insurance company operating in Louisiana. On December 10, 2002, Mr. Jacobs filed suit against the Oath, Venture Health. Partnership Group, Inc. (“VHPG”), The Scheur Management Group, Inc. (“SMG”), Barry S. Scheur, Nancy Belle, the Louisiana Department of Insurance (the “DOI”), James. Robert Wooley (individually and in his capacity as Acting Commissioner, of the Louisiana Department of Insurance), and Amy Whittington. Mr. Scheur, Ms. Belle, and SMG (collectively, the “Scheur defendants”) filed one. of the motions for summary judgment under, consideration here; ,Mr. Wooley, Ms. Whit-tington, and the DOI ^(collectively, the “DOI defendants”) filed the other. The facts underlying Mr. Jacobs’ action are as follows.

Mr. Scheur began operating the Oath through the companies he solely controlled,. SMG and !\TIPG, when the state of Louisiana allowed him to take over Southeast Medical Alliance in 1999. Mr. Jacobs was hired by Mr. Scheur to assume the position of Vice President of Sales and Marketing for the Oath, and’ began working for the company on August 1, 2000. Between late October and early November of 2000, Mr. Jacobs supported the decision of the .Oath’s Chief Financial Officer, who refused to sign the Oath’s third quarter financial report required by the DOI. Mr. Jacobs objected to the report because it included an improper reclassification of certain claims % the Oath, which made a loss of several million dollars appear to be a profit of $500,000.00. As a result of this improper reporting, the Oath appeared to be in compliance with the DOI’s statutory reserve requirements. Later, in December of 2000 and January of 2001, in Reviewing the Oath’s budget, Mr. Jacobs questioned the $325,000 monthly consulting fee the Oath was paying to Mr. Scheur’s company, SMG. Shortly thereafter, Mr. Jacobs was fired, allegedly without being given a reason'1 for his termination. The' termination became effective February 2, 2001.

On October 26, 2001, Mr. Jacobs filed a wrongful termination claim (the “2001 lawsuit”). In addition to alleging that he had been wrongfully terminated, Mr. Jacobs alleged that Mr. Scheur had made improper payments from the Oath to his' children’s trust accounts, that Mr. Scheur was taking excessive consulting fees, that Mr. Scheur had illegally reclassified claims, and that the DOI’s Deputy Commissioner had improperly provided information to the Oath about another | ain sur anee company’s products. The 2001 lawsuit was settled in December of 2001.

On December 10, 2001, before Mr. Scheur had paid Mr. Jacobs the final installment of the money due to him under the settlement agreement, an article was published in the New Orleans City Business titled “State Launches Investigation Based on Suit Against Oath.” The article focused on allegations made by Mr. Jacobs in the 2001 lawsuit. The article contained quotes from Mr. Scheur and Mr. Wooley in response to those allegations. In pertinent part, the article read:

Scheur says the allegations are “beyond absurdity.” “This was a disgruntled employee who was a former senior executive for one of our competitors” Scheur says. “The lawsuit has been settled and withdrawn. I vehemently deny all of the allegations.”

The reporter also noted that Mr. Scheur had refused to provide the financial terms of the settlement with Mr. Jacobs. The article also contained statements made by Mr. Scheur concerning the DOI’s investigation. Mr. Scheur was quoted as saying that he “welcomes the investigation” and also: “I have a great relationship with the Department of Insurance. I know that I am going to be vindicated.” Mr. Scheur also stated, regarding the Oath’s finances, “I’ve never tried to hide when we have had financial difficulties. When we have had losses, we have reported losses. I wouldn’t even know how to change the numbers.”

Mr. Wooley, too, was quoted in the City Business article. As to Mr. Wooley, the article read:

Acting Louisiana Insurance Commissioner Robert Wooley says he opened an investigation two weeks ago into the accusations in the lawsuit. Nevertheless, he says the motive behind the allegations makes him “a little leery” of them. “There was a lot of stuff in the lawsuit that seems intended to get publicity so they could try to get á settlement,” Wooley says.

DThree days later, on December 13, 2001, the Baton Rouge Advocate published an article entitled “Insurance chief eyes The Oath Operations.” The article restated many of the allegations raised by Jacobs in his 2001 lawsuit. In responding to . these allegations, Mr. Scheur was quoted in the article as stating:

I welcome any review that the DOI believes is necessary. The lawsuit is frivolous, baseless, and absurd. The allegations have been withdrawn by the party filing them.

Ms. Whittington, acting as a spokesperson for the DOI, was also quoted in the Advocate article. That portion of the Advocate article read:

Acting Insurance Commissioner J. Robert Wooley confirmed through a spokeswoman [Wooley] Tuesday that he is “looking into” The Oath’s financial reports filed in the third quarter of 2000 after accusations of accounting irregularities were leveled in a wrongful termination lawsuit filed by the company’s former marketing director.. .But Woo-ley’s action was not an investigation, the spokeswoman said.... “A person at the Department of Insurance has been given the task of looking at the allegations,” Amy Whittington said. “This is not a big thing. It’s not. a top priority for the Department of Insurance.” Whittington said Wooley took action because, he thought it was the “responsible thing to do” since the allegations were made in a lawsuit... .But the review was not a high priority since the allegations were made by “a disgruntled employee,” she said.

In 2002, following the publication of these articles, Mr. Jacobs filed the defamation lawsuit that is the subject of the instant appeal. The matter was stayed by the district court for approximately ten years (from March 11, 2003, until April 2, 2013) while the Oath and VHPG completed liquidation.

On March 4, 2015, the Scheur defendants filed a motion for summary judgment and on September 22, 2015, the DOI defendants filed a motion for summary judgment, both motions asserting that Mr. Jacobs, as a matter of law, Rcould not prove his defamation claims. The motions were heard by the district court on January 8, 2016. The court issued written judgment granting both motions on February 26, 2016. Mr. Jacobs filed motions for new trial regarding both grants of summary judgment against him, which were denied by written judgment dated May 19, 2016. This appeal followed.

APPLICABLE LAW

I. Defamation

Freedom of speech is guaranteed in both the United States Constitution and the Louisiana Constitution. La. Const. art. 1, § 7 states:

No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but' is responsible for abuse of that freedom.

To prevent abuse of this freedom, a cause of action for defamation exists.

Defamation involves the invasion of a person’s interest in their reputation and good name. Danna v. Ritz-Carlton Hotel Co., LLC, 2015-0651, 2016 WL 2736162, p. 6 (La. App. 4 Cir. 5/11/16) 213 So.3d 26 A statement is defamatory “if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule.” Mitchell v. Villien, 2008-1470, p. 6 (La. App. 4 Cir. 8/26/09), 19 So.3d 557, 562.

Four elements are necessary to establish claim for defamation: “(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Costello v. Hardy, 2003-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 139 (internal quotations ' omitted). Fault is generally referred to as actual or implied malice. Id.

In Louisiana, defamatory statements are either defamatory per. se or susceptible of a defamatory meaning. Mitchell, 2008-1470 at p. 6, 19 So.3d at 562 (citations omitted). Words that accuse one of a crime, or which by their very nature injure one’s personal or professional reputation, are defamatory per se. Costello, 2003-1146 at pp. 13-14, 864 So.2d at 140. “When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, falsity, malice (or fault) and injury.” Id. at 2003-1146 at p. 12, 864 So.2d at 140.

In Mashburn v. Collin, the Louisiana Supreme Court held that the United States Constitution affords a defense to defamation when the statement at issue is a statement of opinion. 355 So.2d 879, 886-87 (La.1977). Because falsity is absolutely necessary for a defamation claim, a purely subjective statement cannot be true or false. Cooksey v. Stewart, 41,336, p. 7 (La. App. 2 Cir. 8/23/06), 938 So.2d 1206, 1211-12 (citations omitted). However, a statement of opinion can give rise to a defamation action if the opinion statement implies the existence of facts that are defamatory and false. Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737 So.2d 706, 717 (citations omitted).

II. Summary Judgment Standard of Review

In 2016, the. .Louisiana legislature amended La. C.C.P. art., 966, which sets forth the requirements for summary judgment motions. See 2016 Louisiana House Bill No. 696, Louisiana Forty-First Regular Session. However, the Scheur |7defendants and the DOI defendants filed their motions for summary judgment in 2016. As a result, the version of La. C.C.P. art. 966 effective in 2016 applies to their motions.

The summary judgment procedure is favored in Louisiana. La. C.C.P. art. 966(A)(2)(2015). In a defamation case, appellate courts review a grant of a motion for summary judgment de novo using the same criteria district courts consider when determining if summary judgment is proper. Kennedy v. Sheriff of E. Baton Rouge, 2005-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686 (citations omitted). The motion should be granted if “the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for the purposes of the motion for summary judgment, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2)(2015). A genuine issue is a “triable issue,” on which reásonable persons could disagree. Champagne v. Ward, 2003-3211, p. 5 (La. 1/19/05), 893 So.2d 773, 777. A material fact is a fact, the existence or non-existence of which may be essential to plaintiffs cause of action. Id. Regarding the burden of proof on summary judgment, La. C.C.P. art. 966(C)(2)(2015) states:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court .on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

|sThe question of whether or hot a statement is capable of a defamatory meaning is a question of law for the court. Heine v. Reed, 2009-0869, p. 6 (La. App. 4 Cir. 12/16/09), 28 So.3d 529, 534 (citations omitted). “The question is answered by determining whether a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense.” Costello, 2003-1146 at pp. 13, 864 So.2d at 140 (citations omitted). If the statements are not capable of a defamatory meaning, the plaintiffs claim is not actionable. Heine, 2009-0869 at p. 6, 28 So.3d at 534. If the statements are susceptible of a defamatory meaning, the actual recipient’s perception of the communication as defamatory becomes a factual issue for the jury. Id.; see also Kosmitis v. Bailey, 28,585, p. 3 (La. App. 2 Cir. 12/20/96), 685 So.2d 1177, 1180.

DISCUSSION

As to both motions, Mr, Jacobs argues that the district court erred by-considering on summary judgment whether the defendants’ statements were actually defamatory, which is an issue of fact, rather than whether the statements were “capable of a defamatory meaning” as a matter of law. See Heine, 2009-0869 at p. 6, 28 So.3d at 534 (citations omitted). The district court did not issue written reasons for judgment. In making his argument that the district court applied the wrong standard, Mr. Jacobs relies upon comments made by the trial court at the hearing, As to the Scheur defendants’ motion, the district court stated, in pertinent part:

“The true [sic] or falsity of the allegations is not dispositive of the issue. Even if the statements were false, the issue is are they defamation. And that’s what my decision is going to turn on.”

As to the DOI defendants’ motion, the district court stated:

^Unsurprisingly, I am going to grant the motion for summary judgment. I sincerely don’t find those words defamatory.

We do not agree that' these comments by the trial court conclusively establish that the court failed to consider whether the defendants’ statements were’ “capable of a defamatory meaning.” However, whether the trial court employed the correct standard is not dispositive. We review the granting of summary judgment de novo. Therefore, we must decide whether the statements in question are capable of a defamatory meaning. We conclude that they are not.

The statements made by Mr. Scheur were opinions made in the context of his defense of the lawsuit Mr. Jacobs had filed against him. Mr. Scheur characterized the allegations made in the suit as “beyond absurdity;” called the lawsuit “frivolous, baseless and absurd;” said he “vehemently denied” the allegations; and described Mr. Jacobs as a “disgruntled employee.” We find that these statements would be clearly understood by an ordinary person as expressing the opinions of Mr. Scheur. “[T]he crucial difference between statement of fact and opinion depends upon whether ordinary .persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact.” Mashburn v. Collin, 355 So.2d at 885 (La. 1977).

Moreover, these statements made by Mr. Scheur to the press are of the type commonly made in the context of litigation between - parties on- opposite sides of a controversy. “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 v. Tucker, 737 So.2d at 718. Under these circumstances, we find the statements made by Mr. Scheur are not susceptible of a defamatory meaning.

Similarly, the statements made by the DOI defendants are merely expressions of opinion. Mr. Wooley’s statement speculated as to what had been Mr. Jacobs’ motive for making the allegations in his lawsuit against Mr. Scheur and the Oath. He said that the allegations in the lawsuit “seem[ed] intended to get publicity so they could try to get a settlement.” This statement is clearly recognizable by an ordinary person as expressing an opinion. Ms. Whittington indicated that the DOI’s investigation of the matter “was not a high priority since the allegations were made by a disgruntled employee.” We do not find that calling someone a “disgruntled employee” is susceptible of a defamatory meaning. Moreover, the DOI defendants were speaking as representatives of a government agency about information received by that government agency as part of its investigation. Cf. Davis v. Borskey, 92-2339 (La. App. 1 Cir. 8/22/94), 643 So.2d 179, 184 (finding that state investigators subjectively believed in the truth of statements made to them during a state investigation, and thus their report based on those statements was not defamatory). In the context of such an investigation, an ordinary person would not have understood the statements of the agency representatives to be defamatory.

In summary, because we conclude that none of the statements made by any of the defendants are susceptible of a defamatory meaning, as a matter of law, we find that the trial court correctly granted both motions for summary judgment dismissing Mr. Jacobs’ claims against these defendants with prejudice, and correctly denied Mr. Jacobs’ motions for new trial. In light of this disposition, we | ^pretermit consideration of the Scheur defendants’ argument that their statements could not be defamatory because they are privileged.

CONCLUSION

Accordingly, we affirm the trial court’s February 26, 2016 judgment and its May 19, 2016 judgment.

AFFIRMED

LOVE, J., DISSENTS AND ASSIGNS REASONS

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

LOVE, J.,

DISSENTS AND ASSIGNS REASONS.

|iaI respectfully dissent from the majority, in that I find the statements made by both the Scheur defendants and the DOI defendants could be viewed as factual by an ordinary reasonable person. Some statements of opinion can also become defamatory. “[I]f a statement of opinion implies that certain facts exist, then such a statement, even though couched in terms of an opinion, could certainly give rise to a defamation action if the implied factual assertions are defamatory and false.” Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737 So.2d 706, 717. Accordingly, I find that the statements are therefore capable of a defamatory meaning, thereby leaving factual determinations for the factfinder that preclude summary judgment. As such, I would reverse the trial court’s judgments and remand the matter for trial.

LOBRANO, J.,

DISSENTS AND ASSIGNS REASONS.

hi respectfully dissent from the majority opinion. Regarding the statements made by the DOI defendants, I find that they are capable of a defamatory meaning. Further, I find that the circumstances surrounding these statements occasion a qualified privilege, as these statements report on a matter of public concern (“public concern qualified privilege”). Regarding the statements made by the Scheur defendants, I find that these statements are also capable of a defamatory meaning. Moreover, I find that the circumstances surrounding these statements occasion a qualified privilege because the record indicates that they may have been material to the speaker’s interests during litigation (“litigation interest qualified privilege”). Because all of the statements at issue are capable of a defamatory meaning, subject to a qualified privilege, and there exists genuine a issue of material fact as the record fails to establish conclusively that the DOI defendants and Scheur defendants did not abuse their qualified privileges, I would reverse the district court’s judgment granting the defendants’ motions for summary judgment and remand the case for a full trial on the merits.

The majority finds that the statements made by the DOI defendants and the Scheur defendants are statements of opinion rather than statements of fact. As the majority recognizes, it is possible for a statement of opinion to have a defamatory meaning when that opinion statement implies the existence of false and defamatory facts. Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737 So.2d 706, 717 (citations omitted). However, the majority does not address whether the statements at issue imply defamatory facts, finding instead that “[t]he statements made by Mr. Scheur were opinions made in the context of his defense of the lawsuit Mr. Jacobs had filed against him” and “[sjimilarly, the statements made by the DOI defendants are merely expressions of opinion.” Thus, the majority concludes, the statements are incapable of a defamatory meaning. I disagree. I find that the statements at issue are capable of implying, to a reasonable listener in the context delivered, defamatory facts—that Jacobs filed a lawsuit without proper legal basis; propagated lies within that lawsuit, and did so as a result of being a “disgruntled employee.”

The majority improperly concludes that “these statements would be clearly understood by an ordinary person as expressing the opinions of Mr. Scheur.” I find the opposite to be true and disagree with the majority’s view as to how a reasonable person understands statements made with respect to a pending judicial proceeding. The fact that these statements were made during litigation does not diminish their capacity to have a defamatory meaning. See Johnson v. Camanga, 2002-1198, p. 10 (La. App. 5 Cir. 4/29/03), 845 So.2d 1140, 1147 (finding that a party defamed in legal pleadings may recover damages for defamation). In fact, I opine that such statements increase their capacity to have a defamatory meaning as a reasonable person would view statements made during litigation—wherein parties can be sanctioned for propagating falsehoods and taking action for the sole purpose of harassment—as more likely to be truthful and factual. A reasonable person would conclude that the statements by the defendants were not wholly dependent on the defendants’ subjective viewpoint but were made for the purpose of explicitly contradicting the factual. allegations in the lawsuit. To hold otherwise | ¿would implicitly acknowledge that the public no longer believes in the solemn obligation of litigants to use the courts to seek justice and truth.

However, all of the statements at issue are subject to some type of qualified privilege. Qualified privilege “balances the freedom of expression against the right to defend against defamation.” Wood v. Del Giorno, 2006-1612, p. 8 (La. App. 4 Cir. 12/19/07), 974 So.2d 95, 100. Determining whether a conditional or qualified privilege exists requires a two-step analysis. First, courts determine .whether the circumstances surrounding a communication occasion a conditional or qualified privilege. Smith v. Our Lady of the Lake Hospital Inc., 93-2512, p. 18 (La. 7/5/94), 639 So.2d 730, 735. If so, it must be decided whether the privilege was abused. Id, Abuse of a conditional or qualified privilege is measured by “knowledge of falsity or reckless disregard for truth.” Hornot v. Cardenas, 2006-1341, p. 2 (La. App. 4 Cir. 10/3/07), 968 So.2d 789, 803. “While the first step is generally determined by the court as a matter of law, the second step of determining abuse of a conditional privilege or malice is generally a fact question for the jury unless only one conclusion can be drawn from the evidence.” Kennedy v. Sheriff of E. Baton Rouge, 2005-1418, p. 18 (La. 7/10/06), 935 So.2d 669, 682 (citations omitted).

The Louisiana Supreme Court recognizes that spéech on matters of public concern receives enhanced constitutional protection, Romero v. Thomson Newspapers (Wisconsin), Inc., 94-1105, p. 6 (La.1/17/95), 648 So.2d 866, 869. Accordingly, Louisiana courts recognize a public concern qualified privilege when the speaker of defamatory material is reporting on a matter of public concern. See Trentecosta v. Beck, 96-2388, p. 19 (La. 10/21/97), 703 So.2d 552, 563. This privilege allows for “fair comment on public affairs.” Id. The United States Supreme Court defines matters of “public concern” as speech “relating to any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). The statements Lmade by the DOI defendants, were reports on actions taken by a government agency, DOI. Because the acts of a government agency are necessarily of concern to the community, these statements address a matter of public concern, and are subject to public concern qualified privilege. Trentecosta, 96-2388 at p. 19, 703 So.2d at 563 (stating that qualified privilege has been extended to include “a reporting of governmental proceedings and activities”).

Louisiana courts also recognize a litigation interest qualified privilege that protects parties from defamation liability for statements made ( during' litigation. See, e.g., Lemke v. Keiser & Auzenne, L.L.C., 2005-893, p. 4 (La. App. 3 Cir. 2/1/06), 922 So.2d 690, 692 (citations omitted). “[Wlhether the ’qualified privilege rule will apply to an individual’s statements made during litigation hinges on whether the alleged defamatory statements are material to the ongoing litigation....” Id.; see also Sullivan v. Malta Park, 2014-0823, p. 15 (La. App. 4 Cir. 12/10/14), 156 So.3d 1200, 1209 (finding that, an attorney’s defamatory statements that were not material to the ongoing litigation were not protected by litigation interest qualified privilege). Considering the summary judgment record before us, which indicates that Scheur was directly confronted by the press regarding allegations in a pending lawsuit against him, and Scheur has an -interest in defending himself during pending litigation, the Scheur defendants’ statements potentially fall under the litigation interest qualified privilege. This is true despite | ¿the fact that the Scheur defendants did not make their statements during a formal judicial proceeding. See Hakim v. O’Donnell, 49,-140, p. 12 (La. App. 2 Cir. 6/25/14), 144 So.3d 1179, 1187-88 (stating that there “are a variety of situations in which the interest that an individual is seeking to vindicate or to further is regarded as sufficiently important to justify some latitude for making mistakes so that the publication of defamatory statements is deemed to be conditionally or qualifiedly privileged”) (citations omitted).

The district court’s judgment granting the motions for summary judgment filed by the DOI defendants and the Scheur defendants is in error because thé record before this Court does not clearly establish that the DOI defendants and Scheur defendants did not abuse their respective qualified privileges. Determining whether a qualified privilege was abused requires an analysis of whether the privileged party acted with malice or with a lack of good faith. Nolan v. Jefferson Par. Hosp. Serv. Dist. No. 2, 2011-291, p. 6 (La. App. 5 Cir. 3/13/12), 90 So.3d 1178, 1182, “To establish reckless disregard of the truth, a plaintiff must prove that the publication was deliberately falsified, published despite the defendant’s awareness of probable falsity, or the defendant in fact entertained serious doubts as to the truth of his publication.” Jalou II, Inc. v. Liner, 2010-0048, p. 22 (La. App. 1 Cir. 6/16/10), 43 So.3d 1023, 1037. Even if one construes the statements only as opinions, it must be determined whether the statements were made with actual malice. See Fitzgerald, 98-2313, 737 So.2d at 717 (finding that pure statements of opinion can be the basis of defamation claims where they imply defamatory facts and .are. made, with actual malice). As stated supra, this second step in the privilege analysis is a fact question left to the trier of fact unless only one conclusion , can be drawn from the: evidence, Id.

' The evidence before this Court fails to establish conclusively that the DOI. defendants and Scheur defendants acted in good faith and without malice, and there exists genuine issues, of material fact as to this issue. The facts that Scheur was convicted of crimes regarding his management of the Oath and that the Oath, which was overseen by DOI, was ultimately liquidated call into question what the speakers of the statements knew at the time they made their statements, and whether they made those statements out of malice towards Jacobs.

Moreover, the majority’s decision to avoid addressing abuse of privilege by determining instead that these statements are not capable of a defamatory meaning, allows litigants carte blanche to defame opposing litigants with absolute protection from defamation liability. This narrow interpretation of what statements are “capable of a defamatory meaning,” effectively expands the amount of communications excepted from defamation liability without the balance afforded by an abuse of privilege analysis. This is uniquely harmful when one considers the | ¿effects of social media, which allows publishers to disseminate false stories to mass audiences instantaneously.

Because the circumstances surrounding the statements at issue occasion a qualified privilege and more than one conclusion can be drawn from the evidence regarding abuse of the privilege, summary judgment is not the appropriate remedy for Jacobs’s claims. See Kennedy, 2005-1418, p. 18, 935 So.2d at 682. Accordingly, I would reverse the district court’s judgment granting summary judgment in favor of the DOI defendants and the Scheur defendants and remand the case for a full trial on the merits.

      . Several other parties were named defendants that are not relevant- to this appeal.

      . During the pendency of the stay, Mr. Scheur was convicted in federal court of several counts of mail fraud and wire fraud committed while he served as Chief Executive Officer of the Oath.

      . This was the second motion for summary judgment filed by the DOI defendants. Their prior motion for summary judgment, filed on March 29, 2014, was denied.

      . Mr. Jacobs does not argue that the statements at issue are defamatory per se.

      . The amendments to the article are not pertinent to this appeal.

      . See also Stephen J. Mattingly, Drawing A Dangerous Line: Why the Public-Concern Test in the Constitutional Law of Defamation Is Harmful to the First Amendment, and What Courts Should Do About It, 47 U. Louisville L. Rev. 739, 739 (2009) (arguing that the public concern standard should be applied broadly due to the inherent dangers in government itself deciding what speech is relevant to the public's concerns).

      . In analyzing whether statements are material to the litigation, Louisiana courts consider relevance and whether there is a "reasonable basis” for the statements in question. See, e.g., Freeman v. Cooper, 414 So.2d 355, 359 (La. 1982); Miskell v. Ciervo, 557 So.2d 274, 275 (La.App. 4th Cir.1990); Sullivan, 2014-0823 at p. 15; 156 So.3d at 1209 (finding that qualified privilege applies for statements made during litigation when the statements are made without malice, with "probable cause,” and are material to the litigation). The “reasonable basis” analysis -asks whether the speaker had- reason to .believe the allegedly defamatory statement. See Miskell, 557 So.2d at 275 (stating that litigation privilege does not allow “free rein to make outlandish and unwarranted statements). The reasonable basis requirement makes defamation cases like this one, where issues of knowledge and motivation remain outstanding, uniquely difficult to resolve on summary judgment. Moreover, if the trier of fact determines that the statements were a personal attack on a litigant and were not for the purpose of securing a proper litigation advantage, then such a finding of fact could result in the conclusion that the .statements were not material to the litigation.

      . See also Louis Edward Layrisson, III, Kennedy v. Sheriff of East Baton Rouge: A Hollow Victory for Louisiana Defamation Plaintiffs?, 68 La. L. Rev. 299, 305 (2007) (stating, “[qjualified privileges are not restricted to specific circumstances, but depend upon whether there is a justification to prótect the interests of the communicator or the public”) (citations omitted).

      . Some of the statements, such as "[tjhe allegations have been withdrawn by the party filing them” cannot reasonably be construed as statements of opinion. See Mashburn v. Collin, 355 So.2d 879, 885 (La. 1977) (finding that the difference between a statement of fact and a statement of opinion depends oh whether an ordinary listener would understand the statement as conveying an existing fact or expressing the speaker’s opinion).

      . Not all states require truth or even a reasonable basis for believing statements in order for litigation privilege to apply, at least to attorneys. See Church Mut. Ins. Co. v. All. Adjustment Grp., 102 F.Supp.3d 719, 731 (E.D. Pa. 2015) (finding that attorneys who made allegedly false and fraudulent statements in litigation were absolutely immune from defamation liability under Pennsylvania’s absolute litigation privilege). However, Louisiana does not provide an absolute privilege for litigants as it does for judges. See La. R.S. 14:50.

      . See David O. Klein & Joshua R. Wueller, Fake News: A Legal Perspective, 20 No. 10 J. Internet L. 1, 10 (2017).


author: Judge Roland L. Belsome

text:
    Mario COLE v. DEPARTMENT OF POLICE
    NO. 2016-CA-1075
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 2017

      Donovan A. Livaccari, LIVACCARI VILLARRUBIA LEMMON, LLC, 101 West Robert E. Lee Blvd., Suite 402, New Orleans, LA 70124, .COUNSEL FOR PLAINTIFF/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins)
   Judge Roland L. Belsome

11 Appellant, Mario Cole, appeals the New Orleans Civil Service Commission’s (“CSC”) decision to uphold his termination by the New Orleans Police Department (“NOPD”). Mr. 'Cole was terminated from his position as a police officer with the NOPD after he tested positive for morphine during a random drug test. For the reasons that follow, the CSC’s judgment is affirmed.

Statement of the Case

On the morning of January 8, 2013, Mr. Cole reported into work as a Police Officer with- the NOPD. He was informed that he had been selected for a random drug screening, which he failed when he tested positive for morphine.

Mr. Cole was placed on emergency suspension and the NOPD opened an internal investigation. Sergeant Lesia Latham Mims, who was assigned to conduct the investigation, interviewed both Cole. and his fiancée, Ms. Ashley Franks^ Mr. Cole told her that he injured his shoulder while lifting weights on January 7, 2013, and that when he told his fiancée, about the injury, she gave him a small, white' pill to take to relieve the pain. He claiméd that he believed the pill was simply ibuprofen or another over-the-counter pain reliever, and only learned it was morphine after he failed the drug test.

IsSergeant Mims submitted her report, and a pre-disciplinary hearing was scheduled. Deputy Superintendent Albert presided over the hearing and recommended that NOPD terminate Mr. Cole’s employment for violation of NOPD Rule 3, ¶7, Use of Drugs/Substance Abuse Testing. Superintendent Roñal Serpas concurred with the disciplinary recommendation, and Mr. Cole was issued a letter notifying him that he was terminated effective July 9, 2013.

Mr. Cole filed an appeal with the CSC, which was denied. This-appeal, followed.

Assignments of Error

On appeal, Mr. Cole argues that the CSC’s decision was arbitrary and capricious and an abuse of discretion in the following three ways: 1) by finding that Mr. Cole was under the influence of morphine when he reported to work on January 8, 2013; 2) by finding that there was a real and substantial relationship between the violation and an adverse impact to the operation of public service; and 3) by finding that ‘ termination was commensurate with the offense.

Law and Discussion

Employees in the classified service may only be disciplined for ’sufficient cause. In an appeal before the CSC, the appointing authority must prove by. a preponderance of the evidence 1) the occurrence of the complained of activity, and 2) the conduct bore a real and substantial relationship to the 'efficient operation of the appointing authority. If the CSC finds the appointing authority has met its burden of proof and had sufficient cause to issue discipline, it must then determine | aif the discipline was “commensurate with the offense.” Therefore, the analysis has three steps, with the appointing authority bearing the burden of pr.oof at each.

The CSC’s decision “is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review.” A reviewing court should not alter the CSC’s determinations. regarding good cause for discipline and the appropriateness of the disciplinary action unless the decision was “arbitrary, capricious, or characterized by an .abuse of discretion.” The CSC’s decision is “arbitrary and capricious” if there is no rational basis for the action taken.

On appeal, Mr. Cole argues that the CSC erred in finding that the NOPD met its burden of proving that he was under the influence of morphine on the date he failed the drug screening and that his actions impaired the efficient operation of the public service. He claims that he did not violate NOPD Rule 3, ¶ 7, despite the fact that he tested positive for morphine while on the job, because the morphine in his system did not actually impair him.

NOPD Rule 3, ¶ 7, Use of Drugs/Substance Abuse Testing states:

Employees shall be guided by the City’s substance abuse policy , as defined under Rule V, Section 9 of the Civil Service Rules and C.A.O. Policy Memorandum # 89 (Revised) dated 9/99. An employee shall not report to duty under the influence of any drug, medication, or other substance impairing his/her normal sensory and/or motor body functions. (emphasis added)

[4The record in this case supports Mr. Cole’s termination. At the hearing before the CSC, Mr. Cole testified that he irritated his left shoulder working out the evening of January 7, 2013, at the sheriffs office gym in New Orleans. He stated that he did not believe he had necessarily -injured his shoulder so he saw no need to go to a doctor, but that when he was unable to sleep that night because of the pain he took a pill offered to him by his fiancée. He stated that he believed the pill was an over-the-counter pain reliever. He testified that he was aware of Ms. Franks’s morphine prescription, but that she had never offered him one of her pills prior to that night. He admitted to taking the morphine pill and being aware of NOPD policy that prohibits taking prescription medication prescribed to another person,

NOPD presented an expert witness in toxicology, Susan Bybee, who testified that Mr. Cole’s drug screening results showed that he tested positive for morphine above the cutoff established by the NOPD. In fact, Mr. Cole tested over fifty percent higher than the permitted cutoff. Ms. Bybee stated that the side effects of morphine include sleepiness and dizziness.

Sergeant' Mims, the Public Integrity Bureau investigator assigned to Mr. Cole’s case, testified regarding her investigation. She stated that Mr. Cole informed her he mistakenly took the morphine pill on the night of January 7, 2013, after his fiancée gave him what he believed to be an ibuprofen to alleviate pain from a workout related injury. She testified that, during the interview, Ms. Franks said that she did not tell Mr. Cole that the pill was from her morphine prescription, |fiand that Mr. Cole did not ask what kind of medication she was giving him. Sergeant Mims testified that NOPD policy prohibits an employee taking prescription medications that are not prescribed to him.

Deputy Superintendent Darryl Albert, who conducted Mr. Cole’s disciplinary hearing, testified that drug violations impact the efficient operation of the NOPD by putting the public at great risk because of the importance of officers being in their “right mind when dealing with the public.” He testified that dismissal was the appropriate penalty because “the City of New Orleans and police department do not tolerate substance abuse” and therefore have a “zero tolerance” policy against officers reporting to work under the influence. He indicated that it was irrelevant that there were no complaints about Mr. Cole’s behavior on the day he failed the drug screening because of the NOPD’s zero tolerance policy. He noted that while the Superintendent has the authority to order rehabilitation or a probationary period rather than termination, ultimately that decision is within the Superintendent’s discretion.

Based on the testimony and the evidence in the record, the CSC made the following findings of fact regarding the occurrence of'the complained of activity: 1) Cole ingested a pill that contained morphine on or about the night of January 7, 2013, 2) he reported to work the next day, 3) during his shift he was instructed to report for a random drug test, 4) the drug test was performed pursuant to the Commission’s guidelines, and 5) the urine specimen produced by Cole on January 8, 2013 contained concentrations of morphine that exceeded the limits established by the City of New Orleans and NOPD. The CSC determined that the NOPD had established by a preponderance of the evidence that Mr. Cole reported to work under the influence of morphine on January 8,2013.

IisAs to the NOPD’s burden of proving that Mr. Cole’s actions impaired the efficient operation of the NOPD, the CSC found that Mr. Cole reported to work under the influence of morphine, but did not notify the NOPD that he had consumed medicine that could render him a risk to the public and/or his coworkers. This, the Commission found, “severely compromise[d] NOPD’s ability to competently and safely serve the public.” Thus, the CSC found that NOPD met its burden of proof regarding this element of the analysis.

These findings of fact concerning the presence of morphine in Mr. Cole’s system and the effect that Mr. Cole’s actions had on the NOPD’s efficient operation are not manifestly erroneous. Considering that it is undisputed that Cole took the morphine on January 7, 2013, and that the side effects of such medication can compromise the ability of a police officer to perform his duties, the CSC was not clearly wrong in finding that the NOPD proved the first and second element of the analysis.

Finally, Cole argues that his termination was not commensurate with the offense because termination, the most severe discipline available, was not appropriate in this situation.

Regarding discipline for a substance abuse violation, CAO Policy Memo 89 indicates that a first offense violation of the substance abuse policy is a terminable offense under a limited set of circumstances, one of those being the use of alcohol or drugs while working. The Policy Memo further provides that off duty conduct should result in termination “if the City believes that this off-duty conduct possibly could involve any of the following: affects such individual’s safe performance of the job; jeopardizes the safety of the other employees, the general public or the City’s property ....”

|7Based on a review of the evidence, we find that termination was commensurate with the offense. The CSC determined that because police officers are in a position to take someone else’s life or liberty, they cannot be under the influence of narcotics while wielding such power. The CSC went on to state that the “NOPD has not only an interest, but a responsibility to monitor and prevent illegal or illicit drug use by Officers.” The CSC noted that it recognized that other forms of discipline were available to the NOPD, but found that termination of an officer for testing positive for morphine during his shift was not arbitrary or capricious. We therefore find that the CSC did not abuse its discretion in upholding Mr. Cole’s termination.

Conclusion

For the reasons set forth above, we affirm the decision of the CSC to deny Mr. Cole’s appeal and uphold his termination by the NOPD.

AFFIRMED

JENKINS, J., CONCURS IN THE RESULT

      . La. Con. Art. X, § 8(A).

      . Gast v. Dep’t of Police, 2013-0781, p. 3 (La. App. 4 Cir. 3/13/14), 137 So.3d 731, 733.

      . Id., 2013-0781, 197 So.3d at 734.

      . Adams v. Dep’t of Police, 2013-0200, p. 5 (La.App. 4 Cir. 12/18/13), 131 So.3d 378, 382, writ granted, 2014-0140 (La. 3/21/14), 135 So.3d 624, quoting Cure v. Dep’t of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094.

      . Cure, 964 So.2d at 1094-95.

      . Id., at 1095.

      . CAO Policy Memorandum # 89, cited in the termination letter to Cole, defines a prohibited substance as including “the presence of any confirmed detectible amount of those substances listed in the following sections in the employee/person while working regardless of when or where the substance cleared their systems.”

      . Rosemary Thomas of Concentra Medical Center testified as to the policies of Concen-tra, the company that conducted Mr. Cole’s drug screening, as well as to the authenticity of Mr, Cole’s drug screening results.

      . The cutoff established by the NOPD is 2,000 nanograms per milliliter. This is the same cutoff established by the Substance Abuse and Mental Health Administration ("SAMHSA”).

      . Mr, Cole’s screening showed that morphine was detected in his system at a level of 3,108 nanograms per milliliter, which is 55.4% above the 2,000 cutoff.

      . See Montegue v. City of New Orleans Fire Dep't, 95-2166, p. 5 (La.App. 4 Cir. 5/29/96), 675 So.2d 810, 813, writ denied, 96-1707 (La. 10/4/96), 679 So.2d 1389).