author: CONERY, Judge.

text:
    STATE of Louisiana v. David Ray NEWSOM
    17-580
    Court of Appeal of Louisiana, Third Circuit.
    September 6, 2017
    Adam P. Johnson, The Johnson Firm, 910 Ford Street, P. O. Box 849, Lake Charles, Louisiana 70602, (337) 433-1414, COUNSEL FOR DEFENDANT/APPLICANT: David Newsom
    Bennett R. LaPoint, Assistant District Attorney, P. O. Box 1388, Jennings, Louisiana 70546, (337) 824-1893, COUNSEL FOR RESPONDENT: State of Louisiana
    Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.
   CONERY, Judge.

This is a pre-trial writ filed by the State of Louisiana. Trial is currently scheduled for September 14, 2017.

Defendant was arraigned on August 8, 2016, for operating a vehicle while intoxicated, a violation of La.R.S. 14:98. On November 17, 2016, Defendant filed a "Motion to Suppress Evidence," a "Supplemental Motion to Suppress Evidence with Incorporated Memorandum," and a "Notice of Objection to the Introduction of the State's Crime Lab Certificates into Evidence as Prima Facie Proof of the Assertions Contained Therein." Hearings were held on May 11 and 15, 2017, to address all the issues raised in the above three pleadings. The trial court granted Defendant's motions to suppress the blood/alcohol results and the statements made by defendant to the investigating Louisiana state troopers.

The State of Louisiana now seeks review of the trial court's rulings. The issues raised are whether Defendant's verbal consent for the blood/alcohol test was valid and whether the statements were freely and voluntarily made. For the following reasons, we find that the trial court erred when it granted Defendant's motions to suppress the evidence. Accordingly, this court grants and makes peremptory the State's writ, vacates the trial court's ruling, and remands the matter for further proceedings.

FACTS

On May 6, 2016, Defendant was involved in a single vehicle accident in Jefferson Davis Parish. He was injured and subsequently taken by a medical helicopter to a hospital in Lafayette. At the hospital, Defendant gave statements to Louisiana State Trooper John Sims. Defendant also consented to a blood/alcohol test that showed he was over the legal limit. Defendant was arrested and charged with operating a vehicle while intoxicated.

EVIDENCE ADDUCED AT MAY 11, 2017 MOTION HEARING

John Sims and Scott O'Connell, troopers with the Louisiana State Police, testified at the hearing, and several documents were introduced by the State and Defendant, which are attached as exhibits to the State's writ application:

State's Exhibit 1: Arrestee's Rights Form, Rights Relating to Chemical Test for Intoxication.
State's Exhibit 2: Notice to Withdraw Blood for Chemical Test for Intoxication.
State's Exhibit 3 and Defense's Exhibit 3: "Optional Test."
State's Exhibit 4: "Initial Observation" and the traffic citation.
State's Exhibits 5 and 6: Blood/alcohol test kit containing "Consent Form."
Defense's Exhibit 1: "Certificate of Arrest."
Defense's Exhibit 2: "Certificate of Authenticity" and the ambulance service records.

Trooper Sims testified that he was requested by Trooper O'Connell, who remained at the scene of the accident, to go to the hospital and interview Defendant and to begin the necessary paper work. Trooper Sims stated that when he first encountered Defendant, he could smell the odor of alcohol. Defendant's eyes were bloodshot and his speech was slurred. Trooper Sims determined there was probable cause to arrest Defendant for operating a vehicle while intoxicated. The trooper testified that Defendant was conscious and coherent. Trooper Sims stated he gave Defendant the Miranda warnings prior to questioning him. The trooper contended that Defendant gave him verbal consent to do a blood/alcohol test and that Defendant acknowledged the Miranda rights he was giving up and voluntarily admitted he had three glasses of crown and coke prior to driving. The trooper stated he would not have had blood drawn if Defendant had not consented but would have obtained a warrant.

Trooper Sims admitted that when he arrived at the hospital he was not advised as to the extent of Defendant's injuries. He agreed, however, that Defendant had significant injuries. He described the observable injures being to Defendant's head, face, neck, and back. He was not aware of any medications the hospital might have administered to Defendant. Although the trooper testified that he wrote in Defendant's answers to the questions on State's Exhibit 3, "Optional Test," he did not remember if he had made the note on the form that stated Defendant was incoherent. Later, however, the trooper explained that when he wrote "incoherent," he meant that while Defendant could understand the questions, he had difficulty understanding what Defendant was saying. Trooper Sims agreed that on any of the forms that required Defendant's signature, Defendant did not sign the forms. The trooper contended that although Defendant was unable to sign the forms, he gave verbal consent. When asked why Defendant could not sign the forms, the trooper responded only that Defendant was injured.

Senior Trooper O'Connell arrived at the hospital later in the morning. He testified that he spoke with Defendant and asked him to relate what occurred that caused the accident. The trooper stated that Defendant said he was driving his passenger home from a party. Trooper O'Connell said that Defendant was conscious. He noted that he could smell alcohol and that Defendant's speech was slurred, but the trooper was not sure if Defendant's bloodshot eyes were caused by alcohol or by the accident. The trooper testified that at the time he spoke with Defendant he was unaware that Defendant's face, jaw, and neck had multiple fractures or of what medication may have been given to Defendant at the hospital.

The State attempted to call the nurse who drew Defendant's blood for the blood/alcohol test. The State advised the trial court it desired to show that a qualified person had drawn Defendant's blood as required by La.R.S. 32:664. However, the trial court ruled that the nurse's testimony regarding her qualifications were irrelevant to a motion to suppress. The State and Defendant agreed.

Finally, Defendant submitted the EMT's report and noted for the trial court's consideration where on the EMT's record the notation was made that Defendant suffered "Altered Level of Consciousness" and that he was not able to sign the consent form for treatment because of "[n]eurological condition limits ability to sign."

On May 11, 2017, at the hearing, the trial court granted Defendant's motions to suppress the blood/alcohol results, as follows:

I mean, the officers were-were very honest and they stated, you know-O'Connell didn't-you know, he was very honest and so was Officer Sims. They were very honest in their statements, and Officer Sims said I don't remember what happened.
But concerns the Court-and the officers were not aware of the-of the level of unconsciousness of the defendant at the time of the accident, okay, and that because of neurological reasons he couldn't sign, that he had injuries to the mouth and face which Officer Sims noted. Neither officer knew what medication the defendant was on at the time of the voluntary consent form. But those are all questions to me, and based on that, I-I've got to say the consent form is not free and voluntary. This should have been a warrant from-the judge would have signed a warrant and got the permission to draw the blood, okay, under this type of an injury, all right.

On May 15, 2017, the trial court reconvened the suppression hearing for the purpose of granting Defendant's motion to suppress the statements he made for the above stated reasons and further stated that Defendant "was mirandized prior to giving his consent which I said was not free and voluntary. Therefore, I cannot find that he fully understood the Miranda right and that [sic] he was waiving."

ANALYSIS

The issues before this court are whether Defendant fully understood his Miranda rights and therefore knowingly and intelligently waived his rights, and whether his consent for a blood/alcohol test was freely and voluntarily given. In the State's Brief in support of the writ, the State argues that the trial court erred when it granted Defendant's motions to suppress the results of the blood/alcohol test and the statements made to the two troopers as follows:

[T]he testimonial evidence of the State Troopers prove that the defendant Newson was conscious, coherent, and able to understand waiving his rights, and give intelligent answers to all of the questions posed to him. The only evidence introduced by the defense to refute their conclusion on consent and waiver were the Acadian Ambulance records indicating that the defendant was in an "altered level of consciousness" and "alert but confused" at 01:27 hours, approximately 3 hours before he gave Trooper Sims consent to draw blood at 03:41 hours. There was no evidence introduced to prove that the defendant was unconscious or unable to give consent at the time he was met by the troopers at the hospital.

(Emphasis added.)

In his motion to suppress the blood/alcohol results, Defendant argued that the Trooper should have applied for a warrant to conduct the blood/alcohol test because of Defendant's diminished mental capacity caused by his injuries. Defendant further argued that for the same reason he did not knowingly and intelligently waive his privilege against self-incrimination. Accordingly, the statements Defendant made and the blood/alcohol test should be suppressed. Defendant repeats those arguments in opposition to the State's writ.

In State v. Thomas, 02-471, p. 3 (La.App. 3 Cir. 10/30/02), 829 So.2d 1137, 1139-40, writ denied , 02-2920 (La. 4/21/03), 841 So.2d 789 (citations omitted), this court discussed the trial court's ruling on a motion to suppress and stated:

Unless the trial court's conclusions are not supported by the evidence or there exists a clear abuse of discretion, an appellate court should not overturn the trial court's ruling. In other words, the appellate court will give the trial court's determination great weight and will not set aside the trial court's ruling unless clearly mandated by a preponderance of the evidence.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. A search made without a warrant is considered unreasonable unless that search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Cavalier, 14-579 (La.App. 4 Cir. 6/19/15), 171 So.3d 1117, writ denied, 15-1374 (La. 9/6/16), 205 So.3d 914. One of the specifically established exceptions to the warrant requirement is a search conducted pursuant to consent. Schneckloth v. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ; State v. Wilson , 467 So.2d 503 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985). Oral consent is valid. State v. Hudnall , 39,723 (La.App. 2 Cir. 5/11/05), 903 So.2d 605. On a motion to suppress, a defendant has the burden of proving the grounds for his motion, "except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant." La.Code Crim.P. art. 703(D).

Louisiana Revised Statutes 32:661 provides in pertinent part:

A. (1) Any person, regardless of age, who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of R.S. 32:662, to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 in his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages or any abused substance of controlled dangerous substance as set forth in R.S. 40:964.
....
C. (1) When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first read to the person a standardized form approved by the Department of Public Safety and Corrections. The department is authorized to use such language in the form as it, in its sole discretion, deems proper, provided that the form does inform the person of the following:
(a) His constitutional rights under Miranda v. Arizona.
(b) That his driving privileges can be suspended for refusing to submit to the chemical test.
(c) That his driving privileges can be suspended if he submits to the chemical test and such test results show a blood alcohol level of 0.08 percent or above or, if he is under the age of twenty-one years, a blood alcohol level of 0.02 percent or above.
(d) That his driving privileges can be suspended if he submits to the chemical test and the test results show a positive reading indicating the presence of any controlled dangerous substance listed in R.S. 40:964.
(e) The name and employing agency of all law enforcement officers involved in the stop, detention, investigation, or arrest of the person.
(f) That refusal to submit to a chemical test after an arrest for an offense of driving while intoxicated if he has refused to submit to such test on two previous and separate occasion of any previous such violation is a crime under the provision of R.S. 14:98.2 and the penalties for such crime are the same as the penalties for first conviction of driving while intoxicated.
(2) In addition, the arresting officer shall, after reading said form, request the arrested person to sign the form. If the person is unable or unwilling to sign, the officer shall certify that the arrestee was advised of the information contained in the form and that the person was unable to sign or refused to sign.

Blood/alcohol test

Defendant argued that the Louisiana implied consent laws, "as it relates specifically to blood draws, has been ruled unconstitutional by the United States Supreme Court," by Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) and Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). The State asserts in brief that the trial court erroneously based its decision on the above two cited United States Supreme Court cases.

In McNeely , the Supreme Court held that the natural metabolization of alcohol in the bloodstream did not present a per se exigency that justified an exception to the Fourth Amendment requirement for a warrantless blood testing. The State is not arguing a "per se exigency" was involved in this case, but rather that the consent defendant gave for the blood drawn was voluntary. The State further argues that Birchfield is inapposite to the current case because in Birchfield the defendant refused to give consent. There were three defendants in Birchfield . One of the defendants, Mr. Beylund, consented to the blood/alcohol test because he was told he did not have the right to refuse and if he did, his license would be suspended and he would be fined in an administrative proceeding. In Birchfield, 136 S.Ct. at 2186, the Supreme Court, while addressing how the "search-incident-to-arrest" doctrine applied to blood tests, stated:

Unlike the other petitioners, Beylund was not prosecuted for refusing a test. He submitted to a blood test after police told him that the law required his submission, and his license was then suspended and he was fined in an administrative proceeding. The North Dakota Supreme Court held that Beylund's consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Because voluntariness of consent to a search must be "determined by the totality of all the circumstances," Schneckloth, supra , at 227, 93 S.Ct. 2041 we leave it to the state court on remand to reevalutate Beylund's consent given the partial inaccuracy of the officer's advisory.

The Supreme Court noted specifically that "[o]ur prior opinions have referred approvingly to the general concept of implied consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply." Id. at 2185. The Supreme Court, however, further stated that "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Id. at 2186.

The form Trooper Sims read to Defendant indicated that he had the right to refuse the test but if he did, he would be fined and his license would be revoked for a year. The form also indicated that a refusal could constitute a crime. If Birchfield is retroactively applicable to Defendant's case, the State suggests that the good faith exception to the exclusionary rule applies, as discussed in depth below. However, while the trial court acknowledged the holding in Birchfield , the trial court did not indicate that it relied on Birchfield and McNeely to support its ruling to exclude the evidence.

In the current case, Defendant's primary argument was that because his injuries resulted in diminished mental capacity, he was not capable of giving consent; thus, the State should have obtained a warrant. The trial court's May 11, 2017, ruling was based on Defendant's alleged inability to consent due to the extent of the injuries as described during the suppression hearing and the fact that the troopers both testified that they did not know what medications, if any, were administered to Defendant at the hospital. The trial court further noted that while Defendant was deemed incapable of signing any of the forms giving consent for the blood/alcohol test or indicating his understanding and acknowledgement of the wavier of his Miranda rights with his signature, there was no explanation of why he was unable to sign the forms. The only explanation pointed out by Defendant was the notation in the EMT's records that Defendant suffered an altered level of consciousness three hours earlier at the scene of the accident and that a neurological condition limited his ability to sign.

While the State had the burden of proving the admissibility of the evidence, Defendant had the burden of proving the grounds for his motion to suppress. We find that Defendant failed to present any evidence that because of his injuries, his consent was not valid or that he suffered any sort of diminished capacity or inability to understand and acknowledge the rights that he was giving up. While Defendant presented the EMT's records, which were observations made at the accident site three hours earlier, there were no medical records presented from the hospital which would have established his mental state upon arrival, the extent of his injuries, or the medications he may have been administered prior to the two troopers interviewing him at the hospital. Defendant even had the opportunity at the hearing to examine the nurse who drew his blood. Instead, Defendant agreed with the trial court that the nurse's testimony would have been irrelevant to the suppression question, even though the nurse's observations about Defendant's mental status and his medications could have been very relevant.

As pointed out by the State, the trial court relied on observations noted in the EMT's report that Defendant was suffering from altered levels of consciousness and was unable to sign a consent form for treatment three hours before the trooper spoke with Defendant at the hospital. In its ruling, the trial court stated that Trooper Sims noted on the optional test form that Defendant was incoherent. Trooper Sims explained what he meant was that it was difficult to understand Defendant. Defendant's "incoherency," his trouble speaking, may have been due to the fact he had suffered fractures of his jaw during the accident, not because he did not understand what was being told to him or asked of him by the troopers.

Defendant's actual answers, as noted by Trooper Sims, were specific. He told Trooper Sims that he had been drinking crown and coke. There was testimony that an opened crown royal bottle was found in the Defendant's truck. He told the trooper that he was at Burton Coliseum and was driving a friend home when the accident occurred. He also told Trooper Sims that he had seen a doctor for a health checkup on the Wednesday before. He even told the trooper the doctor's name. When asked if he had taken any medication in the last twenty-four hours, he answered yes, but there was no indication of what type, how much, or what time the medication was taken.

Trooper O'Connell visited Defendant at the hospital an hour later. He testified Defendant was conscious, and although he was slurring his words, Defendant gave the trooper the same information he gave to Trooper Sims. The trial court discussed the troopers' credibility, calling their testimony "honest," yet the trial court seemed to rely almost entirely on the EMT's observations at the time of the accident and, erroneously, in our view, completely disregarded the testimony of the troopers that defendant gave free and voluntary statements and freely and intelligently consented to the blood draw.

The State points out in brief that the trial court stated the troopers' testimonies were credible and reliable and argues, "A trial court's determination and its conclusions on credibility and weight of testimony relating to voluntariness of the confession are entitled to great weight and will not be overturned unless unsupported by the evidence." State v. Batiste , 06-824, p. 10 (La.App. 5 Cir. 3/13/07), 956 So.2d 626, 634 ; see also State v. Massey , 02-872 (La.App. 5 Cir. 2/11/03), 841 So.2d 862, writ denied , 03-805 (La. 10/17/03), 855 So.2d 758."

Moreover, even were we to find, which we do not, that Defendant's consent was not valid and the trooper should have obtained a warrant prior to the blood draw, the State argues that Trooper Sims acted in good faith and the evidence should not be excluded from trial. In State v. Brock , 47,005, pp. 5-7 (La.App. 2 Cir. 3/7/12), 91 So.3d 1003, 1006-07, writ denied , 12-784 (La. 9/28/12), 98 So.3d 826, the second circuit noted in a similar case:

If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Benjamin, 97-3065 (La. 12/1/98), 722 So.2d 988, citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). This exclusionary rule is designed to safeguard Fourth Amendment rights generally through its deterrent effect. Herring v. United States , 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). However, the fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. The exclusionary rule is not an individual right and applies only where it results in appreciable deterrence. In addition, the benefits of deterrence must outweigh the substantial social cost of letting guilty and possibly dangerous defendants go free. Herring, supra .
The United States Supreme Court has created a good faith exception to the exclusionary rule. In United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the court held that evidence seized in a search pursuant to a warrant, which was invalid for lack of probable cause, need not be excluded at trial if the officers who conducted the search reasonably believed that the warrant was valid. United States v. Leon, supra ; State v. Long, 2003-2592 (La. 9/9/04), 884 So.2d 1176. The court explained that the exclusionary rule "is designed to deter police misconduct rather than to punish the errors of judges and magistrates." Leon, 468 U.S. at 916, 104 S.Ct. at 3417.
In 2009, the United States Supreme Court applied Leon's good faith exception to allow admission of evidence obtained after an arrest made pursuant to a previously recalled warrant. In the Herring case, officers in Coffee County arrested Herring based on an outstanding warrant listed in a neighboring county's database. A search incident to that arrest yielded methamphetamine and a pistol. It was then determined that the arrest warrant had been recalled five months earlier, but that information had not been entered into the database. Herring sought exclusion of the evidence. The court stated that the exclusionary rule serves to deter deliberate, reckless or grossly negligent conduct and found that the conduct of the officers was not so objectively culpable as to require exclusion. The court found that any marginal benefit resulting from the suppression of evidence obtained by officers acting in objectively reasonable reliance on a subsequently recalled warrant did not justify the substantial cost of exclusion. Herring, supra .

The State further argues, in the alternative, that the inevitable discovery doctrine should allow the blood/alcohol test results to be admitted at trial since Trooper Sims testified that if he had not gotten consent, he would have applied for a warrant. A statement by police officers that they will apply for a warrant if refused consent for a search does not necessarily vitiate the voluntariness of the consent. State v. Franklin , 95-1876 (La. 1/14/97), 686 So.2d 38 ; State v. MacDonald , 390 So.2d 1276 (La.1980). The inevitable discovery doctrine is a well-settled judicial doctrine that supplies an exception to the exclusionary rule. State v. Hill , 97-2551 (La. 11/6/98), 725 So.2d 1282. In fact, in this case the trial judge noted in his reasons for ruling: "... the judge would have signed a warrant and got the permission to draw the blood, okay, under this type of injury, all right."

In response to the State's inevitable discovery and good faith alternatives, Defendant incongruously argues that "the State should be prevented from raising new arguments for the first time on appeal." Defendant cites several cases which are not applicable to the instant case. In those cases, motions to suppress were never filed prior to trial, or the alleged inadmissible evidence was given at trial and defendant did not object, thereby waiving the issue on appeal. Defendant is attempting to imply that since the State did not specifically discuss the inevitable discovery doctrine or the good faith exceptions to the exclusionary rule at the suppression hearing, the State should not be allowed to raise those arguments now.

In State v. Guidry , 03-625 (La.App. 5 Cir. 1/27/04), 866 So.2d 944, the trial court granted the defendant's motion to suppress based on a defective warrant. The state filed for supervisory review, and the fifth circuit agreed with the trial court. The state then filed a writ with the supreme court seeking review of the fifth circuit's ruling. The supreme court remanded to the fifth circuit "for written treatment and reconsideration in light of United States v. Leon , [468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ] which generally recognized a 'good faith' exception to precluding suppression." Id. at 945 ; see also State v. Guidry , 03-1944 (La. 11/21/03), 862 So.2d 965.

In this case, considering the testimony of the two troopers and the circumstances as presented at the hearing, this court finds that the State met its burden of proving that the statements to the troopers were freely and voluntarily made and that Defendant's consent to allow the blood/alcohol test was knowingly and voluntarily given. Any marginal benefit resulting from the suppression of evidence obtained by the troopers acting in objectively reasonable reliance on Defendant's verbal consent did not justify the substantial cost of exclusion. The trial court erred when it granted Defendant's motion to suppress the results of the blood/alcohol test.

We further find that Defendant's verbal acknowledgement of his Miranda rights was voluntarily and knowingly given and that his lack of signature due to his injuries did not indicate lack of consent to answer questions. In State v. Johnson , 07-1040 (La.App. 4 Cir. 9/10/08), 993 So.2d 326, writ denied, 08-2649 (La. 6/5/09), 9 So.3d 868, the defendant, who was severely burned when he set his girlfriend on fire, sought to suppress statements because he was so incapacitated by his injuries that he was unable to knowingly and intelligently waive his Miranda rights. While Johnson was on medication for his burns and did sign the waiver of rights form, the fourth circuit noted that "[i]n cases involving allegations of diminished mental capacity, a defendant has the burden of proving the existence of any mental abnormality that might render his confession per se involuntary." Id. at 333.

Finally, we also note that the Trooper Sims was found credible by the trial judge and acted in good faith when he accepted Defendant's verbal consent to the blood/alcohol test and the verbal waiver of his Miranda rights.

CONCLUSION

WRIT GRANTED AND MADE PEREMPTORY : The trial court erred when it granted Defendant's October 17, 2016, motions to suppress the blood/alcohol test results and the statements made by Defendant. The State met its burden of establishing that Defendant freely and voluntarily gave verbal consent to the test and that he knowingly and intelligently waived his Miranda rights. Accordingly, the trial court's ruling is reversed, and the matter is remanded for further proceedings.

Gremillion, J., dissents and assign written reasons.

GREMILLION, J., dissents for the following reasons:

I respectfully disagree with the majority. I find this court's review of the trial court's determinations hinges on the standard of review. As the majority points out, we should not disturb the lower court's findings unless there is a "clear abuse of discretion" because they are entitled to "great weight." State v Thomas , 02-471, p.3 (La.App. 3 Cir. 10/30/02), 829 So.2d 1137, 1139-40, writ denied , 02-2920 (La. 4/21/03), 841 So.2d 789. Here, the trial court relied on evidence that the defendant was injured, medicated, and was suffering from an "altered level of consciousness" at the time he offered consent and was Mirandized. Were I sitting on the trial bench, I may have ruled differently. But, from the appellate bench, I cannot see any clear abuse of discretion. Therefore, I would deny the state's writ.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Mary FISHER, et al. v. The TOWN OF BOYCE, et al.
    17-470
    Court of Appeal of Louisiana, Third Circuit.
    September 6, 2017
    Randall B. Keiser, Jeremy C. Cedars, Keiser Law Firm, P.L.C., P. O. Box 12358, Alexandria, LA 71315, (318) 443-6168, COUNSEL FOR DEFENDANTS/APPLICANTS: Mayor Alma Moore, Town of Boyce
    Bradley C. Myers, Amanda M. Collura-Day, Kean Miller LLP, Post Office Box 3513, Baton Rouge, LA 70821, (225) 387-0999, COUNSEL FOR AMICUS CURIAE LOUISIANA: Municipal Association Louisiana
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   SAUNDERS, Judge.

Defendants-Relators, the Town of Boyce and Mayor Alma Moore, seek supervisory writ from the judgment of the Ninth Judicial District Court, Parish of Rapides, the Honorable Greg Beard, presiding, which granted in part and denied in part Relators' motion for protective order.

This matter arises out of a suit for the alleged improper termination of plaintiffs, Mary Fisher and Robert Hamilton, from their employment with the Town of Boyce, by the unilateral actions of Mayor Moore taken "without obtaining the recommendation or consent of Police Chief Eddie Washington or the action of the Board of Aldermen for the Town of Boyce." Police Chief Washington has since intervened and asserted plaintiffs' rights. In response, Relators filed a motion for summary judgment, asserting plaintiffs could not be improperly terminated, as they had not been properly hired. As part of their opposition thereto, plaintiffs' counsel, Daniel Broussard, obtained and filed the affidavit of Leonard Ray Lacour, a member of the Boyce Town Council. Prior to obtaining the affidavit, the Town Council had met in executive session twice to discuss this litigation, and Relators' counsel had also discussed the matter with Lacour. Relators, therefore, alleged the communication between Lacour and plaintiffs' counsel violated Rule 4.2 of the Louisiana Rules of Professional Conduct (Rule 4.2) because it was made outside the presence and without the consent of defense counsel. The trial court struck the affidavit from the summary judgment proceedings and denied summary judgment, but declined to exclude Lacour's testimony at trial. Relators filed a motion for protective order, requesting the trial court (1) preclude plaintiffs, their attorney, and/or agents from meeting with any town official wherein the subject matter of this litigation is discussed, and (2) exclude Lacour's affidavit and testimony/evidence. See Application, p. 34. Plaintiffs opposed the motion, arguing that Fisher, a "constituent," had a right to talk to Lacour, but did not file their own motion for protective order.

The trial court denied the motion in part "insofar as it seeks to exclude Ray Lacour as a witness" and granted the motion in part, ordering: (1) defense counsel may communicate with Mayor Moore; (2) plaintiffs' counsel may communicate directly with Police Chief Washington, "as he was and, depending upon the ruling of the Third Circuit, may be a plaintiff in this matter"; but (3) neither counsel for plaintiffs nor defendants "shall have further direct contact with any Alderman of the Town of Boyce, or any other Town of Boyce employee with managerial authority." See Application, p. 85. Relators now seek review of the trial court's ruling, particularly as to its refusal to exclude Lacour as a witness and its prohibiting defense counsel from communicating with the Town Council.

We find that this suit involves the res nova issue of whether Louisiana law requires exclusion of evidence and testimony from an officer of a represented organization who was improperly contacted by opposing counsel in violation of Rule 4.2. On June 26, 2017, this court stayed the August 27, 2017 bench trial and ordered additional briefing. Plaintiffs failed to file any opposition brief in this court.

SUPERVISORY RELIEF

"The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b), "Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs." (Citation omitted.) A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court. When the trial court's ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co., Inc. v. Hotel Inv'rs of New Iberia, Inc. , 396 So.2d 878 (La.1981) (per curiam).

ON THE MERITS

Pursuant to the general rules of discovery, a court has the authority to grant a protective order "for good cause shown" if justice requires such an order "to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense." La.Code Civ.P. art. 1426. The granting or denial of a protective order and the extent of protection are within the sound discretion of the trial court. Boyd v. St. Paul Fire & Marine Ins. Co. , 99-1820 (La.App. 3 Cir. 12/20/00), 775 So.2d 649, writ denied , 01-220 (La. 3/23/01), 788 So.2d 430. An appellate court will not modify or reverse the trial court in such matters absent a showing of abuse of discretion. Doucet v. Crowley Mfg. , 02-1065 (La.App. 3 Cir. 3/19/03), 846 So.2d 875. Similarly, the trial court has vast discretion in determining whether to exclude or allow evidence, and its decisions will not be overturned in the absence of an abuse of discretion. Bellsouth Telecomms., Inc. v. City of Lafayette , 05-1478, 05-1505 (La.App. 3 Cir. 1/5/06), 919 So.2d 844.

The primary basis for Relators' request for such an order, as well as its arguments to this court, is that plaintiffs' counsel, in violation of Rule 4.2, communicated with Lacour, an officer of a represented organization, outside the presence and without consent of opposing counsel. Relators posit that the penalty for such communication should be the exclusion of Lacour's testimony in its entirety at trial and, therefore, the trial court erred in failing to exclude Lacour's testimony. Citing the provisions of Rule 4.2, Relators assert the communication between plaintiffs' counsel and Lacour about the subject of this litigation was prohibited because: (1) Lacour, as Alderman, is by definition an "officer" of the Town, which is a defendant in this suit and which Broussard knew was represented by counsel, La.R.S. 33:381, see Rule 4.2(b) ("person the lawyer knows is presently ... officer ... of a represented organization"); (2) defense counsel discussed the litigation with Lacour prior to the communication, see Rule 4.2(b)(1) ("who ... consults with the organization's lawyer concerning the matter"); (3) the Town Council met in executive session twice, with Lacour present, to determine what direction to proceed in this litigation prior to the contact, see Rule 4.2(b)(2) ("who has the authority to obligate the organization with respect to the matter"); and (4) plaintiffs have placed the Town Council's alleged inactions regarding plaintiffs' hiring and termination front and center in this litigation as a basis for their suit, see Rule 4.2(b)(3) ("whose ... omission in connection with the matter may be imputed to the organization for purposes of civil ... liability").

Relators also advance the dual purposes of Rule 4.2 to prevent disclosure of attorney/client communications and to protect a party from "liability-creating statements" elicited by a skilled interrogator. In the interest of furthering same, Relators argue that, when an improper communication is discovered before trial and an ethical violation is found, the communication should be held inadmissible so to balance the scales and protect the sanctity of the attorney-client relationship as well as the integrity of the profession. As to plaintiffs' "constituents" argument, Relators note Broussard is not a constituent, but an attorney who does not live in the town and who discussed the subject of the representation with a "represented party." Simply put, plaintiffs cannot, with impunity, place the inactions of the Town Council at issue and then approach a member thereof in an effort to establish liability outside the presence and without consent of opposing counsel.

Relators also challenge the trial court's sua sponte ruling, prohibiting defense counsel from communicating with the Town Council, a client, which Relators submit contradicts La.Rules Prof.Conduct, Rule 1.4. Moreover, it places defense counsel in an impossible position to defend any claims made against the Town Council as a lawyer employed or retained by an organization, like the Town Council herein, represents the organization acting through its duly authorized constituents, who would be the aldermen in this matter. Citing La.Rules Prof.Conduct, Rule 1.13(a).

We find that this writ presents an issue that has not been directly addressed by this court, specifically whether a protective order excluding the testimony of a witness is the proper measure to take against allegedly unethical conduct in a proceeding before the trial court. It raises the question of what evidentiary consequences, if any, are wrought by an attorney's disregard for the ethical rules prohibiting communication with represented persons. Likewise, it brings to the court's attention the very abuses Rule 4.2 was enacted to prevent and poses a penalty to further the goals our supreme court sought to achieve in its enactment.

While this court has been silent, the fourth circuit in Gilliam suppressed a criminal defendant's statement that was elicited by an investigator without defense counsel's consent in violation of Rule 4.2. Noting the lack of jurisprudence, the Gilliam court held:

The dual purposes behind Rule 4.2 are to prevent disclosure of attorney/client communications, and to protect a party from "liability-creating statements" elicited by a skilled interrogator. Jenkins v. Wal-Mart Stores, Inc. , 956 F.Supp. 695 (W.D.La.1997). In a reported civil case, the court held that an attorney was prohibited from making any use of documents provided by an employee of the adverse corporate party. In re Shell Oil Refinery , 143 F.R.D. 105 (E.D.La.1992), amended on reconsideration in part , and order amended , 144 F.R.D. 73 (E.D.La.1992).
We conclude that where there is an improper communication discovered or considered before it is used at trial, and a violation of the ethical rule is found, it should be held inadmissible. Jenkins , supra . Patterson, even if we believe that he went on his own, elicited the kind of liability-creating statement that Merritt kept in his file for further use for the benefit of Williams and to the detriment of Gilliam. The purpose underlying Rule 4.2 and its analogues is to protect the sanctity of the attorney-client relationship and by so doing, to safeguard the integrity of the profession and preserve public confidence in our system of justice.
No court should condone what happened here. O.I.D.P. represented both Williams and Gilliam, at least until 11 July 1994. The very organization through its investigator and ultimately through its counsel, brought harm to a former client by using the statement which had been obtained by Merritt's agent without permission of the defendant's counsel. We do not wish to be considered as lending our approval to the practice, if indeed a practice exists, of interviewing accused represented persons in jail in the absence of counsel. The better, fairer and safer practice is to afford the defendant's attorney reasonable opportunity to be present. While we have found no cases on point, we hold that a case by case analytical approach is to be utilized by courts contemplating whether supervisory suppression is warranted.

Gilliam , 748 So.2d at 638.

The federal courts have also spoken on this issue, holding:

Federal courts have authority to remedy litigation practices that threaten judicial integrity and the adversary processes. Indeed, the "district court is obliged to take measures against unethical conduct occurring in connection with any proceeding before it." Musicus v. Westinghouse Electric Corp. , 621 F.2d 742 (5th Cir.1980). "The role of the district court in enforcing the Rules [of Professional Conduct] is a limited one, however, and unless an attorney's questionable conduct threatens to taint the litigation pending before the court, 'the business of the court is to dispose of litigation and not to act as a general overseer of the ethics of those who practice here.' " MMR/Wallace Power & Industrial, Inc. v. Thames Assoc. , 764 F.Supp. 712 (D.Conn.1991). See also Dondi Properties Corp. v. Commerce Savings and Loan Assoc. , 121 F.R.D. 284, 290 (N.D.Tex.1988).

Likewise, the treatise writers have addressed the evidentiary consequences for violations of Rule 4.2, explaining:

A violation of the no-contact rule may have consequences beyond formal discipline. In a criminal case, a Louisiana appellate court stated, with Rule 4.2 in mind: "[W]here there is an improper communication discovered or considered before it is used at trial, and a violation of the ethical rule is found, it should be held inadmissible."
A related issue surfaced in In re Shell Oil Refinery , a class action case against Shell in which a group of plaintiffs' lawyers, organized as a "Plaintiffs' Legal Committee," acquired confidential information about Shell through a Shell employee, outside the discovery process. Shell asked the court to order the plaintiffs' lawyers to reveal the identity of the employee, so that they could determine if there had been a violation of Rule 4.2. Shell also sought information about the documents that the employee had provided. The court was unable to determine, at that stage, whether there had been a violation of the rule, but said:
The receipt of Shell's documents was more than informal fact-gathering. The PLC [Plaintiffs' Legal Committee] has effectively circumvented the discovery process and prevented Shell from being able to argue against production. Had the PLC sought to obtain these documents through the discovery process, Shell would have had the opportunity to seek a protective order pursuant to the Federal Rules of Civil Procedure....
The Court is concerned with preserving the integrity of this judicial proceeding. What matters is balancing the scales. That can be done by prohibiting the PLC from making any use of the documents, requiring the PLC to identify and produce the documents to Shell, and prohibiting the PLC from any further ex parte contact with any Shell employees other than those who are plaintiffs in this suit. That Shell may learn the identity of the source once it reviews the documents and perhaps retaliate against the employee is not this Court's concern.
The court entered an order in accordance with those conclusions. The case is interesting, in part, because it shows a court taking steps to protect against some of the abuses that Rule 4.2 is intended to prevent, and the court took those steps without concluding that Rule 4.2 had been violated. If the court had found a Rule 4.2 violation, one suspects that it would have done the same things, while perhaps reporting the offending lawyers to disciplinary authorities.

FRANK L. MARAIST, N. GREGORY SMITH, JUDGE THOMAS F. DALEY (DECEASED), THOMAS C. GALLIGAN, JR., CATHERINE M. MARAIST, 21 LA.CIV. L. TREATISE , Louisiana Lawyering § 9.3 (June 2017 update) (footnotes omitted).

The exclusion or admissibility of evidence ultimately rests within the sound discretion of the trial court. As to the exclusion of Lacour's testimony, we find that Relators have not shown the abuse necessary to reverse the trial court's ruling, especially in the absence of any evidence that the judicial process has been or will be tainted. On this point, it is noteworthy that Relators stress the alleged inaction of the Town Council as giving rise to the liability in this matter, but in the petition, liability is based on Mayor Moore's unilateral action taken "without obtaining the recommendation or consent of Police Chief Eddie Washington or the action of the Board of Aldermen for the Town of Boyce." Therefore, it follows that it is not the Town Council's failure to act, but rather, Mayor Moore's action in its absence that gives rise to liability in this litigation.

We agree with the proposition of defense counsel that he has the right to communicate with his client, the Town Council. The inappropriate action of Plaintiff's counsel should not be a basis for placing any limit on the ability of defense counsel to defend his client. We therefore hold that the trial court abused its discretion in limiting defense counsel's ability to communicate with his client.

Accordingly, the writ is granted to reverse the trial court's ruling prohibiting defense counsel from contact with his client, the Town Council. Otherwise, the application for supervisory writs is denied. The stay order issued by this court on June 26, 2017, is hereby recalled.

WRIT GRANTED IN PART AND MADE PEREMPTORY; WRIT DENIED IN PART. STAY RECALLED.

Gremillion, J., concurs in the result and assigns written reasons.

GREMILLION, J., concurs in the result and assigns written reasons.

I agree with the majority's finding that the Relators have not shown that the trial court abused its vast discretion in not excluding Lacour as a witness, particularly since there was no evidence that the alleged improper contact in any way tainted or will taint the judicial process. The trial court excluded Lacour's affidavit. Lacour's testimony at trial is subject to cross-examination and the fear of artful lawyering suggesting or prompting "liability-creating statements" is not present here. I would further note that there has been no finding, nor would I find based on the evidence before us, that a Rule 4.2 violation has occurred. Gilliam supports a conclusion that an "improper communication" and a violation of a rule of ethics is necessary in order to find a statement is inadmissible at trial. The affidavit has been excluded; excluding the witness entirely from the trial is a far-reaching consequence exceeding the allegations of this particular case.

      Relators explained that, for the purposes of this writ, the terms "Town Council" and "Board of Aldermen" are used interchangeably.

      Rule 4.2 provides:
      Unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order, a lawyer in representing a client shall not communicate about the subject of the representation with:
      (a) a person the lawyer knows to be represented by another lawyer in the matter; or
      (b) a person the lawyer knows is presently a director, officer, employee, member, shareholder or other constituent of a represented organization and
      (1) who supervises, directs or regularly consults with the organization's lawyer concerning the matter;
      (2) who has the authority to obligate the organization with respect to the matter; or
      (3) whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

      La.R.S. 33:381(A) provides: "The officers of every municipality shall be a mayor, aldermen, a chief of police, a tax collector, and a clerk." Relators also cite Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct that explicitly prohibits an attorney from communicating with an "entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

      See Jenkins v. Wal-Mart Stores, Inc. , 956 F.Supp. 695 (W.D. La. 1997) (concluding plaintiff's counsel was not permitted under Rule 4.2 to effect ex parte contact with any current Wal-Mart employee); In re Shell Oil Refinery , 143 F.R.D. 105 (E.D. La. 1992) (prohibiting plaintiffs' counsel's ex parte contact with any Shell employees other than plaintiffs).

      See State v. Gilliam , 98-1320 (La.App. 4 Cir. 12/15/99), 748 So.2d 622, writ denied , 00-493 (La. 9/29/00), 769 So.2d 1215 (suppressing statement elicited from criminal defendant by investigator as taken in violation of Rule 4.2 ). See Cf. Boutte v. Winn-Dixie La., Inc., 95-1123 (La.App. 3 Cir. 4/17/96), 674 So.2d 299 (held improper ex parte communication between plaintiffs' treating physicians and defense counsel); Coutee v. Global Marine Drilling Co. , 04-1293 (La.App. 3 Cir. 2/16/05), 895 So.2d 631, reversed on other grounds, 05-576 (La. 2/22/06), 924 So.2d 112 (found abuse of discretion to allow testimony of plaintiff's treating physician who accepted documents from, engaged in telephone conversations with, and met with defense counsel).

      La.Rules of Prof.Conduct, Rule 1.4 provides:
      (a) A lawyer shall:
      (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
      (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
      (3) keep the client reasonably informed about the status of the matter;
      (4) promptly comply with reasonable requests for information; and
      (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
      (b) The lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.
      (c) A lawyer who provides any form of financial assistance to a client during the course of a representation shall, prior to providing such financial assistance, inform the client in writing of the terms and conditions under which such financial assistance is made, including but not limited to, repayment obligations, the imposition and rate of interest or other charges, and the scope and limitations imposed upon lawyers providing financial assistance as set forth in Rule 1.8(e).


text:
    STATE of Louisiana v. Andrea HALL
    17-325
    Court of Appeal of Louisiana, Third Circuit.
    July 19, 2017
    Bradley R. Burget, District Attorney, Concordia Parish, 4001 Carter Street, Suite 9, Vidalia, LA 71373, (318) 336-5526, COUNSEL FOR PLAINTIFF/RESPONDENT: State of Louisiana
    Andrea Hall, Camp J/Gator 3/L/14, La. State Penitentiary, Angola, LA 70712, IN PROPER PERSON: Andrea Hall
    Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

A history of Relator's filings pertinent to the current writ application follows:

Relator, Andrea Hall, was found guilty on June 25, 1991, of two counts of attempted second degree murder. He was adjudicated a habitual offender on July 24, 1991, and sentenced to one hundred years on each count, to be served consecutively. The convictions and sentences were affirmed on appeal. State v. Hall , 606 So.2d 972 (La.App. 3 Cir. 1992), writ denied , 93-51 (La. 11/11/94), 644 So.2d 385.

Later, one of the convictions for attempted second degree murder was vacated by the federal court on August 15, 1995, leaving the other conviction intact. On an unspecified date in 1996, Relator filed an application for post-conviction relief in the trial court. On June 21, 1996, the trial court denied Relator's application as untimely. In response to Relator's request for review, this court granted Relator's writ, finding the trial court erred in denying his application for post-conviction relief as untimely. State v. Hall, 96-1503 (La.App. 3 Cir. 8/19/97) (unpublished opinion). On that same date, in a separate ruling, this court also ordered the trial court to rule on Relator's November 1996 application for post-conviction relief or conduct an evidentiary hearing. State v. Hall , 97-949 (La.App. 3 Cir. 8/19/97) (unpublished opinion). In response to this court's orders, the trial court held an evidentiary hearing on September 19, 1997, on Relator's applications for post-conviction relief filed in June and November 1996. At the hearing, the trial court denied all of Relator's claims asserted in those applications.

At this same hearing, however, the trial court heard arguments on Relator's motion to correct an illegally lenient sentence. Relator argued his habitual offender sentence was illegal since he was not advised of his rights before admitting to his status as a habitual offender. On that particular issue, the trial court granted Relator relief and advised the District Attorney, if he desired, to re-file the habitual offender bill and reschedule a hearing on the bill. On March 24, 1998, a habitual offender hearing was again held and Relator was adjudicated a habitual offender. On April 2, 1998, he was sentenced to one hundred years at hard labor. See State v. Hall, 98-625 (La.App. 3 Cir. 12/29/98) (unpublished opinion) and State v. Hall , 00-1153 (La.App. 3 Cir. 5/3/01) (unpublished opinion).

On April 30, 1998, Relator filed a writ with this court seeking review of the trial court's denial of claims he asserted at the September 19, 1997 evidentiary hearing. This court reviewed the merits of Relator's claims finding no error in the trial court's ruling. Hall, 98-625. Relator sought a writ of review by the supreme court, and on July 2, 1999, the supreme court denied the application stating: "Denied. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189." State ex rel. Hall v. State, 99-326 (La. 7/2/99), 747 So.2d 8. Relator applied for reconsideration, and on September 24, 1999, the supreme court denied reconsideration. State ex rel. Hall v. State , 99-326 (La. 9/24/99), 747 So.2d 1113. The Supreme Court explained in pertinent part: "The Court of appeal affirmed relator's 1990 conviction in 1992. State v. Hall, 606 So.2d 972 (La.App. 3d 1992). Relator did not seek review timely in this court, and the conviction became final as to direct review. La.Code Crim.P. art. 922B; La.S.Ct.R. X § 5(a)." In State ex rel. Hall v. State, 99-326 (La. 9/24/99), 871 So.2d 1071 (footnote omitted), the supreme court noted that Relator filed an untimely application in 1994 which it denied in State ex rel. Hall v. Whitley, 93-51 (La. 11/11/94), 644 So.2d 385. The Supreme Court stated:

Relator then filed this application for reconsideration, arguing that he filed the 1996 application in the district court within three years of this court's denial of his 1994 application. However, Relator's conviction became final in 1992, and this court's treatment of this untimely application under the Jacobs (State v. Jacobs , 504 So.2d 817, 818 n.1 (La. 1987) ), procedure did not "unfinalize" the conviction. Hall , 871 So.2d 1071.

In the current instance, Relator filed a "Motion to Correct an Illegal Sentence" on February 2, 2017, wherein he alleged trial errors with the 1998 habitual offender adjudication and that the bill of information that resulted in his 1991 conviction for attempted second degree murder and the 1998 habitual offender bill of information which resulted in a habitual offender sentence were defective. The motion was denied on March 13, 2017, as repetitive and without merit. On January 24, 2017, Relator filed a "Motion to Clarify Sentence," wherein he claimed that because the federal court ruled that the 1998 habitual offender sentence was not a valid sentence, he does not know whether he is serving the 1991 sentence or the 1998 sentence. The trial court denied the motion as being without merit. On March 2, 2017, Relator filed a "Supplemental Motion to Correct an Illegal Sentence Imposed under La.R.S. 15:529.1 the Habitual Offender Law," wherein he asserted that the bill of information which resulted in the conviction for attempted second degree murder was defective and that after the federal district court acquitted him of one of the convictions, the federal court judge failed to remand to the district court for reconsideration of the remaining sentence; therefore, he did not have the opportunity to present mitigating factors to reduce the sentence. Finally, he asserted that the sentence was constitutionally excessive. The trial court denied the supplemental motion on March 13, 2017, as repetitive and without merit.

Relator now seeks review of the trial court's rulings. However, we find that there was no error with the trial court's rulings.

ANALYSIS:

February 2, 2017, "Motion to Correct an Illegal Sentence" :

In his motion to correct an illegal sentence, Relator asserted that the trial court failed to advise him of his right to remain silent during the habitual offender hearing and that the bill of information that resulted in the 1991 conviction for attempted second degree murder and the 1998 habitual offender bill of information were defective.

However, we find the claims are not illegal sentence claims. In State v. Moore , 93-1632, p. 3 (La.App. 3 Cir. 5/4/94), 640 So.2d 561, 563, writ denied , 94-1455 (La. 3/30/95), 651 So.2d 858, this court stated: "An illegal sentence is one not 'authorized or directed by law.' State v. Johnson , 220 La. 64, 55 So.2d 782 (1951)." When a relator's motion to correct an illegal sentence fails to allege and prove that the sentence is not authorized or directed by law, the asserted claims are often reviewed as if submitted by application for post-conviction relief. State v. Parker , 98-256, p. 1 (La. 5/8/98), 711 So.2d 694, 695. However, in State v. Hebreard , 98-385, p. 2 (La.App. 4 Cir. 3/25/98), 708 So.2d 1291, 1292, the court announced that a challenge to a habitual offender proceeding is not a proper ground for post-conviction relief, citing State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172 and La.Code Crim.P. art. 930.3. See, e.g., State v. Daniels , 00-3369, p. 2 (La. 11/2/01), 800 So.2d 770, 771, and State ex rel. Brown v. State , 03-2568, p. 2 (La. 3/26/04), 870 So.2d 976, 977. Thus, we find Relator's habitual offender claims are precluded from review on post-conviction relief.

Furthermore, the challenge to the habitual offender proceeding is repetitive. See State v. Hall , 00-1153 (La.App. 3 Cir. 5/3/01) (unpublished opinion). As noted above, Relator's conviction and sentence became final in 1992. Although Relator was resentenced in April 1998, "[r]esentencing alone does not restart the three-year time period for applying for post-conviction relief." State ex rel. Rushing v. Whitley , 93-2722, p.1 (La. 11/13/95), 662 So.2d 464, 464. Relator failed to allege or prove any exceptions to the time limitation of La.Code Crim.P. art. 930.8 ; thus, Relator's motion was untimely filed. The untimeliness of an application may be recognized for the first time by an appellate court. See State ex rel. Glover v. State , 93-2330, 94-2101, 94-2197 (La. 9/5/95), 660 So.2d 1189.

January 24, 2017, "Motion to Clarify Sentence" :

As noted above, in 1995, the federal court acquitted Relator of one of the attempted second degree convictions and vacated the 1991 sentence of one hundred years imprisonment that was imposed after Relator was adjudicated a second felony offender. See La.R.S. 14:27, 14:30.1, and 15:529.1. In 1998, Relator was again adjudicated a second felony offender pursuant to La.R.S. 15:529.1 and "resentenced" to one hundred years imprisonment on the remaining conviction for attempted second degree murder. In his motion to clarify sentence, Relator stated:

Based upon the Federal District Court findings, petitioner's 1998 re-sentencing is of no effect, and that those findings were based upon decisions from the Louisiana Supreme Court and Third Circuit Court of Appeal. (See Exhibit "B," Court of Appeal's Judgment)
However, it seems that this Court recognizes the 1998 re-sentencing as the prison term petitioner is currently incarcerated under. The conflicted findings of the Courts have left the petitioner perplexed as to whether he is currently incarcerated under the 1991 sentencing or the 1998 re-sentencing.
Being perplexed as to whether he is currently incarcerated under the 1991 sentencing or the 1998 re-sentencing hindered petitioner's ability to challenge the legality of his prison sentence by way of a motion to correct an illegal sentence. And, therefore, denies petitioner due process of law as guarantee under the U.S. Constitutions.

However, we note that Relator's assertion that the federal court's statement that the 1998 habitual offender sentence had "no effect" was in response to Relator's argument to the federal court that this court and the Louisiana Supreme Court misapplied the time limitation to his motion to correct an illegal sentence (which was considered as a post-conviction application) pursuant to La.Code Crim.P. art. 930.8. See State v. Hall , 00-1153 (La.App. 3 Cir. 5/3/01) (unpublished opinion), writ denied, 01-1786 (La. 3/8/02), 810 So.2d 1162. The federal court noted:

His application for writs in the Third Circuit likewise attacked the legality of those 1997-1998 proceedings. The Third Circuit determined that petitioner's Motion to Correct an Illegal Sentence since it did not raise claims cognizable in such a motion, was properly treated as an application for post-conviction relief. That court's determination thereafter that the claims were untimely is supported by the record before this court and State and federal jurisprudence.
In arriving at their conclusion that petitioner's post-conviction pleading were time barred, the Third Circuit opined that according to the Louisiana Supreme Court, petitioner's "...conviction became final in 1992..." and therefore "...the claims asserted by Relator at the evidentiary hearing held on September 19, 1997 were untimely filed..." Since those claims were filed more than three years after the petitioner's conviction and sentence became final in 1992 they were clearly time barred by the provisions of art. 930.8. Further, in citing State ex rel.Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189, the Third Circuit correctly applied that provision of the cited case which holds that "...the fact that the trial court reached the merits in an untimely filed application for post[-]conviction relief, when the application did not fit within one of the exceptions to Art. 930.8(A), did not preclude the court of appeal from raising Art. 930.8's time bar." Glover, at p. 1201. Therefore, the district court proceedings attacked herein, i.e. the 1997 evidentiary hearing, the 1998 habitual offender adjudication and the sentencing thereafter, were of no effect and did not operate to "restart" petitioner's post-conviction time limitation. This conclusion of law is supported by Louisiana Supreme Court jurisprudence [Compare State v. Daniels , 2000-3369 (La. 11/2/2001), 800 So.2d 770.]

We find it is clear from the above language that the sentence Relator is now serving is the habitual offender sentence imposed in 1998, but the resentencing did not restart the time limitation for the purpose of La.Code Crim.P. art. 930.8. See State v. Littleton, 43,609 (La.App. 2 Cir. 5/7/08), 982 So.2d 978, writ denied, 08-1408 (La. 3/27/09), 5 So.3d 135. As noted above, the 1992 habitual offender adjudication was vacated in 1998, which served to vacate the sentence, and Relator was resentenced to one hundred years as a second time habitual offender. There was no conflict between the rulings of this court, the Supreme Court, and the federal court. We find there is no merit to this claim.

March 2, 2017, "Supplemental Motion to Correct an Illegal Sentence Imposed under La.R.S. 15:529.1 the Habitual Offender Law."

In his supplemental motion to correct an illegal sentence, Relator argued that after the federal court acquitted him of one of the convictions, it failed to remand the matter to the trial court for reconsideration of the remaining sentence. Accordingly, he was not afforded the opportunity to present mitigating factors in support of a reduction of the sentence. He further argued that the sentence was constitutionally excessive in that it was cruel and unusual punishment considering the circumstances of his case. Finally, he argued that the 1990 bill of information was defective in that it described as an element of the offense the specific intent to inflict serious bodily harm, whereas attempted second degree murder requires proof of specific intent to kill rather than inflict bodily harm.

As noted above, an illegal sentence is a sentence that was not authorized by law. While a claim of an illegal sentence may be heard at any time, Relator's sentence was a sentence that was authorized by law. At the time of the offense, second degree murder was punishable by life imprisonment, at hard labor, without the benefit of parole, probation, or suspension of sentence. La.R.S. 14:30.1. The attempt statute provided that "If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years." La.R.S. 14:27 (D)(1). Relator was adjudicated a second felony offender. Pursuant to the Habitual Offender Law, in pertinent part, as it existed at the time of the offense:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

La.R.S. 15:529.1(A)(1).

Relator's sentence was a legally imposed sentence. Accordingly, his claims are in the nature of an application for post-conviction relief and, thus, are untimely filed, and Relator has not provided an exception to the time limitation. La.Code Crim.P. art. 930.8. Furthermore, the excessiveness of the sentence was addressed on appeal, and the sentence was not found to be excessive. See Hall, 606 So.2d 972. As for the defective bill of information, Relator attached a copy of the bill, and it does not state that specific intent to inflict serious bodily harm was an element of the offense of attempted second degree murder. However, on appeal, it was revealed that when the trial court instructed the jury as to elements of the crime, it listed as an element of attempted second degree murder specific intent to kill or inflict serious bodily harm. This court found the error harmless in the case. Id. Accordingly, the claims were untimely filed and repetitive.

In each motion discussed above, we find no error in the trial court's rulings.

DISPOSITION:

WRIT DENIED: In Relator's February 2, 2017, "Motion to Correct an Illegal Sentence," Relator's claim that the trial court failed to advise him of his right to remain silent at the habitual offender's hearing was addressed by the trial court on September 19, 1997. The trial court's ruling was affirmed in State v. Hall , 98-625 (La.App. 3 Cir. 12/29/98) (unpublished opinion). Accordingly, this claim was repetitive. The remaining claim that the 1991 and 1998 bills of information were defective was not a claim cognizable as an illegal sentence claim. The claim was in the nature of an application for post-conviction relief and thus untimely filed, and Relator did not provide an exception to time limitation for filing for post-conviction relief. La.Code Crim.P. art. 930.8.

In Relator's January 24, 2017, "Motion to Clarify Sentence," Relator alleged the federal court decreed the 1998 habitual offender sentence was of "no effect." The federal court was referring to Louisiana's jurisprudence that a "resentencing" did not restart the time limitation for the purpose of La.Code Crim.P. art. 930.8, not the actual sentence imposed in 1998. See State v. Littleton , 982 So.2d 978, writ denied , 08-1408 (La. 3/27/09), 5 So.3d 135.

In Relator's March 2, 2017, "Supplemental Motion to Correct an Illegal Sentence Imposed under La.R.S. 15:529.1 the Habitual Offender Law," which claimed the federal court failed to remand for reconsideration of one of the 1991 sentences and that the 1991 bill of information was defective, Relator failed to allege and prove that the sentence was not authorized or directed by law and thus an illegal sentence. Accordingly, Relator's claim of illegal sentence was in the nature of an application for post-conviction relief and thus, untimely filed, and Relator did not provide an exception to time limitation for filing for post-conviction relief. La.Code Crim.P. art. 930.8. Furthermore, the excessiveness of the sentence was litigated on appeal and thus, is repetitive. See State v. Hall, 606 So.2d 972 (La.App. 3 Cir. 1992), writ denied , 93-51 (La. 11/11/94), 644 So.2d 385.

There was no error with the trial court's denial of Relator's February 2, 2017, "Motion to Correct an Illegal Sentence," the January 24, 2017, "Motion to Clarify Sentence," and the March 2, 2017, "Supplemental Motion to Correct an Illegal Sentence Imposed under La.R.S. 15:529.1 the Habitual Offender Law." Accordingly, Relator's writ application is denied.


author: HOLDRIDGE, J.

text:
    Brad and Joy DUET v. Jerry LANDRY, Jr. and Simoneaux's Mobile Home Movers, LLC
    2017 CA 0937
    Court of Appeal of Louisiana, First Circuit.
    APRIL 30, 2018
    Henri M. Saunders, Scotty E. Chabert, Jr., Cheyenne Moeller Meek, Baton Rouge, LA, Attorneys for Plaintiffs/Appellees Brad and Joy Duet
    Tonya B. Clark, Napoleonville, LA, Attorney for Defendants/Appellants Jerry Landry, Jr. and Simoneaux's Mobile Home Movers, LLC
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

Defendants-appellants, Jerry Landry, Jr. and Simoneaux's Mobile Home Movers, LLC, appeal the trial court's judgment denying their peremptory exception raising the objection of prescription and awarding plaintiffs-appellees, Brad and Joy Duet damages. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Mr. Duet was employed by Simoneaux's Mobile Home Movers, LLC, which was owned and operated by Mr. Landry. In August of 2011, Mr. Landry received a check from First American Trust for $28,095.12 that was payable to Mr. Duet. Mr. Landry asked Mr. Duet to endorse the check. Mr. Duet was allegedly unaware of what he was signing. The proceeds from the check were deposited into Mr. Landry's account. However, unbeknownst to Mr. Duet, the proceeds of the check were reported as retirement income belonging to him and his wife, Mrs. Duet. On January 7, 2013, plaintiffs received a notice from the Internal Revenue Service (IRS) for taxes on the retirement income along with penalties and interest. The notice asserted that plaintiffs owed the IRS

$4,733.00 in unpaid taxes for the 2011 tax year.

On March 4, 2013, plaintiffs sent the IRS a letter advising them that they never received the $28,095.12 income and that they believed there was identity theft. Mrs. Duet then contacted the IRS to investigate the matter and discovered that the check, made payable to Mr. Duet and issued by First American Trust, was from the liquidation of a retirement account alleged to be earned by Mr. Duet from Simoneaux's Mobile Home Movers, LLC. After learning this, Mr. Duet promptly contacted Mr. Landry, who assured him that he would take care of it and claimed that it was a mistake.

On April 1, 2013, plaintiffs received another notice from the IRS stating that there was an increase in their taxes and gave them a limited time to appeal. Mr. Duet immediately contacted Mr. Landry, who again assured him that it was a mistake and that he was going to take care of it. Mr. Landry also told Mr. Duet that "he [had already] paid the taxes on it." On May 22, 2013, plaintiffs contacted the IRS and advised them that they had learned that Mr. Landry had created a retirement account in the name of Mr. Duet, without his knowledge. On July 10, 2013, the IRS sent another notice to plaintiffs advising them that it was investigating the matter.

On March 3, 2014, the IRS sent a notice to plaintiffs indicating that although plaintiffs' 2013 tax form showed an overpayment of $1,756.00, entitling them to a refund, the IRS was applying that amount to the tax purportedly owed by them to the IRS in 2011. Mr. Duet questioned Mr. Landry again about the tax issue and he reassured Mr. Duet that he was "still looking at it [and] that it was paid." On July 14, 2014, plaintiffs received a notice from the Louisiana Department of Revenue (LDR) stating that they owed the LDR the sum of $1,126.11, arising from a federal audit for the 2011 tax filing year, which included penalties and interest. Mr. Duet again contacted Mr. Landry about the issue, who again assured him that he was consulting with a CPA to resolve any issues and would pay any taxes owed.

On October 13, 2014, plaintiffs filed a petition for damages against defendants because they never received their money from defendants. In their petition, plaintiffs alleged that the proceeds from the check were liquidated retirement funds belonging to Mr. Duet and they sought a judgment in the amount of those funds as well as damages, including the IRS interest and penalties and general damages for emotional distress. Defendants answered the petition, contending that the funds did not belong to Mr. Duet because Mr. Landry had never established a retirement fund for Mr. Duet. Defendants also filed a peremptory exception raising the objection of prescription.

This matter proceeded to a bench trial on December 17, 2015. The trial court considered the peremptory exception raising the objection of prescription at trial and denied it. Testimony and evidence at trial established that the funds from the check belonged to Mr. Landry; however, the trial court found that defendants were liable to plaintiffs for the amount of federal income tax liability plaintiffs incurred on the proceeds. On February 4, 2016, the trial court rendered judgment for plaintiffs against defendants for $4,733.00, along with any penalties and interest, representing the tax liability. The trial court also awarded Mr. Duet $5,000.00 and Mrs. Duet $10,000.00 against defendants for emotional distress damages. Defendants appealed the February 4, 2016 judgment.

On May 9, 2016, this court on its own motion issued a rule to show cause as to why this appeal should not be dismissed because the written reasons were not set out in an opinion separately from the judgment. See La. C.C.P. art. 1918. The record was supplemented by the trial court with a judgment signed February 4, 2016, which contained only the trial court's rulings and not the reasons for judgment. Therefore, this court dismissed the appeal on March 6, 2017 and remanded the matter to the trial court. See Duet v. Landry, 2016-0575 (La. App. 1 Cir. 3/6/17), 2017 WL 900066 (unpublished opinion).

The trial court signed an amended final judgment and amended reasons for judgment on April 5, 2017, awarding plaintiffs $5,117.98 for the amount of federal income tax liability they incurred. The judgment also awarded Mr. Duet $5,000.00 for emotional distress and Mrs. Duet $10,000.00 for emotional distress. From this judgment, defendants suspensively appeal. Defendants assign as error that the trial court erred in rendering judgment awarding damages incidental to an alleged conversion when the trial court did not award damages based on the actual conversion; in denying the peremptory exception raising the objection of prescription; in failing to reduce plaintiffs' damages based on their alleged failure to mitigate their damages; and in awarding plaintiffs' damages for emotional distress. Plaintiffs have answered the appeal seeking a modification of the award of general damages.

DISCUSSION

Cause of Action

Plaintiffs base their suit against defendants on the legal theory of conversion. Conversion is an intentional tort and consists of an act in derogation of the plaintiffs' possessory rights. Kinchen v. Louie Dabdoub Sell Cars, Inc., 2005-218 (La. App. 5 Cir. 10/6/05), 912 So.2d 715, 718, writ denied, 2005-2356 (La. 3/17/06), 925 So.2d 544. The tort of conversion is committed when one wrongfully does any act of dominion over the property of another in denial of or inconsistent with the owner's rights. Id. Although a party may have rightfully come into possession of another's goods, the subsequent refusal to surrender the goods to one who is entitled to them may constitute conversion. Id.

Plaintiffs argue that Mr. Landry intentionally created the retirement account in the name of Mr. Duet in order to avoid paying federal income taxes, constituting conversion or an action akin to conversion. Plaintiffs argue that the record supports the trial court's finding that Mr. Landry acknowledged his liability for the federal income taxes owed. Therefore, plaintiffs argue that the trial court correctly awarded plaintiffs the unpaid federal income taxes together with accrued penalties and interest.

After reviewing the record as a whole, we have determined that no conversion claim exists in the instant matter because Mr. Duet never had ownership interest in the funds allegedly converted by Mr. Landry. The testamentary evidence in the record indicates that plaintiffs were aware that they did not have ownership of the funds alleged to be converted by Mr. Landry. Therefore, plaintiffs do not have a conversion claim against defendants.

However, Louisiana Civil Code article 2315(A) provides "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." In this case, Mr. Landry intentionally requested that Mr. Duet endorse a check in the sum of $28,095.12, made payable to Mr. Duet, so that Mr. Landry could deposit the check into his personal bank account. Mr. Landry deceptively reported the amount to the IRS as income received by Mr. Duet despite repeated assurances from Mr. Landry that he was going to take care of the amount owed to the IRS by plaintiffs. Mr. Landry failed to remedy the debt owed to the IRS resulting in plaintiffs' indebtedness to the IRS. Therefore, we affirm the trial court's award of $5,117.98 to plaintiffs, which is the amount of damage Mr. Landry inflicted upon them by his intentional act.

Furthermore, we find that plaintiffs have sufficiently alleged facts supporting a damage claim under La. C.C. art. 2315(A) resulting from the intentional deceptive actions and misrepresentations of Mr. Landry. When evaluating whether plaintiffs can recover general damages for an intentional tort, we apply the legal precepts of general tort law. See Caudle v. Betts, 512 So.2d 389, 391 (La. 1987). The courts are not bound to accept a plaintiff's characterization of the nature of his cause of action if unsupported by factual allegations. Kroger Co. v. L.G. Barcus & Sons, Inc., 44,200 (La. App. 2 Cir. 6/17/09), 13 So.3d 1232, 1235, writ denied, 2009-2002 (La. 11/20/09), 25 So.3d 800. In Louisiana, delictual actions are governed by La. C.C. art. 2315, which provides that a tortfeasor must compensate a tort victim for all of the damages occasioned by his act and put the victim in the position that he would have occupied if the tort had not been committed. See McGee v. A C And S, Inc., 2005-1036 (La. 7/10/06), 933 So.2d 770, 773 ; Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Service Co., 618 So.2d 874, 876 (La. 1993). Damages refers to "pecuniary compensation, recompense, or satisfaction for an injury sustained." Willis v. Noble Drilling (US), Inc., 2011-598 (La. App. 5 Cir. 11/13/12), 105 So.3d 828, 843, quoting Fogle v. Feazel, 201 La. 899, 909, 10 So.2d 695, 698 (1942). In the delictual context, La. C.C. art. 2315 authorizes compensatory damages. Id. These damages include reparation for physical suffering, inconvenience, loss of earnings and services, expenses incurred, and mental suffering. Id. at 844. Moreover, when extreme and outrageous conduct intentionally causes severe emotional distress, then liability for such distress attaches. White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). Much discretion is left to the judge or jury in the assessment of delictual damages. La. C.C. art. 2324.1. An appellate court may only disturb a general damages award after an articulated examination of the facts discloses an abuse of that discretion. Prejeant v. Gray Ins. Co., 2015-87 (La. App. 5 Cir. 9/23/15), 176 So.3d 704, 710.

The record reveals that plaintiffs incurred federal income tax liability as a result of the extreme and outrageously deceitful and intentional conduct of Mr. Landry. Mr. Landry intentionally created the retirement account in the name of Mr. Duet, using his social security number, in order to avoid paying income taxes on the $28,095.12 check. Mr. Landry intentionally deceived Mr. Duet when asking him to endorse the check so that Mr. Landry could deposit the check into his own personal checking account. Mr. Duet, who worked for Mr. Landry for approximately fifteen years, had no reason to suspect suspicious behavior when endorsing the check. Each time plaintiffs received a notice from the IRS stating that they owed the sum of $4,733.00, they promptly contacted Mr. Landry, and he repeatedly and deviously led them to believe they should disregard the notices. This levy not only caused significant humiliation, embarrassment, inconvenience, and stress for plaintiffs, but also caused severe financial hardship for plaintiffs, caused them to borrow money from their family members to pay for personal items, and caused them to obtain legal counsel. Mr. Duet testified at trial, stating that he witnessed his wife suffer emotionally and mentally. Mr. Duet stated that he witnessed Mrs. Duet become depressed and angry with him "for something that [he] didn't even do" because she felt that he should have taken care of it. Mr. Duet further stated that the instant matter has caused marital conflict between them that still remains today. Mr. Duet testified that it made him sad to borrow money from multiple family members to pay their taxes and to pay for their daughter's senior pictures.

Under the particular circumstances in this case, we find from the evidence produced at trial, as recognized by the trial court, that both plaintiffs spent a considerable amount of time and effort in dealing with the IRS problem caused by the intentional misrepresentations made by defendants. We find that the record reveals that plaintiffs made numerous phone calls to the IRS and had numerous discussions with Mr. Landry about the debt owed. We find it appropriate to award plaintiffs compensation for their considerable emotional distress, inconvenience, and efforts made associated with the incident deliberately caused by defendants, compensating them for the time they expended on the IRS problem, as well as the loss of funds for which they were entitled to.

The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994) ; McCarroll v. Asplundh Tree Expert Co., 427 So.2d 881, 883 (La. App. 1 Cir. 1982), writ denied, 432 So.2d 268 (La. 1983). Upon a finding of an abuse of discretion, the appellate court must adjust an inadequate award to a minimum reasonable amount, or an excessive award to a maximum reasonable amount. See Smith v. Roussel, 2000-1028 (La. App. 1 Cir. 6/22/01), 809 So.2d 159, 168.

Accordingly, we find it appropriate to award plaintiffs compensation for their compensatory damages as well as their emotional distress associated with the intentional incident caused by defendants. Therefore, we affirm the trial court's judgment awarding the sum of 5,000.00 to Mr. Duet and $10,000.00 to Mrs. Duet for their efforts they expended in dealing with the IRS, the expenses they incurred, and the loss of income they sustained by not receiving a refund from the IRS. For these reasons, we affirm the trial court's judgment.

Prescription

The proper characterization of the nature of plaintiffs' claim is vital in the determination of the running of prescription. This court has determined that the plaintiffs have a damage claim under La. C.C. art. 2315(A), a delictual action subject to a liberative prescription of one year. Alcorn v. City of Baton Rouge, 2002-0952 (La. App. 1 Cir. 12/30/04), 898 So.2d 385, 388, writ denied, 2005-0255 (La. 4/8/05), 899 So.2d 12. Louisiana Civil Code article 3492 provides that delictual actions are subject to a liberative prescription of one year, which commences to run from the day the injury or damage is sustained.

Defendants assign as error that the liberative prescriptive period allowed had elapsed before plaintiffs filed their petition for damages. Defendants argue that plaintiffs' claims have prescribed because the record provides that Mr. Duet endorsed the check in August of 2011, making prescription run until August of 2012. Therefore, defendants argue that plaintiffs' petition for damages filed in October of 2014 was untimely filed. Defendants further argue that the trial court erred in determining that prescription was interrupted by Mr. Landry's acknowledgment of plaintiffs' debt because once prescription has run, the doctrine of acknowledgment is inapplicable.

Plaintiffs counter argue that their petition for damages was timely filed because Mr. Landry's several acknowledgments of the debt that was owed by plaintiffs interrupted the running of prescription. Plaintiffs argue that Mr. Landry last acknowledged plaintiffs' debt in July of 2014, when he told Mr. Duet he was still looking into the matter and that the debt was paid, making their petition for damages timely.

The burden of proof is normally on the party pleading prescription; however, if on the face of the petition it appears that prescription has run, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. Laforte v. Gulf Island Fabrication, Inc., 2010-1605 (La. App. 1 Cir. 5/3/11), 65 So.3d 182, 185, writ denied, 2011-1484 (La. 9/30/11), 71 So.3d 296. Thus, plaintiffs had the burden of proving that their claim had not prescribed, because from the face of plaintiffs' petition it appears that prescription has run.

Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. La. C.C. art. 3464. Such an acknowledgment is not subject to any particular formality. It may be written or verbal, express or tacit. Riehm v. State Farm Mutual Auto. Ins. Co., 2007-651 (La. App. 5 Cir. 1/22/08), 977 So.2d 1045, 1048, writ denied, 2008-0387 (La. 4/18/08), 978 So.2d 350. Acknowledgment involves an admission of liability, either through explicit recognition of a debt owed, or through actions of the debtor that constitute a tacit acknowledgment. Bracken v. Payne and Keller Co., Inc., 2006-0865 (La. App. 1 Cir. 9/5/07), 970 So.2d 582, 588. A tacit acknowledgment arises from a debtor's acts of reparation or indemnity, unconditional offers or payments, or actions which lead the creditor to believe that the debtor will not contest liability. Titus v. IHOP Restaurant, Inc., 2009-951 (La. 12/1/09), 25 So.3d 761, 765.

Plaintiffs rely on the trial court's amended reasons for judgment to support their claim, which stated, in pertinent part:

The Louisiana Supreme Court has repeatedly held that prescription may be interrupted by acknowledgement. In Mallet[t] v. McNeal, [2005-2289 (La. 10/17/06), 939 So.2d 1254, 1258,] the Louisiana Supreme Court stated that tacit acknowledgment is defined as an act of reparation or indemnity, or actions which lull the plaintiff into believing that the defendant will not contest liability. In Crump v. Sabine River Authority, [98-2326 (La. 6/29/99), 737 So.2d 720, 729,] the issue was whether the [d]efendant's reassurances about the plaintiffs['] concerns were sufficient to constitute an acknowledgement that would suspend prescription. In Crump, a third party dug a canal on the River Authority's property, and that project caused damage to Crump's property. Crump filed the suit well after the prescriptive period ran, and argued that prescription was interrupted by [d]efendant's successive acknowledgements that the canal was illegally constructed and statements they would "see what we can do" about the [p]laintiff's concerns. The Second Circuit held that the River Authority's statements alone were not sufficient to interrupt prescription.
This Court finds that [Mr.] Landry did more than reassure [Mr.] Duet that he would look into the tax issues resulting from the [c]heck. [Mr.] Landry went a step further than the River Authority in Crump when he indicated that he had paid the taxes on the income from the [c]heck. [Mr.] Landry's statements that he paid the taxes caused the [plaintiffs] to believe that [Mr. Landry] accepted responsibility for the taxes arising from the [c]heck, and would not contest liability for them. Therefore, [Mr.] Landry's reassurances that he paid the taxes and would look into why the [plaintiffs] were receiving the IRS notices is an acknowledgment that suspended prescription, making the [plaintiffs'] October 13, 2014 suit timely. [Footnotes omitted].

After reviewing the record, including the documentary and testamentary evidence submitted by the parties, we cannot say that the trial court was manifestly erroneous in its factual determination that prescription was interrupted by Mr. Landry's continuous acknowledgment of the debt owed by plaintiffs. The record reveals that from the time plaintiffs received their first notice from the IRS in January of 2013 until the last notice they received from the LDR in July of 2014, Mr. Landry tacitly acknowledged the debt owed to the IRS by repeatedly reassuring Mr. Duet that he would look into the tax issues resulting from the notices plaintiffs were receiving from the IRS, repeatedly telling plaintiffs that it was a simple mistake, and that he had paid taxes on the income from the check. The record further reveals that the last time Mr. Landry acknowledged the debt owed was in July of 2014, making plaintiffs' claim timely. A trier of fact is free to believe in whole or part the testimony of any witness. Pennison v. Carrol, 2014-1098 (La. App. 1 Cir. 4/24/15), 167 So.3d 1065, 1076, writ denied, 2015-1214 (La. 9/25/15), 178 So.3d 568. Thus, the trial court was free to believe the testimony of plaintiffs that Mr. Landry acknowledged the debt owed. Mr. Landry's conduct compelled plaintiffs to believe that he would not dispute the debt owed, constituting a tactic acknowledgment, sufficient to interrupt the running of prescription because plaintiffs believed that Mr. Landry had accepted responsibility for the taxes arising from the check, had in fact paid the taxes, and that the IRS no longer was owed any debts. Based on its factual determination, the trial court correctly determined that prescription was interrupted by Mr. Landry's acknowledgment to plaintiffs that he paid the taxes on the check and would look into why plaintiffs were continuing to receive notices from the IRS. Defendants' second assignment of error has no merit.

Plaintiffs' Answer to Appeal

For the same reasons expressed earlier in this opinion, we find no merit in the issues raised in plaintiffs' answer to appeal. See Youn, 623 So.2d at 1261.

CONCLUSION

For the reasons discussed above, we affirm the April 5, 2017 judgment of the trial court. The answer to the appeal is denied. Costs are assessed to defendants-appellants, Jerry Landry, Jr. and Simoneaux's Mobile Home Movers, LLC.

AFFIRMED; ANSWER TO APPEAL DENIED.

Penzato, J. concurs

Higginbotham, J. concurs.

      The trial court amended plaintiffs' damages award to reflect that the IRS applied the plaintiffs' 2013 overpayment of $1,756.00 to their 2011 tax balance. This applied overpayment of $1,756.00 added to their existing balance owed to the IRS of $3,361.98 totals $5,117.98.

      We note that it is questionable as to whether the damages in this case should only be awarded to Mr. Duet instead of both Mr. Duet and Mrs. Duet. However, this issue was not raised on appeal. This court only reviews issues raised on appeal. As a general rule, appellate courts will not consider issues raised for the first time in this court, which are not pleaded in the court below and which the court below has not addressed. See Geiger v. State ex rel. Dept. of Health & Hosp., 2001-2206 (La. 4/12/02), 815 So.2d 80, 86.

      We pretermit discussion of defendants' third assignment of error, as Mr. Duet was assured numerous times by Mr. Landry that it was a mistake and that he would pay any such taxes purportedly due on that income.