text:
    IN RE: HARRIER TRUST
    18-667
    Court of Appeal of Louisiana, Third Circuit.
    October 17, 2018 Rehearing Denied October 31, 2018
   Wilford D. Carter, Wilford Carter Law, 1025 Mill Street, Lake Charles, LA 70601, (337) 564-6990, COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

Philip A. Franco, Leigh Ann Schell, Jeffrey E. Richardson, Adams and Reese LLP, 4500 One Shell Square, New Orleans, LA 70139, (504) 581-3234, COUNSEL FOR RESPONDENT: Adam P. Johnson, Edward Alexander

Hunter W. Lundy, Matthew E. Lundy, Rudie R. Soileau, Jr., T. Houston Middleton IV, Daniel A. Kramer, Lundy, Lundy, Soileau & South, L.L.P., P. O. Box 3010, Lake Charles, LA 70602, (337) 439-0707, COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

Walter M. Sanchez, Alexander L. Reed, The Sanchez Law Firm, L.L.C., 1200 Ryan Street, Lake Charles, LA 70601, (337) 433-4405, COUNSEL FOR RESPONDENT: Elaine T. Marshall

Michael Reese Davis, Tim P. Hartdegens, Hymel, Davis & Petersen, L.L.C., 10602 Coursey Blvd., Baton Rouge, LA 70816, (225) 298-8118, COUNSEL FOR RESPONDENT: Elaine T. Marshall

Todd Clemons, Janet D. Madison, Todd Clemons & Associates, APLC, 1740 Ryan Street, Lake Charles, LA 70601, (337) 477-0000, COUNSEL FOR RESPONDENT: Elaine T. Marshall

Jeffrey W. Chambers, Chambers Law Firm, 711 Louisiana Street, Suite 2150, Houston, TX 77002-2720, (713) 438-5244, COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

John P. Lahad, Susman Godfrey LLP, 1000 Louisiana Street, Suite 5100, Houston, TX 77002, (713) 653-7859, COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

Christopher J. Akin, 2100 Ross Ave., Suite 2700, Dallas, TX 75201, (214) 981-3812, COUNSEL FOR RESPONDENT: Elaine T. Marshall

Court composed of John D. Saunders, Marc T. Amy, and Billy H. Ezell, Judges.

SAUNDERS, Judge.

Relator, Preston L. Marshall (Preston), in his capacity as beneficiary of the Harrier Trust, seeks writs from two rulings by the Fourteenth Judicial District Court, Calcasieu Parish, the Honorable Anne Simon (Judge Simon), presiding ad hoc, and the Honorable Sharon Darville Wilson (Judge Wilson), presiding.

Preston seeks expedited review of the preliminary injunction entered by Judge Wilson, enjoining him from participating in litigation regarding administration of the Harrier Trust outside of the Fourteenth Judicial District Court in Louisiana. Preston has filed two supplements to the writ application. The notice of intent and this writ application were timely filed.

Preston filed an unopposed motion to have part of the writ application placed under seal.

There are three motions for leave to file supplemental briefs that have been referred to the merits.

STATEMENT OF THE CASE

This matter arises out of the creation of the Harrier Trust in the last will and testament of E. Pierce Marshall, Sr. (Pierce Sr.), which is dated May 5, 2006. Pierce Sr. died on June 20, 2006, and succession proceedings were opened in Harris County, Texas, by his spouse, Elaine, who is the executrix of the estate and is the trustee of the Harrier Trust.

Matters related to the Harrier Trust have been before this court on three prior writ applications. Two appeals regarding the Harrier Trust are pending.

Related litigation has been before this court on several other matters. Further, a suit is pending in Dallas, Texas, and four suits are pending in the Probate Court for Harris County, Texas.

The Harrier Trust was set up for Preston's benefit. Elaine, Preston's mother, alleges that Preston demanded certain distributions from the Harrier Trust for his support, maintenance, and welfare but refused to provide the information necessary for Elaine to evaluate the request. Elaine avers that any distributions of principal to Preston are within her sole and absolute discretion under the provisions of the Harrier Trust. Preston alleges he instituted this litigation when his mother fired him from the family business in July 2015.

On October 12, 2015, within the Texas succession proceedings, Preston filed the 401 Suit against Elaine in her capacity as the executrix of Pierce Sr.'s will. It sought to compel a statutory accounting by Elaine, to gain access to the books and records of the Harrier Trust, and (as amended) to compel Elaine to perform all duties required under the Harrier Trust.

On October 29, 2015, Preston filed the 402 Suit seeking a declaratory judgment against Pierce Jr. and Elaine. Preston sought an order declaring that he was entitled to certain disclosures regarding the Harrier Trust and an order compelling Pierce Jr. and Elaine to make those disclosures.

On July 19, 2016, Preston sought an injunction against Elaine in Texas. In response, Elaine began the litigation regarding the Harrier Trust in Louisiana by filing a petition for declaratory relief on July 22, 2016. She alleged that Preston's actions prevented her from presenting her accounting for approval and sought guidance for the performance of her obligations under the Harrier Trust. Elaine also sought a declaration that a judgment rendered in Wyoming in the matter captioned "In the Matter of EPM Fiduciary Service Company, LLC, Trustee" was entitled to full faith and credit in Louisiana.

Preston intervened in the Louisiana suit and asserted exceptions of lis pendens, improper venue, and lack of subject matter jurisdiction, which were denied by the trial court. This court denied Preston's writ application.

Elaine filed a motion for partial summary judgment seeking approval of the December 2016 appointment of Alexander, Johnson, Dr. Wayne S. Thompson, Judge Lilynn Cutrer (Fourteenth Judicial District Court), and Dr. Karen Aucoin as co-trustees of the Harrier Trust. The hearing of that motion was stayed by Judge Wilson after Preston obtained injunctive relief that enjoined Elaine from taking any action with the co-trustees regarding the Harrier Trust outside of the Texas court and suspending the trustee powers, obligations, responsibilities and rights to compensation. The Texas court found that "Preston ha[d] demonstrated a likelihood of success on the merits."

On September 29, 2017, Preston sought a TRO and other injunctive relief as well as a declaration that the appointment of the five purported co-trustees violated the terms of the Harrier and Falcon Trusts. (The 404 Suit.) In the 404 Suit, Preston obtained an order compelling the production of certain documents prepared by Johnson (the Johnson Documents). In Louisiana, the co-trustees obtained a protective order regarding the Johnson Documents.

On November 7, 2017, the Texas court issued a temporary injunction enjoining the purported co-trustees from "[a]ttempting to circumvent the Court's jurisdiction over the Harrier and Falcon Trust[s] by 1) seeking validation of the compensation provisions..." The Texas court made a specific finding of fact that "[t]he Louisiana lawsuit is a threat to the proper jurisdiction" of the Texas court. Nonetheless, Johnson and Alexander had their motion for partial summary judgment put back on the docket, and Judge Wilson granted it by judgment signed January 11, 2018. That judgment is the subject of a pending appeal in 18-324.

This court vacated a TRO enjoining Preston and anyone acting in concert with him from filing, proceeding with, or participating in any litigation or proceeding related to the administration of the Harrier Trust outside of the Louisiana court. This court's ruling was based on the finding that Alexander and Johnson and the trial court failed to comply with the requirements of La.Code Civ.P. arts. 3603 and 3604. See 18-466.

Preston sought to recuse Judge Wilson because she is presiding over this case which involves another judge from the Fourteenth Judicial District Court, Judge Cutrer, who was made a co-trustee of the Harrier Trust. According to Preston, when Judge Wilson granted the TRO, it benefited Judge Cutrer.

The motion to recuse was assigned to Judge Clayton Davis (Judge Davis), who had been a partner in one of the firms representing Preston. Judge Davis recused himself, and sent an order to the Louisiana Supreme Court requesting that an ad hoc judge be assigned. Elaine took a writ directly to the Louisiana Supreme Court asking that Judge Davis' order be vacated because it was highly critical of Judge Cutrer and included his own narrative of the case. The Louisiana Supreme Court vacated Judge Davis' order. In Re: Harrier Trust , 18-1090 (La. 7/13/18), 248 So.3d 1285. Preston's motion to recuse was then assigned to Judge Simon, who was appointed ad hoc by the Louisiana Supreme Court.

A hearing was held on July 23, 2018, and Judge Simon denied the motion on the ground of waiver because motions to recuse are waived if not filed prior to trial or hearing once the alleged facts supporting the motion are known. See Gaspard v. Horace Mann Insurance Company , 17-1140 (La.App. 3 Cir. 5/9/18), 247 So.3d 778. Preston proffered the testimony of Judge Davis, who stated that he became aware of Judge Cutrer's appointment as co-trustee of the Harrier and Falcon Trusts in January of 2017. He stated that Judge Wilson told him that she had spoken to Judge Cutrer and that Judge Cutrer had assured her that there was no issue. Judge Cutrer allegedly testified that she had not discussed her appointment with any of the judges at the Fourteenth Judicial District Court.

No writ was initially filed with respect to this ruling, and Preston filed a second motion to recuse alleging actual bias based on the alleged ex parte communication described by Judge Davis. Judge Wilson stated that the conversation as alleged did not occur. Judge Wilson stated that in her capacity as Chief Judge of the Fourteenth Judicial District Court, she relayed Judge Davis' concerns to Judge Cutrer. Judge Cutrer responded to Judge Wilson by stating that she, Judge Cutrer, had sought an opinion from an ethics expert, and based on that, Judge Cutrer did not feel that there was any violation of the Code of Judicial Conduct. Judge Wilson did not assign the motion to recuse to another judge and denied it, stating that Preston "failed to state a valid basis for recusal."

Alexander and Johnson argue that Preston's motions to recuse are merely stalling tactics designed to give him time to get a TRO from the Texas courts before they could get one in Louisiana. They point out that when the motion for summary judgment was initially set for hearing, Preston sought and received a stay allegedly to conduct discovery. During that stay, Preston did depose Judge Cutrer, but he also sought and obtained injunctive relief in the Texas court as discussed above.

On August 7, 2018, this court upheld Judge Wilson's denial of the motion to recuse. See 18-612. Preston filed a writ application with the Louisiana Supreme Court on September 6, 2018, which is still pending. Now, Preston challenges Judge Simon's denial of his motion to recuse.

Also, on August 7, 2018, Judge Wilson granted a TRO after a phone conference. Then, on August 16, 2018, Judge Wilson granted a preliminary injunction enjoining Preston from participating in any proceedings related to the administration of the Harrier Trust anywhere other than the Fourteenth Judicial District Court. This ruling is the subject of the present writ application and an unlodged appeal.

This court calls up writ application 18-667 for the purpose of issuing a written opinion. We find that there is no need for additional briefings or oral argument.

SUPERVISORY RELIEF

"An appeal may be taken of right from an order or judgment relating to a preliminary or final injunction[,] but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders." La.Code Civ.P. art. 3612(B) (emphasis added). While "[a] preliminary injunction is an interlocutory procedural device designed to preserve the status quo between the parties pending a trial on the merits[,] ... a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal." Bernhard MCC, LLC v. Zeringue , 18-30, p. 4 (La.App. 5 Cir. 5/30/18), 250 So.3d 342, 347.

Louisiana Code of Civil Procedure Article 3612 uses the permissive "may" rather than " 'shall[,]' indicating than an appeal is permitted, but not mandated, to seek review of judgments relating to injunctions." Mik-Lee, Inc. v. City of New Orleans , 581 So.2d 261, 264 (La.App. 4 Cir. 1990), writ denied , 576 So.2d 28 (La.1991). See also La.Const. Art. 5 § 10 and La.Code Civ.P. art. 2201. "If a party elects to seek review by applying for supervisory writs, it must be done within the same time limits allowed for an appeal of the judgment complained of, which is 15 days under La.C[ode] C[iv.]P. art. 3612." First Bank and Trust v. Duwell , 11-104, p. 5 (La.App. 4 Cir. 5/18/11), 70 So.3d 15, 17 n.5.

Alexander and Johnson object to this court's review of the preliminary injunction under its supervisory jurisdiction and argue that a review by appeal would give the parties the opportunity to have oral argument. They also note that Preston was granted an order of appeal on August 22, 2018, by the trial court.

The notice of appeal was received by this court's clerk of court on August 30, 2018. The notice of intent to file this writ application was filed on August 22, 2018, the same day that the order of appeal was signed in the trial court. The order setting a return date of September 15, 2018, was also signed on August 22, 2018. The writ application was filed on August 29, 2018, within fifteen days of the issuance of the preliminary injunction.

Based on the above cited cases, we find that review under this court's supervisory jurisdiction is appropriate because it is probable that by the time any appeal of the preliminary injunction would be completed, the issues presented therein would be moot.

Alexander and Johnson oppose the request for expedited consideration and the writ application because the Texas court issued judgments that the Texas cases on appeal are "abated, treated as closed cases, and removed from the court's active docket" in deference to the preliminary injunction issued by the Louisiana court. They allege that because they have challenged the Texas court's jurisdiction and are appearing in those proceedings under a "Special Appearance," they can take no action in the Texas proceedings without waiving jurisdiction.

Preston, however, contends that Elaine withdrew her plea as to lack of jurisdiction in her second amended answer and that two judges who have presided over the Texas proceedings denied Elaine's assertions of lack of jurisdiction over the Harrier Trust.

In asserting that expedited consideration is not warranted, we find that Alexander and Johnson fail to disclose that the abatement orders all require Preston to advise the Texas court of "the status of the preliminary injunction by October 29, 2018 , or within 10 days of any material change in the status of the preliminary injunction, whichever is sooner" because "[t]he appeals will be reinstated on [the] court's active docket on or after October 29, 2018, or sooner if appropriate."

But, Preston also leaves out key details in his assertion that expedited consideration is necessary because Alexander and Johnson are threatening him with contempt proceedings. There was a deadline for Preston to file a brief right after the issuance of this injunction. Rather than miss the deadline, Preston petitioned the Texas court for an abatement order. What Preston fails to mention is that he sought abatement of only one of the Texas suits. Alexander and Johnson then asserted that they would seek contempt sanctions if Preston did not follow the same course of action in all of the Texas suits.

Although there are no currently scheduled trial or hearing dates in this suit, we find that the expeditious consideration of these writ applications is warranted because of the pending appeals in the Louisiana court, because of the appeals waiting to be placed back on the active docket of the Texas court, and because of the recusal issue, which calls into question the validity of any rulings made by Judge Wilson while the outcome of the recusal issue is pending.

ON THE MERITS

Motions for Leave

Preston filed a sixteen-volume writ application, a two-volume first supplement, a one-volume second supplement, and a reply to Alexander and Johnson's opposition. Alexander and Johnson filed an opposition and a supplemental opposition.

A. Preston filed a motion for leave to file a supplemental reply brief in order to respond to Alexander and Johnson's contention that Spinosa v. Spinosa , 05-1935 (La. 7/6/06), 934 So.2d 35, is no longer good law. As such, no additional brief is needed in this regard since this court is capable of making that determination without a brief filed by Preston. Therefore, this motion is denied.

B. Alexander and Johnson filed a motion for leave to file a response to Preston's supplemental reply asserting that if Preston was allowed to file his supplemental reply, they should be allowed to respond to it because Preston included citations to provisions of the trust code that he had not previously cited. Since Preston's motion is denied, this motion is denied.

C. Preston filed a motion for leave to file a second supplemental reply asserting that if Alexander and Johnson get to file another brief, so should he. The proposed brief is two paragraphs and simply says that Alexander and Johnson are attempting to have the last word. We deny this motion.

18-667 Preliminary Injunction

"[A] trial court has broad discretion in deciding whether to grant injunctive relief." Dupre v. Schering-Plough Health Care Prod., Inc. , 95-213, p. 3 (La.App. 3 Cir. 5/31/95), 656 So.2d 786, 788.

Judge Wilson granted a preliminary injunction "enjoining and prohibiting Preston Marshall, and all persons in active concert or participation with him, from filing, proceeding with or participating in any litigation or proceeding related to the administration of the Harrier Trust outside of this Court, including but not limited to the appointment of the co-trustees, compensation of the co-trustees, distributions from the accumulations of the Trust, and powers, rights, responsibilities, and fiduciary duties of the co-trustees under the Trust."

"A mandatory injunction may not be issued on a merely prima facie showing that the party seeking the injunction can prove the necessary elements; instead, the party must show by a preponderance of the evidence at an evidentiary hearing that he is entitled to the preliminary injunction." City of New Orleans v. Board of Dir. of La. State Museum , 98-1170, p. 11 (La. 3/2/99), 739 So.2d 748, 756.

Judge Wilson specifically stated that she was entering a prohibitory preliminary injunction rather than a mandatory injunction as requested by Alexander and Johnson because they wanted to limit testimony to affidavits rather than present live testimony. "The court may hear an application for a preliminary injunction ... upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases." La.Code Civ.P. art. 3609.

Preston argues that Judge Wilson abused her discretion in granting this injunction because: (A) it was improperly based on a finding that the Harrier Trust has a forum selection clause; (B) it is an improper anti-suit injunction since the Texas suit was the first-filed suit which did not involve the same parties or issues as the Louisiana suit; (C) Alexander and Johnson did not show irreparable harm and did not show that they were likely to prevail on the merits; and (D) the injunction is overbroad and vague and interferes with the Texas Probate Court's jurisdiction over Pierce Sr.'s estate. Preston also asserts that Alexander and Johnson had been enjoined by the Texas court from taking the action they did in seeking the injunction.

We find that Preston is misguided in asserting that the scope of the injunction prevents him from acting in any proceeding that in any way involves the Harrier Trust. This injunction specifically limits its application to "any litigation or proceeding relating to the administration of the Harrier Trust[.]" (Emphasis added). The courts of this state have recognized that other Marshall family trusts have been set up under Louisiana law and that Louisiana has jurisdiction in litigation involving those trusts but not over the estate of the deceased and that the two can be totally separate things. See In Re: Howard Marshall Charitable Remainder Annuity Trust , 97-1718 (La. 3/4/98), 709 So.2d 662.

A. Forum Selection Clause

Judge Wilson noted that it was her opinion that the Harrier Trust document speaks for itself and is controlling since it states that it is to be governed under Louisiana Law. Preston argues that this provision is not a broad forum selection clause but merely states that the trustee must apply to the Fourteenth Judicial District Court when seeking instructions regarding the administration of the trust. According to Preston, the clause binds only the trustee.

Preston fails to cite the rest of the language contained in the Harrier Trust Agreement. The Harrier Trust Agreement states that Pierce Sr. is "availing [him]self of the laws of the State of Louisiana and, in particular, the Louisiana Trust Code, Louisiana Revised Statute[s] 9:1721, et seq., as amended[.]" Under the section entitled "Governing Law," the Harrier Trust Agreement states: "The Trust shall be governed under the Louisiana Trust Code, Louisiana Revised Statutes 9:1721, et seq., as amended. The Trustee shall apply to the 14th Judicial District Court for Calcasieu Parish, Louisiana, for instructions regarding any questions that might arise regarding administration of the Trust."

The Harrier Trust is an inter vivos trust. The trust was created prior to Pierce Sr.'s death and was not created by donation mortis causa. La.R.S. 9:1734.

Alexander and Johnson cite the Louisiana Trust Code at La.R.S. 9:2235(A)(1) : "In the case of an inter vivos trust, the proper court shall be the district court of any parish that the trust instrument effectively designates as the proper court." This provision regarding "the proper court" was enacted by 2010 La. Acts No. 390, § 1. It applies "to all trusts, whether created before or after the effective date of this Act[.]" Id.

Alexander and Johnson contend that this overruled Spinosa , 934 So.2d 35, on which Preston relies. Preston asserts that La.R.S. 9:2235 is a definitional clause that has nothing to do with venue and, therefore, cannot be a forum selection clause. Johnson and Alexander allege that at the time Spinosa was decided, La.R.S. 9:2235 was worded differently and that there was no other language in the Trust Code that equated "proper court" to venue. After the 2010 amendments to the Trust Code, Alexander and Johnson assert that the very language that Spinosa said did not exist was incorporated into La.R.S. 9:2235, and said language tracks the venue provision found in La.Code Civ.P. art. 41. Alexander and Johnson specifically cite the testimony of the bill's author that his intent was to provide for venue of an inter vivos trust.

Based on the foregoing arguments, we find that Judge Wilson did not err in finding that the proper forum for litigation regarding the administration of the Harrier Trust is the Fourteenth Judicial District Court.

B. Anti-Suit Injunction

In Dupre , 656 So.2d 786, the first filed suit was in Tennessee (where the defendant's corporate headquarters was located), and the parties conceded that the two suits were virtually identical. The trial court issued an injunction enjoining the plaintiffs "from proceeding with the Tennessee lawsuit or any other lawsuit against the defendant in any court other than the 27th Judicial District Court" of Louisiana. Id. at 787. The defendant alleged that the plaintiffs were attempting to avoid the prescriptive period provided under Louisiana law, but this court noted that the defendant was attempting to avoid the laws of its home state. This court found that the defendant was not entitled to injunctive relief but stayed the Louisiana proceedings pending the dismissal or other termination of the suit in Tennessee. The stay was lifted on rehearing because it granted the defendant relief to which it would not otherwise be entitled. This court's decision turned on the fact that the first-filed suit was in Tennessee.

In this case, the 401 Suit was the first filed. The 402 Suit was next. Neither of these suits addresses the appointment or payment of co-trustees in the Harrier Trust because Elaine had not taken any action to appoint co-trustees at the time the suits were filed. We find that these suits do involve matters that relate to the administration of the Harrier Trust because they seek to compel Elaine to provide accountings for it, to make certain disclosures about it, and to have her perform her duties as required by it.

Almost a year after the 402 Suit was filed, Elaine brought the present action in the Louisiana court. Elaine then asserted that the Texas probate court lacked jurisdiction over the Harrier Trust, but, as stated above, the two Texas judges that have presided over the succession proceedings have rejected that argument.

Next, Elaine appointed the five purported co-trustees. Preston then sought and was granted injunctive relief in the Texas probate court. That is when Alexander and Johnson joined the suit in Louisiana. A few months later, Preston filed the 404 Suit.

This court stated that "as a general rule, a pending action cannot be enjoined in a separate action." Dupre , 656 So.2d at 788. "Louisiana jurisprudence clearly supports the action of a trial court in appropriate circumstances in enjoining the prosecution of a suit subsequently filed in another state involving the same controversy." Cajun Elec. Power Coop., Inc. v. Triton Coal Co. , 590 So.2d 813, 816 (La.App. 4 Cir. 1991) (emphasis added). "[I]njunctions have been granted against suits in the courts of another state to prevent vexatious harassment, oppression, or fraud, unconscionable or inequitable advantage, irreparable injury, evasion of domiciliary laws, etc. However, each case must be determined by its own facts." Missouri Pac. Ry. Co. v. Harden , 158 La. 889, 105 So. 2, 4 (La.1925).

An anti-suit injunction should issue where "[t]he two suits are clearly duplicative, and permitting both suits to continue only thwarts the legitimate effort to avoid a multiplicity of lawsuits for the benefit of both the litigants and the courts." Cajun Elec. , 590 So.2d at 818. The courts do not want to promote the multiplicity of suits because they "are expensive for the litigants and an unnecessary duplication of judicial time and effort[.]" Transamerica Ins. Co. v. Whitney Nat'l Bank of New Orleans , 251 La. 800, 206 So.2d 500, 502 (La.1968).

On January 3, 2017, before the 404 Suit was filed, Judge Wilson denied several exceptions filed by Preston and stated: "I have actually looked at what the filings are in Harris County[,] and the objects of those suits and the rulings that are going to be called on the Judge in Texas to make are different: and Louisiana, in this Court's opinion, is controlling." All five of the purported co-trustees are parties in only one of the Texas probate proceedings. They are not all parties in the Louisiana suit. But, the single issue concerning the propriety of the appointment of the co-trustees is common to the Harrier Trust litigation in Louisiana and the 404 Suit. Of the two, the Louisiana litigation regarding the Harrier Trust was the first filed. However, the preliminary injunction is not limited to the 404 Suit. The 401 and 402 Suits relate to the administration of the Harrier Trust as noted above and as contemplated by the injunction, but they also relate to Elaine's duties as executrix of Pierce Sr.'s estate. Thus, Preston cannot be enjoined from pursuing his claims against Elaine in her capacity as executrix simply because that necessarily involves the administration of the Harrier Trust.

Moreover, the injunction only bars Preston's participation in any litigation related to the administration of the Harrier Trust in any court outside the Fourteenth Judicial District Court. It places no such restriction on Elaine or the co-trustees. Accordingly, we find that the injunction is overbroad. For these reasons, we also find that it was an abuse of discretion for the trial court to issue this preliminary anti-suit injunction. See Dupre , 656 So.2d 786.

C. Irreparable Harm and Likelihood to Prevail on the Merits

Our finding directly above in B. Anti-Suit Injunction that the trial court abused its discretion in granting a preliminary injunction that was overbroad pretermits this discussion.

D. Interference with Texas Probate Court's Jurisdiction

In granting the preliminary injunction, Judge Wilson did state that "[t]here is no part of this Court that intends on infringing on the jurisdiction of the succession of [Pierce Sr., Preston's father,] that is pending in the State of Texas, the administration, that is not the purview of this court." The Louisiana Supreme Court has recognized that the Louisiana court's jurisdiction over the Howard Marshall Charitable Remainder Annuity Trust by virtue of the fact that it was established by J. Howard Marshall, II (Preston's grandfather), under Louisiana law did not give Louisiana jurisdiction over the succession proceedings. In Re: Howard Marshall Charitable Remainder Annuity Trust , 97-1718 (La. 3/4/98), 709 So.2d 662.

Further, Preston's argument that the Harrier Trust cannot be separated from Pierce Sr.'s succession is overreaching. The Harrier Trust, along with the EPM Marital Trust and the Osprey Trust (for the benefit of Pierce), was made a beneficiary of the Staurolite 2006 Grantor Retained Annuity Trust. The Staurolite is only one of seven or so annuity trusts that Pierce Sr. had. So, Pierce Sr.'s estate might make up a large part of the Harrier Trust once it passes through the EPM Marital Trust, but that will not occur until Elaine dies. The Harrier Trust Agreement specifically states that it is set up with $1,000.00 and that other property may be added by the Settlor (Pierce Sr.) or others. Elaine alleges that she has made contributions from her separate property so that the Harrier Trust now contains upwards of $20 million. Conversely, in 17-98, In Re: Falcon Trust , which is also a trust set up for Preston's benefit, Elaine's counsel noted that the money in the Falcon Trust came mostly from Pierce Sr.

After due consideration of the above, we find the following:

MOTION TO SEAL GRANTED. The motion of Preston L. Marshall to seal pages 369-393 of his writ application is granted, and those documents are ordered to be filed under seal.

MOTION FOR LEAVE TO FILE SUPPLEMENTAL REPLY BRIEF ON BEHALF OF PRESTON L. MARSHALL DENIED.

MOTION FILED BY EDWARD ALEXANDER AND ADAM P. JOHNSON SEEKING LEAVE TO FILE A RESPONSE TO THE SUPPLEMENTAL REPLY DENIED.

MOTION FOR LEAVE TO FILE A SECOND SUPPLEMENTAL REPLY

BRIEF ON BEHALF OF PRESTON L. MARSHALL DENIED.

WRIT GRANTED AND MADE PEREMPTORY . We find that the trial court abused its discretion in entering an anti-suit injunction in this case. Dupre v. Schering-Plough Health Care Prod., Inc. , 95-213, (La.App. 3 Cir. 5/31/95), 656 So.2d 786, 788. The judgment of the trial court issuing a preliminary injunction against Preston L. Marshall is reversed, and the injunction is vacated.

Amy, J., concurs in the result.

      See 17-103, 18-466, and 18-612.

      See 18-324.

      These are: (1) the succession proceedings for Pierce Sr. (No. 365,053); (2) No. 365053-401 (Texas Fourteenth Court of Appeals numbers 14-17-839, 14-18-94, 14-18-95, 14-18-425, and 14-18-466), the 401 Suit; (3) No. 365053-402 (Texas Fourteenth Court of Appeals number 14-18-425), the 402 Suit; and (4) No. 365053-404 (Texas Fourteenth Court of Appeals number 14-17-930), the 404 Suit.

      EPM Fiduciary Service Company, LLC, is the trustee of the EPM Marital Income Trust, which is a Wyoming Trust. The Harrier and Osprey Trusts are the remaindermen who are to receive distribution of the trusts' assets following Elaine's death.

      The injunction also enjoined the purported co-trustees from taking certain other actions. The Texas court, in issuing the injunction, also made a finding that "Preston is likely to succeed on his claim that compensation provisions ... violate the terms of the Trusts." The compensation package for the co-trustees of the Harrier Trust is estimated to be $20-30 million on an annual basis. Alexander and Johnson contend that the amount of compensation has not been determined.

      Similar trusts were set up for Preston's brother, Pierce.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    LANIE FARMS, INC. v. CLECO POWER, LLC, et al.
    18-285
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
    James Aristide Holmes, Nicholas P. Arnold, Christovich & Kearney, LLP, 601 Poydras Street - Suite 2300, New Orleans, LA 70130, Telephone: (504) 561-5700, COUNSEL FOR: Defendants/Appellees - Cleco Power, LLC, Utility Lines Construction Services, Inc. d/b/a Highlines Construction Company, Inc.
    Joseph A. Tabb, P. O. Box 766, Franklin, LA 70538, Telephone: (337) 828-0454, COUNSEL FOR: Plaintiff/Appellant - Lanie Farms, Inc.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   THIBODEAUX, Chief Judge.

Plaintiff, Lanie Farms, Inc. (Lanie Farms), filed suit against CLECO Power, LLC (CLECO) and Utility Lines Construction Services, Inc. d/b/a Highlines Construction Company, Inc. (Highlines), seeking damages for the economic losses and remediation expenses it incurred as a result of Defendants' construction and installation of new electrical poles and power lines along a servitude that traversed property farmed and leased by Lanie Farms. During trial, Defendants moved for involuntary dismissal. The trial court denied the motion and ultimately ruled in Lanie Farms' favor, awarding $38,000.00 in damages plus interest and costs. Lanie Farms then moved for a new trial on the issue of damages only. After the trial court denied the motion, Lanie Farms filed its appeal to this court, challenging the trial court's general damage award as well as its failure to grant a new trial. CLECO and Highlines answered the appeal, assigning as error the trial court's denial of their motion for involuntary dismissal and its casting Defendants in judgment.

After reviewing the record evidence, we find no manifest error or abuse of discretion in the trial court judgment. We affirm.

I.

ISSUES

In its appeal, Lanie Farms asks this court to consider:

(1) whether or not the court erred in awarding $38,000.00 in general damages;
(2) whether or not the court erred in not awarding damages for Right of Way Mitigation Efforts in the amount of $63,755.00;
(3) whether or not the court erred in not awarding damages for Land Leveling in the amount of $36,750.00;
(4) whether or not the court erred in not awarding damages for Crop Damages, on the Right of Way, in the amount of $85,121.00;
(5) whether or not the court erred in not awarding damages for Crop Damages, off the Right of Way, in the amount of $82,608.00;
(6) whether or not the court erred in not award[ing] damages for Tissue Culture Seed Replacement in the amount of $49,572.00;
(7) whether or not the court erred in not awarding damages for Soybean Losses in the amount of $252.00; and
(8) whether or not the court erred in not awarding a new trial?

In their answer, CLECO and Highlines raise two issues:

(1) the trial court erred in denying their La.Code Civ.P. art. 1672(B) Motion for Involuntary Dismissal; and
(2) the trial court erred when it cast them in judgment because the sole cause of action Lanie Farms pled in its Petition for Damages was based upon negligence, but it presented no evidence to prove they were negligent.

II.

FACTS AND PROCEDURAL HISTORY

Lanie Farms is a sugarcane and soybean farming company owned and operated by Al Lanie. The 1600 acres it farms are leased from Young Industries, Inc., and from Michaela Bourque LaPoint, Cynthia B. Duhon, William C. Burley, Brenda J. Burley, Benjamin F. Burley, and M. F. Burley, III.

In December 2009, Benjamin F. Burley and his wife, Debbie Burley, along with Francis Marion Burley, III, entered into a servitude agreement with CLECO. In March 2010, Young Industries, Inc., entered into an electric power line right-of-way easement with CLECO (the Agreement). Both agreements granted CLECO the right to construct and install new electrical poles and power lines on designated rights-of-way that traversed the land leased and farmed by Lanie Farms.

Prior thereto, in May 2009, CLECO contracted with Ampirical Solutions, LLC to provide general contracting services to construct and install power lines on land around Youngsville, Louisiana, including the property upon which Lanie Farms conducted its farming operations. Thereafter, Ampirical Solutions entered into a subcontract with Highlines to perform the actual work of constructing and installing the new electrical poles and lines along the designated rights-of-way. Highlines conducted its operations on the farmland leased by Lanie Farms from October 2010 until May 2011.

Lanie Farms subsequently filed suit against CLECO and Highlines, seeking damages for the economic losses and remediation expenses it incurred as a result of Defendants' construction operations. In its petition, Lanie Farms alleged Defendants' negligence but also recited the provision in the Agreement whereby CLECO agreed to "pay for any and all damages to property or crops caused [by its] activities."

All parties stipulated that 6.6 acres of plant cane and 1.5 acres of first stubble cane were destroyed within the right-of-way. They also stipulated to the acreage outside the right-of-way-15 acres-that Lanie Farms further claimed were damaged, but the parties did not stipulate as to whether there was damage to those 15 acres or to the cause of any alleged damage.

Prior to trial, CLECO and Highlines filed their motion for declaratory relief, acknowledging the servitude agreements created a stipulation pour autrui in favor of Lanie Farms and requesting a declaration on the proper measure of damages-cost or investment (gross value) versus market (net value), for loss of growing crops. They also sought a declaration that Lanie Farms was not entitled to costs or attorney fees under the agreements. In its opposition to the motion, Lanie Farms stated that its cause of action sounded solely in negligence, not contract. Agreeing with Lanie Farms' classification of its own action, Defendants then withdrew their motion for declaratory judgment.

The matter proceeded to a bench trial, and after Lanie Farms rested its case, CLECO and Highlines moved for involuntary dismissal, arguing that Lanie Farms had failed to prove Defendants' negligence or to establish damages. The trial court denied the motion and ultimately ruled in Plaintiff's favor, awarding $38,000.00 in damages plus interest and costs. In so ruling, the trial court reasoned:

At any rate, the Court was impressed with the testimony of Mr. Mclean; quite impressive, and the Court will note that during the photographs that there were no damages outside of the right-of-way to the plaintiff's property. The only damage that was done was to the areas where the right-of-way was granted. So at any rate, the Court realizes that Mr. Viator - - Dr. Viator assessed the possible damage, the $346,000.96. I just think that's unreasonable after reviewing the photographs. I didn't see any damage at all, other than to the area of the servitude. Having said that, Dr. - - Mr. Mclean arrived at a figure of $30,827, which I think is - - is way more in line than what Dr. Viator had.

Lanie Farms then moved for a new trial solely on the issue of damages, which the trial court denied, reasoning, "The Court does not see where our ruling does not support a fair interpretation of the evidence presented."

On appeal, Lanie Farms now assigns as error the trial court's general damage award and failure to award a new trial. In their answer to the appeal, Defendants assign as error the trial court's denial of their motion for involuntary dismissal as well as trial court's casting them in judgment.

III.

STANDARD OF REVIEW

In light of the "much discretion" afforded to the judge or jury in the assessment of damages, an appellate court reviews general damage awards under an abuse of discretion standard. La.Civ.Code art. 2324.1 ; Coco v. Winston Indus., Inc. , 341 So.2d 332 (La.1977). "The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion." Martin v. Heritage Manor S. , 00-1023, p. 6 (La. 4/3/01), 784 So.2d 627, 632. An appellate court reviews a trial court's determination to grant or deny a motion for involuntary dismissal for manifest error. Biagas v. St. Landry Parish Sheriff Office , 13-642 (La.App. 3 Cir. 12/11/13), 132 So.3d 971, writ denied , 14-73 (La. 3/14/14), 137 So.3d 15. All findings of fact are likewise subject to manifest error review by this court. Rosell v. ESCO , 549 So.2d 840 (La.1989).

IV.

LAW AND DISCUSSION

In Guillory v. Lee , 09-75, pp. 14-16 (La. 6/26/09), 16 So.3d 1104, 1117, our supreme court extrapolated on an appellate court's role in reviewing quantum determinations:

The role of an appellate court in reviewing a general damages award, one which may not be fixed with pecuniary exactitude, 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. This court has long held true to the following principle:
[b]efore a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.
Wainwright[ v. Fontenot] , 00-0492, p. 6 [ (La. 10/17/00) ], 774 So.2d [70,] at 74 (quoting Coco v. Winston Indus., Inc. , 341 So.2d 332, 334 (La.1977) (internal citations omitted) ). See also Miller v. LAMMICO , 07-1352, p. 28 (La. 1/16/08), 973 So.2d 693, 711 (stating that an appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion and citing Theriot v. Allstate Ins. Co. , 625 So.2d 1337, 1340 (La.1993) ); Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1261 (La.1993) ; Reck v. Stevens , 373 So.2d 498, 501 (La.1979). Furthermore, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO , 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. (citing Arceneaux v. Domingue , 365 So.2d 1330, 1333 (La.1978) and Watson v. State Farm Fire & Casualty Ins. Co. , 469 So.2d 967 (La.1985) ). Moreover, on review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Perkins , 782 So.2d at 612 (citing Ambrose v. New Orleans Police Department Ambulance Service , 93-3099, 93-3110, 93-3112, p. 8 (La. 7/5/94), 639 So.2d 216, 221 ). Reasonable persons frequently disagree about the measure of damages in a particular case. "It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award." Youn , 623 So.2d at 1261.

In calculating its award, this court has also acknowledged, "the trial court has broad discretion in selecting a method of calculating damages to crops." Fenetz v. Stine , 407 So.2d 1381, 1384 (La.App. 3 Cir. 1981).

Lanie Farms argues to this court that it is clearly entitled to $336,427.00 in total damages, and, therefore, the trial court was clearly wrong in awarding only $38,000.00 in general damages. In support of its position, Lanie Farms cites the report and testimony of its expert, Dr. Calvin Viator, who was tendered and accepted as "an expert in the field of agronomy, sugarcane, economics, and basic cane operations." Dr. Viator itemized Lanie Farms' damages as follows: (1) $63,755.00 for right-of-way mitigation efforts; (2) $36,750.00 for land leveling; (3) $85,121.00 for crop damages on the right-of-way; (4) $82,608.00 for crop damages off the right-of-way; (5) $49,572.00 for tissue culture seed replacement; and (6) $252.00 for soybean losses.

However, Defendants' expert, Mr. Paul Mclean, disputed those valuations as well as the measure of damages employed in their calculation. Mr. Mclean, who was tendered and accepted as an expert in land management and business operations, crop damage evaluation, land damage evaluation, restoration activities at the surface operations, and right-of-way practices, opined that Lanie Farms' damages totaled $30,000.00.

Though much is made by the parties regarding the proper measure of damages, i.e. , either gross value or net value, the record evidence demonstrates that while gross value may very well be the "standard" method for calculation in pre-construction settlement negotiations or in leases, this case was not the standard case, nor was the measure of damages contractually agreed to by the parties. Moreover, in the present case, the expert evidence revealed that the net value, which includes the expenses incurred in farming and marketing the cane, was actually a better depiction of the losses sustained; whereas the gross value, which discounted expenses and cost, would amount to a windfall recovery.

What resulted was a conflict in expert testimony, which the trial court resolved in favor of Defendants' expert. There were two equally plausible evaluations of the extent of damages and the method for valuation of those damages. While Lanie Farms recites for this court the testimony and report of its expert and its witnesses, it fails to recite evidence which either discredited the testimony provided by Defendants' expert or demonstrated how his testimony was so internally inconsistent as to render it implausible on its face. Given the much discretion afforded the trial court in assessing and calculating damages and Mr. Mclean's testimony, we cannot say that the trial court abused its vast discretion.

Having found the general damage award was reasonable, we likewise find no abuse of discretion in the trial court's ruling on Lanie Farms' motion for new trial as the trial court's award was clearly not, as Plaintiff alleged, "contrary to the law and the evidence." La.Code Civ.P. art. 1972.

Motion for Involuntary Dismissal

A trial court possesses much discretion in determining whether to grant or deny a motion for involuntary dismissal. Mott v. Babin Motors, Inc. , 451 So.2d 632 (La.App. 3 Cir. 1984). When such a motion is made, the court must evaluate all of the evidence that has been presented and grant the motion if the plaintiff has failed to establish his case by a preponderance of the evidence. La.Code Civ.P. art. 1672(B) ; Crowell v. City of Alexandria , 558 So.2d 216 (La.1990). Thus, a motion for an involuntary dismissal should be denied if the evidence, taken as a whole, indicates that "the fact or cause sought to be proved is more probable than not." Marcotte v. Travelers Ins., Co. , 258 La. 989, 994, 249 So.2d 105, 107 (1971).

CLECO and Highlines argue that the trial court manifestly erred in failing to grant their motion for involuntary dismissal because Lanie Farms only pled a negligence action in its petition for damages, but failed to prove any negligent act that caused its damage. While the record does show that Lanie Farms did not present evidence as to Defendants' negligence, Lanie Farms did submit into evidence the servitude agreements that obligated CLECO to pay for any damages resulting from its construction activities. The Agreement specifically provided:

Grantee shall pay for any and all damages to property or crops caused as a result of Grantee's activities and, upon completion of the work, Grantee agrees to restore the surface of the ground and any roads on the land used by Grantee, as nearly as is reasonably practicable to as good a condition as exists at the time of commencement of the work, at Grantee's sole cost and expense.

Moreover, in its petition, Lanie Farms recited verbatim this contractual provision, which was sufficient enough notice to prompt Defendants' filing of their motion for declaratory judgment wherein they conceded that Lanie Farms was a third-party beneficiary of the agreements and was entitled to damages resulting from their construction activities. Simply because Lanie Farms, in its opposition to that motion, argued its petition did not sound in contract does not render it so. By contractual agreement, CLECO obligated itself to pay for any and all damages resulting from its construction activities. The parties stipulated to the acres of plant cane and first stubble destroyed by Defendants' activities. Therefore, although Lanie Farms did not present evidence of negligence, the agreement along with the parties'

stipulations, the witnesses' testimony, and evidence submitted into the record were sufficient to carry Plaintiffs' burden to withstand a motion for involuntary dismissal at the close of its case. Accordingly, we find no manifest error in the trial court's ruling denying the motion for involuntary dismissal.

As to Defendants' argument that the trial court erred in casting them in judgment, the evidence at trial clearly established that CLECO agreed to "pay for any and all damages to property or crops" resulting from its construction activities. This agreement by its very language "stipulate[d] a benefit for a third person"-in this case the lessee whose crops were destroyed by Defendants' activities for which damage CLECO contractually agreed to pay. La.Civ.Code art. 1978. As the lessee of the property, shown through the admission of the leases, Lanie Farms was entitled to "any and all damages to property or crops caused by" Defendants' activities. Again, the stipulation of the parties to the acreage destroyed as well as the expert testimony and evidence, coupled with the agreements, established by a preponderance of the evidence that Defendants were obligated to pay Lanie Farms for the damages it sustained. Therefore, we find that the trial court did not manifestly err in casting CLECO and Highlines in judgment.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed to CLECO and Highlines.

AFFIRMED.

      The following cases have been recited to this court wherein the various parties, pursuant to the "industry standard," contractually agreed to a gross valuation for crop loss: Campesi v. Margaret Plantation , 417 So.2d 1265 (La.App. 1 Cir.), writ denied , 422 So.2d 163 (La.1982) (pre-job lease agreement); Michigan Wisconsin Pipe Line Co. v. Walet , 225 So.2d 76 (La.App. 3 Cir.), writ refused , 254 La. 835, 227 So.2d 588 (1969) (lease agreement); Landry v. Columbia Gulf Transmission Co. , 148 So.2d 398 (La.App. 1 Cir. 1962) (pre-job agreement).


author: Judge Terri F. Love

text:
    Emily WASHINGTON v. Leon CANNIZZARO
    NO. 2018-CA-0125
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 7, 2018
    Katie Schwartzmann, James W. Craig, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, 4400 S. Carrollton Avenue, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    David M. Fink, THE LAW OFFICE OF BERNARD L. CHARBONNET, JR., A PROFESSIONAL LAW CORPORATION, One Canal Place, 365 Canal Street, Suite 1155, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Edwin A. Lombard, Judge Paula A. Brown, Judge Tiffany G. Chase )
   Judge Terri F. Love

Emily Washington ("Ms. Washington") appeals the trial court's granting of the Orleans Parish District Attorney's dilatory exception of unauthorized use of ordinary proceeding and peremptory exception of no cause of action. The petition is absent of any evidence that Ms. Washington intended to employ ordinary proceedings and not summary proceedings in this case. Further, we find Ms. Washington has set forth sufficient facts in her petition that if proved at trial would entitle her to relief under the law. Accordingly, we reverse the trial court's judgment granting the exceptions of unauthorized use of ordinary proceeding and no cause of action. The matter is remanded for further proceedings in line with this opinion.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

On May 7, 2015, Ms. Washington, an attorney with Roderick and Solange MacArthur Justice Center ("MJC") in New Orleans, submitted to Leon A. Cannizzaro, Jr., in his official capacity as Orleans Parish District Attorney ("District Attorney"), a public records request pursuant to the Public Records Law, La. R.S. 44:1 et seq. The request sought "all records of any subpoenas and subpoenas duces tecum sought by the Orleans Parish District Attorney pursuant to the power granted by Article 66 of the Louisiana Code of Criminal Procedure." In a June 10, 2015 letter that Ms. Washington sent the District Attorney's Office, Ms. Washington indicated that she was informed by letter dated May 11, 2015, that "the Orleans Parish District Attorney does not maintain any database or case management system by which such records could be isolated for [her] review." Believing the District Attorney's response to be a violation of public records law, Ms. Washington made additional attempts via telephone and letter correspondence to obtain the requested public records.

On June 24, 2015, the District Attorney's Office responded, indicating that production of the requested records would be unduly burdensome because it would require the review of thousands of closed files, many of which are stored off-site. The District Attorney stated that compliance with the request would require his office to "manually review thousands of files stored on premises and off-site, the retrieval fee for which is $8.10 per file." The District Attorney further directed Ms. Washington to the Orleans Parish Criminal District Court's Clerk of Court, stating: "the subpoenas/subpoenas duces tecum issued at the request of the Orleans Parish District Attorney's Office are part of the criminal record, and therefore, the Clerk of Court of the Orleans Parish Criminal District Court is the proper custodian of these records."

The District Attorney's letter did not assert that the records do not exist, nor did his office indicate that they did not have possession of any records responsive to Ms. Washington's request. The letter stated instead that it would be burdensome to search for them, and the Clerk of Court would have records in the official court files. Thus, despite Ms. Washington's multiple attempts, the District Attorney did not provide Ms. Washington access to the requested information in his office's possession.

Instead, Ms. Washington was informed that any subpoena would be located at the courthouse, as a judge would have signed it and the clerk would retain a copy as custodian of criminal court records. Consequently, Ms. Washington also served public records requests on every section of Orleans Parish Criminal District Court as well as the Clerk of Court, Arthur Morrell.

In a letter, the Judicial Administrator of Criminal District Court responded on behalf of the judges, collectively, stating that the "these records are not in our custody." Clerk of Court Arthur Morrell responded that his office had no way to identify subpoenas issued pursuant to Article 66 and that 15,000 annual cases would need to be reviewed.

Nearly two years later, Ms. Washington learned through media reports that the District Attorney's Office "has or had a practice of completing Article 66 subpoenas and serving them upon witnesses without securing a judge's signature." Ms. Washington alleges that because they were never authorized by a judge, the Clerk of Court would not have ever come into possession of at least some of the requested documents. Ms. Washington also learned through media reporting that the District Attorney has or had no records maintenance policy with regard to these subpoenas. The District Attorney's Office publicly stated, the subpoenas "were issued by individual prosecutors who decided on their own whether to put them in case files."

On May 12, 2017, Ms. Washington filed a petition for writ of mandamus, seeking a trial court order directing the District Attorney "to disclose the records requested, including all subpoenas issued pursuant to Article 66-both real and fraudulent-or show cause why he should not be ordered to do so."

On June 30, 2017, the District Attorney filed exceptions of unauthorized use of ordinary proceeding, no cause of action, and nonjoinder of a party. Ms. Washington filed her opposition and a hearing on the exceptions was held in October 2017. The trial court granted the District Attorney's exceptions of unauthorized use of ordinary proceeding and no cause of action, dismissing Ms. Washington's petition for writ of mandamus with prejudice. Ms. Washington timely appeals the trial court's ruling.

STANDARD OF REVIEW

The appellate court applies de novo review to the trial court's grant of dilatory exception of unauthorized use of ordinary proceeding because the issue involves a question of law. Wooley v. Lucksinger , 09-0571, p. 49 (La. 4/1/11), 61 So.3d 507, 554 ; Bossier v. Garber , 17-349 (La. App. 3 Cir. 1/10/18), 235 So.3d 1200, 1202. Similarly, we review judgments sustaining a peremptory exception of no cause of action de novo. O'Dwyer v. Edwards , 08-1492, p. 3 (La. App. 4 Cir. 6/10/09), 15 So.3d 308, 309 (citing Tuban Petroleum, L.L.C. v. SIARC, Inc. , 09-0302 (La. App. 4 Cir. 4/15/09), 11 So.3d 519, 522 ).

UNAUTHORIZED USE OF ORDINARY PROCEEDING

In this case, the trial court granted the District Attorney's exception of unauthorized use of ordinary proceedings. The District Attorney contends that the use of ordinary process to obtain production of the requested public records improper under La. R.S. 44:35(C). Specifically, he argues that by requesting discovery prior to a contradictory hearing on the petition for mandamus, Ms. Washington attempts to convert this matter into an ordinary proceeding.

Conversely, Ms. Washington contends that she has not used any improper process, but has complied with public records law and the code of civil procedure. She asserts that the request for limited pre-trial discovery was made necessary by the District Attorney's assertions that a search for the requested information would be overly burdensome and that the District Attorney maintained no formal policy relating to the retention of the requested subpoenas. The District Attorney argues compliance with the records request would require significant time and financial expense. Ms. Washington avers that she seeks an opportunity to traverse the District Attorney's assertion because based on statements his office made to the media, alternative methods for complying with the request are likely to exist.

A review of the record demonstrates that Ms. Washington has not employed any improper process. There are three modes of procedure in civil matters in the trial courts of Louisiana: ordinary, summary, and executory. La. C.C.P. art. 851. Ordinary proceedings "are to be used in the district courts in all cases, except as otherwise provided by law." Id. "Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings." La. C.C.P. art. 2591. Under Louisiana's Public Records Law, "[a]ny suit brought in any court of original jurisdiction to enforce the provisions of this Chapter shall be tried by preference and in summary manner." La. R.S. 44:35(C).

Ms. Washington filed a petition for writ of mandamus requesting relief under Louisiana's Public Records Law. Nothing in the petition suggests that Ms. Washington intended to employ ordinary proceedings and not summary proceedings in this case. The District Attorney claims, by merely requesting pre-trial discovery, Ms. Washington attempted to convert her petition for writ of mandamus into an ordinary proceeding. However, even in cases involving summary proceedings, the rules of ordinary proceedings may also be used. La. C.C.P. art. 2596 ("the rules governing ordinary proceedings are applicable to summary proceedings, except as otherwise provided by law"). Pursuant to article 2596, we find discovery may be scheduled within the scope of a mandamus proceeding. Succession of Gendron , 17-216, p. 10 (La. App. 5 Cir. 12/27/17), 236 So.3d 802, 810 (finding pursuant to article 2596 discovery was "necessary before any contradictory hearing could resolve the claims" raised). Aside from the District Attorney's claim that Ms. Washington seeks pre-trial discovery before the contradictory hearing, there is nothing in the record to support the conclusion that Ms. Washington employed an improper process. In that article 2596 and supporting jurisprudence permit discovery in summary proceedings, we find the trial court erred in granting the District Attorney's dilatory exception. Therefore, we reverse the trial court's ruling on the exception of unauthorized use of ordinary proceedings.

NO CAUSE OF ACTION

The primary issue on appeal is whether the trial court properly granted the District Attorney's exception of no cause of action. Ms. Washington avers the trial court erred in granting the exception of no cause of action because her petition contains all the elements needed to plead a cause of action for mandamus. Moreover, she notes that the objections raised by the District Attorney via his exception of no cause of action are challenges to the merits of the petition which are better suited to be heard at the mandamus proceeding's contradictory hearing.

The purpose of an exception of no cause of action is to determine the legal sufficiency of the petition. The exception of no cause of action examines "whether, based upon the facts alleged in the pleading, the law affords the plaintiff a remedy." Koch v. Covenant House New Orleans , 12-0965, p. 3 (La. App. 4 Cir. 2/6/13), 109 So.3d 971, 972-3 (citing Meckstroth v. Louisiana Dept. of Transp. & Dev. , 07-0236, p. 2 (La. App. 4 Cir. 6/27/07), 962 So.2d 490, 492 ). Reviewing the petition, the court "accepts all well[-]pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is entitled to the relief sought." Id. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931.

"A peremptory exception of no cause of action is a question of law that requires the appellate court to conduct a de novo review." R-Plex Enterprises, L.L.C. v. Desvignes , 10-1337, p. 5 (La. App. 4 Cir. 2/9/11), 61 So.3d 37, 40 (citations omitted). In Crozat v. La. Coastal, VII, LLC , this Court explained:

Dismissal of a claim is justified only when the allegations of the petition itself clearly show that the plaintiff does not state a cause of action, or when the allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings. City of New Orleans v. Bd. of Com'rs of Orleans Levee District , 93-0690 (La. 7/5/94), 640 So.2d 237. A court appropriately maintains the peremptory exception of no cause of action only when, conceding the correctness of the well-pleaded facts, the plaintiff has not stated a claim for which he can receive legal remedy under the applicable substantive law. City of New Orleans v. Bd. of Directors of Louisiana State Museum , 98-1170 (La. 3/2/99), 739 So.2d 748. In reviewing a trial court's ruling on the exception, the appellate court should conduct a de novo review. City of New Orleans v. Bd. of Com'rs of Orleans Levee Dist. , supra.

Id. , 01-2404, p. 3 (La. App. 4 Cir. 9/11/02), 830 So.2d 319, 322 (quoting Farmer v. Marriott Intern., Inc. , 01-0667, p. 2-3 (La. App. 4 Cir. 12/27/01), 806 So.2d 89, 91.

In this case, Ms. Washington filed a writ of mandamus seeking the enforcement of her public records request. A writ of mandamus is the proper procedural means to require a public officer to produce public records. Pursuant to La. R.S. 44:31, "[p]roviding access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees."

According to the amended petition, in May 2015, attorneys at MJC became concerned that the District Attorney's Office was abusing the authority granted by La. C.Cr.P. art. 66. Specifically, MJC attorneys were concerned that the District Attorney's Office was unilaterally subpoenaing documents, including individual phone records, even in instances where no criminal prosecution was intended or subsequently occurred.

To determine the frequency with which the District Attorney's Office invokes its authority pursuant to La. C.Cr.P. art. 66 and to evaluate the manner in which the District Attorney's Office operates, Ms. Washington sent a public records request to District Attorney. The request sought "all records of any subpoenas and subpoenas duces tecum sought by the Orleans Parish District Attorney pursuant to the power granted by Article 66 of the Louisiana Code of Criminal Procedure." The request also included a non-exclusive list of potentially responsive documents.

The District Attorney's Office indicated that it does not maintain a database that would allow it to determine the location of the requested records and that it was unable to provide the information Ms. Washington sought. The office later responded to Ms. Washington's follow-up requests that production of the records would be unduly burdensome. Citing to La. R.S. 44:33, the District Attorney's Office stated: "a public official is relieved of the obligation to make a public record available for inspection when doing so would be unreasonably burdensome or expensive." However, what La. R.S. 44:33 states is "[i]f, however, segregating the record would be unreasonably burdensome or expensive, or if the record requested is maintained in a fashion that it makes it readily identifiable and renders further segregation unnecessary, the official shall so state in writing and shall state the location of the requested record." Thereafter, the District Attorney's Office directed Ms. Washington to the Clerk of Court Arthur Morrell, indicating that any subpoenas issued at the request of the District Attorney's Office are a part of the criminal record.

Ms. Washington was further concerned that if no prosecution resulted from the subpoena it would not be contained in any court file because there would be no court file. While Ms. Washington also filed public records requests with each section of Orleans Parish Criminal District Court and the Clerk of Court, Ms. Washington was unable to obtain the documents she sought.

Ms. Washington later confirmed, through the investigative journalism of The Lens , that in fact, records responsive to her request were in the custody of the District Attorney's Office. It is alleged that at least some of these records were not authorized by a district judge, but were documents bearing the title "SUBPOENA," and instructed that the recipient was being "notified pursuant to LSA-CCRP art. 66" to appear and testify. As a result of this discovery, Ms. Washington filed the instant action seeking the enforcement of her records request.

In Lewis v. Morrell , 16-1055 (La. App. 4 Cir. 4/5/17), 215 So.3d 737, this Court set forth the six "requirements for invoking the mandamus remedy under the Public Records Law": (1) a request must be made; (2) the requester must be a "person;" (3) the request must be made to a "custodian;" (4) the document requested must be a "public record;" (5) the document requested must exist; and (6) there must be a failure by the custodian to respond to the request. Id. , 16-1055, p. 8-10, 215 So.3d at 742-44.

We find Ms. Washington's case meets all six requirements. First, Ms. Washington made a request in the form of her May 7, 2015 letter seeking public records. Second, she is a "person of the age of majority" entitled to make a public records request pursuant to La. R.S. 44:31. Third, Ms. Washington's request was directed to Leon A. Cannizzaro, Jr. in his official capacity as the Orleans Parish District Attorney. As such, he is a custodian of records because he is a "public official or head of any public body having custody or control of a public record." La. R.S. 44:1(A)(3).

Additionally, the documents requested are public records. "Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled" are exempted from disclosure upon a public records request. La. R.S. 44:3(A)(1). By law, the records request does not include those records pertaining to ongoing criminal cases. Ms. Washington argues that, at minimum, the subpoenas in closed cases, in matters where no charges were instituted, or where charges were refused fall outside the criminal litigation exception; and thus, they are public records. The subpoenas themselves in pending cases would nevertheless be public, she claims, if they were signed by a judge or served on a third party.

Moreover, the documents requested exist or should exist. The record reveals that the District Attorney has never claimed that the requested records do not exist, but instead has stated in response to the request that a search for them would be burdensome. In addition, the petition asserts that from the investigative reporting performed by The Lens and the New Orleans Advocate , Ms. Washington became aware of the existence of documents responsive to her request, which she attached as exhibits to her petition for writ of mandamus. Finally, to date, Ms. Washington has not received from the District Attorney any documents responsive to her request or any indication that a search was performed.

An exception of no cause of action is used to test the legal sufficiency of the petition. Thus, the sole issue at a trial on the exception is whether the face of the petition presents a case which, accepting all well-pleaded allegations as true, entitles the petitioner to relief. Ms. Washington's petition meets all the requirements as set forth in Lewis in order to plead a cause of action and invoke a mandamus proceeding. The District Attorney raised several challenges in his exception for no cause of action. However, these arguments go to the merits of Ms. Washington's request for a writ of mandamus and are better suited to be heard at a contradictory hearing.

The record demonstrates that a public records request was made; Ms. Washington is a person within the meaning of the Public Records Law; the request was made to the District Attorney, a custodian of records; the records requested are public records; the documents responsive to the request exist or should exist in the custody of the District Attorney; and Ms. Washington has not received the documents. We find the trial court erred in granting the exception of no cause of action.

ANSWER TO APPEAL

Lastly, the District Attorney filed an answer to Ms. Washington's appeal requesting an award of attorney fees for defending against the appeal in the event the trial court's judgment is affirmed in whole or in part. In that we find the trial court erred in granting the exceptions of unauthorized use of an ordinary proceeding and no cause of action, the District Attorney's request for an award of attorney fees is denied.

DECREE

We find the trial court erred in granting the District Attorney's dilatory exception of unauthorized use of an ordinary proceeding. Nothing in the record suggests that Ms. Washington sought to employ an ordinary proceeding and not summary proceedings in this case. Further, pursuant to La. C.C.P. art. 2596, discovery may be scheduled within the scope of a mandamus proceeding. See Succession of Gendron , 17-216, p. 10, 236 So.3d 802, 810. Additionally, Ms. Washington's petition meets all the requirements as set forth in Lewis in order to plead a cause of action and invoke a mandamus proceeding. Accordingly, we reverse the trial court's judgment granting the District Attorney's dilatory exception of unauthorized use of an ordinary proceeding as well as his peremptory exception of no cause of action. The matter is remanded for further proceedings in line with this opinion.

REVERSED AND REMANDED

MCKAY, C.J., DISSENTS WITH REASONS

MCKAY, C.J., DISSENTS WITH REASONS

Ms. Washington's amended petition for writ of mandamus requests records that she has yet to submit a public records request for. The issue which the Orleans Parish District Attorney's Office put forth before the district court and successfully argued was that the records contained in the May 7, 2015 records request and the records sought in the amended writ of mandamus are two separate and distinct species of documents. The May 7, 2015 records request specifically requested La. Code of Crim. Proc. Art. 66 subpoenas. In Ms. Washington's amended petition for writ of mandamus, she even includes a copy of the documents she was requesting.

Ms. Washington refers to "DA Notifications" as the documents that she is seeking in her amended writ of mandamus. The "DA Notifications" are not La. Code of Crim. Proc. Art. 66 subpoenas as requested in her May 7, 2015 records request. La. Crim. Proc. Art. 66 subpoenas have a very specific definition as defined by the Louisiana Code of Criminal Procedure.

Ms. Washington is attempting to mold her initial public request of May 7, 2015 to include the "DA Notifications" that were attached to her amended petition for writ of mandamus. The district court saw and agreed that the public records request and the amended writ of mandamus requested two separate and distinct items and therefore granted the peremptory exception of no cause of action.

The facts and law of this case are simple. The records contained in the May 7, 2015 records request and the records sought in the amended writ of mandamus are two separate and distinct species of documents. Accordingly, I respectfully dissent from the majority opinion and would affirm the judgment of the district court.

      A copy of the District Attorney's May 11, 2015 letter is not included in the record; however, there is a separate May 11, 2015 letter from the Judicial Administrator of Orleans Parish Criminal District Court.

      An amended petition was filed to correct dates and to set forth additional allegations in support of her petition.

      The issue of nonjoinder of a party was subsequently withdrawn; therefore, we pretermit discussion of the issue on appeal.

      The trial court's granting of the exception of unauthorized use of ordinary proceeding contradicts the trial court's reasons for judgment, which held that a "mandamus proceeding was improper under the facts and circumstances of this case...." It stands to reason that the contradiction between the judgment and the trial court's written reasons would leave Ms. Washington without means to assert her claim in a court of law. However, the trial court's written reasons for judgment "form no part of the judgment." Wooley , 09-0571, p. 77, 61 So.3d at 572 (citations omitted). Therefore, our review is limited to the judgment, not the reasons for judgment. Id.

      The exclusions set forth in La. R.S. 44:31.1 do not apply.

      I also note that in her brief, Ms. Washington stipulated that she is not challenging the constitutionality of La. Code of Crim. Proc. Art. 66.


author: Judge Tiffany G. Chase

text:
    Jammall BREAUX v. Devin TIPTON
    NO. 2018-CA-0429
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 14, 2018
    Devon Tipton, 1716 33rd Avenue, Gulfport, MS 39501, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Devin Tipton (hereinafter "Mr. Tipton"), seeks review of the trial court's March 13, 2018 judgment granting a protective order against him. After consideration of the record before this Court, and the applicable law, we convert Mr. Tipton's appeal to a writ; grant the writ; deny relief and affirm the judgment of the trial court.

Factual and Procedural History

Jammall Breaux (hereinafter "Mr. Breaux") and Youlika Charles-Tipton (hereinafter "Mrs. Tipton") are the parents of a minor child, J.B. Mrs. Tipton is married to Mr. Tipton, making him J.B.'s step-father. J.B. reportedly recounted several incidents involving his mother and step-father to Mr. Breaux and to staff at his school.

On February 7, 2018, Mr. Breaux filed a petition seeking a temporary restraining order, pursuant to La. R.S. § 46:2131 et seq. , on behalf of his son, J.B. In Mr. Breaux's petition, he alleged J.B. was subjected to violent behavior, including threats of violence by Mr. Tipton. Mr. Breaux sought an ex parte temporary restraining order to prevent Mr. Tipton from abusing, harassing or threatening J.B., and from going within one hundred yards of J.B.'s residence or school. The judge signed the temporary restraining order, and Mr. Tipton was ordered to appear and demonstrate why the restraining order should not be made a protective order.

On March 13, 2018, the trial court heard testimony from both Mr. Breaux and Mr. Tipton on the protective order. Mr. Breaux testified that his son related to him multiple concerning incidents involving J.B., Mr. Tipton and Mrs. Tipton. By all accounts, Mr. Tipton and Mrs. Tipton had a presumably tempestuous relationship. After disputes between Mr. Tipton and his wife, Mrs. Tipton would leave their marital home in Mississippi, late at night, taking J.B. and his half-sister back to Louisiana. Mr. Breaux expressed concern for J.B.'s safety, reasoning that frequently driving long distances, upset, and late at night with small children, was hazardous.

According to Mr. Breaux, these domestic disputes caused J.B.'s education to suffer and resulted in excessive absences. He testified that J.B. would return to Louisiana, only for his mother to remove him from school in Louisiana when she returned to Mr. Tipton in Mississippi. Mr. Breaux recounted an instance in February 2017 where the Tiptons attempted to permanently remove J.B. from his school in Louisiana. As a result, J.B. expressed a fear of Mr. Tipton to his teachers. In order to neutralize the situation, school officials contacted law enforcement, who responded to the scene and issued a report. Eventually, the Tiptons left the school without J.B. A social worker spoke with J.B., as it was evident he experienced problems dealing with the enormity of the situation. Mr. Breaux testified J.B. was often upset and needed comforting as a result of these conflicting situations. While Mr. Breaux acknowledged that J.B. missed his mother and half-sister, that sentiment was outweighed by his fear of Mr. Tipton.

J.B. consistently reported to Mr. Breaux a turbulent environment while in Mr. Tipton's home and specifically pointed out Mr. Tipton's violent acts against his mother. J.B. recounted witnessing Mr. Tipton threatening to kill his mother while holding a gun to her head. On another occasion, J.B. reported to his father that Mr. Tipton threatened Mrs. Tipton with a knife in front of J.B. and his half-sister. Additionally, J.B. maintained that Mr. Tipton was also physically violent with him. Mr. Breaux expressed profound concern that Mr. Tipton "whipped" J.B. on more than one occasion despite Mr. Breaux's opposition to corporal punishment. Overall, Mr. Breaux expressed concerns about the Tiptons' relationship; rumors that Mr. Tipton had been arrested for domestic violence; and how these incidents affected J.B.'s health and safety.

Conversely, Mr. Tipton testified about his relationship with Mrs. Tipton, insisting he and Mrs. Tipton never fought in front of J.B. While he acknowledged he and his wife underwent several separations, including a yearlong break-up, he maintained that Mrs. Tipton had never left the home they shared, with J.B, in an effort to escape him. During Mr. Tipton's testimony, he admitted the incident at J.B.'s school occurred. However, Mr. Tipton believed that J.B. was coached to tell school officials that he was fearful of his step-father. Mr. Tipton admitted he owned weapons, but he denied ever brandishing them in a violent manner. He did not deny that he "whipped" J.B.

At the conclusion of the hearing, the trial court opined that Mr. Breaux's intention was to protect his minor child. Based upon the testimony and evidence presented, the trial court expressed concern for J.B.'s safety while in Mr. Tipton's care. Specifically, testimony by Mr. Breaux established that J.B. reported alarming incidents involving Mr. Tipton to his father, his school and a social worker. The trial court granted a six month protective order, "to bring about a cessation of domestic abuse ... or the threat or danger thereof, to [J.B.]." La. R.S. § 46:2136(A). We now consider Mr. Tipton's arguments. Mr. Breaux has not filed a brief in response.

Appellate Jurisdiction

An appellate court has an independent duty to consider whether it has subject matter jurisdiction over the matter. See Torregano v. Imperium Builders S., LLC , 2016-0644 (La.App. 4 Cir. 2/15/17), 212 So.3d 638. In order to properly perfect an appeal, three procedural elements are mandated: "(1) a motion or petition for appeal, (2) an order of appeal, and (3) notice of appeal." Id. , 16-0644, p. 4, 212 So.3d at 641. An appellate court's jurisdiction attaches only once the order of appeal is granted by the trial court. Id. , 16-0644, p. 7, 212 So.3d at 642.

Mr. Tipton timely filed a motion for appeal, along with a notice of appeal several days later. However, no signed order granting the appeal and setting a return date is contained within the record. Therefore, the appeal was not properly perfected.

Although there is no signed order, under appropriate circumstances, this Court will exercise its supervisory jurisdiction to convert an appeal to an application for supervisory writ. Joseph v. Wasserman, 2017-0603, p. 8 (La.App. 4 Cir. 1/10/18), 237 So.3d 14, 20. In order to properly convert an appeal to a supervisory writ, the appeal must be filed within the applicable thirty-day period. Id. The motion for appeal in this case was filed within the thirty-day period allowed for an application for supervisory writ. In the interest of promoting prompt resolution and fundamental fairness, we exercise our discretion and convert Mr. Tipton's appeal to an application for supervisory writ. Id.

Standard of Review

Domestic protective orders are reviewed for an abuse of discretion. Munger v. Sirenko , 2016-0778, p. 7 (La.App. 4 Cir. 7/12/17), 224 So.3d 445, 449. A trial court's findings of fact will only be set aside if it is clearly wrong or there is manifest error. Id. An appellate court gives great deference to the finder of fact in credibility determinations, as the trial court has the opportunity to observe the witnesses conduct and composure during their testimony. Id. , 16-0778, p. 8, 224 So.3d at 449. "When conflicting testimony exists, reasonable evaluations of credibility and reasonable inferences of fact made by the trial court are not to be disturbed." Id. , 16-0778, p. 8, 224 So.3d at 449-50.

Discussion

The sole issue before this Court is whether the trial court erred in granting a protective order against Mr. Tipton. On appeal, Mr. Tipton argues Mr. Breaux's testimony, regarding J.B.'s allegations, is not credible and stresses that Mr. Breaux failed to timely raise any concerns regarding abuse. Mr. Tipton contends the hearsay testimony that he physically and verbally abused J.B. constitutes insufficient evidence to support the issuance of a protective order.

The Domestic Abuse Assistance Act, La. R.S. § 46:2131, et seq. , governs the issuance of protective orders in matters involving domestic violence. According to La. R.S. § 46:2131, the purpose of the statute is "to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection." La. R.S. § 46:2136(A) provides that "[t]he court may grant any protective order or approve any consent agreement to bring about a cessation of domestic abuse as defined in [La.] R.S.[§] 46:2132, or the threat or danger thereof, to a party, any minor children, or any person alleged to be incompetent." Under La. R.S. § 46:2135(B), Mr. Breaux bears the burden of proof that domestic violence occurred against J.B., by a preponderance of the evidence.

The provision relevant to the case sub judice is contained within La. R.S. § 46:2135, which provides that "immediate and present danger of [domestic] abuse ... constitute[s] good cause [for the grant of a protective order]." Domestic abuse is defined to include, "but is not limited to[,] physical or sexual abuse and any offense against the person, physical or non-physical, as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family member, household member, or dating partner against another." La. R.S. § 46:2132. Thus, there must be evidence that acts by Mr. Tipton against J.B. necessitated a protective order.

First, Mr. Tipton argues Mr. Breaux's testimony is not credible for several reasons, which include: the allegations of domestic violence were not made until over a year after they occurred, Mr. Breaux had ulterior motives for seeking a protective order and Mr. Breaux was simply untruthful.

Mr. Tipton points out that Mr. Breaux had no urgency in bringing charges of domestic violence, proposing this evidences a lack of legitimacy. Mr. Tipton suggests the protective order is merely an attempt by Mr. Breaux to avoid paying child support by obtaining custody. In support of his effort to gain custody, Mr. Tipton contends Mr. Breaux simply made up the story regarding the gun.

In making the credibility determination that Mr. Breaux's testimony was more credible than that of Mr. Tipton, the trial court determined that the evidence was sufficient to find that Mr. Tipton violated the Domestic Abuse Assistance Act in his treatment of J.B. Mr. Tipton questions why Mr. Breaux delayed reporting the incidents of abuse, suggesting this delay made the allegations less credible. However, the alleged abuse itself is not required to be recent in order to merit a grant of a protective order. La. R.S. § 46:2135(A). Further, the trial court is mandated to consider past history of threats or abuse in determining whether to grant a protective order. Id. While conflicting evidence was presented, the trial court had the benefit of hearing the testimony of both witnesses and making credibility determinations. Mr. Tipton maintained he never argued with Mrs. Tipton or displayed a gun, but this claim was rejected by the trial court. The trial court likewise rejected Mr. Tipton's assertions that Mr. Breaux was simply lying to the court in his direct testimony. If the record before this Court supports the findings of the trial court, "[o]ur standard of review does not allow this Court to substitute our judgment for that of the trial court." Munger , p. 10, 16-0778, 224 So.3d at 450. Further, we find the credibility determinations of the trial court are well supported. The trial court was in the best posture to assess the credibility of the witnesses. In this evaluation, the trial court determined Mr. Breaux to be more credible, thus entered a protective order. Evidence in the record supported a determination that Mr. Tipton's actions presented an "immediate and present danger of abuse" as it related to J.B. La. R.S. § 46:2135(A).

Finally, Mr. Tipton contends there is only hearsay testimony that he physically abused or committed any other criminal offense toward J.B. While Mr. Tipton argues on appeal that only hearsay testimony supports the trial court's protective order, we disagree. A review of the record demonstrates that the trial court completed a comprehensive review of the evidence before granting the protective order. In support of the protective order, there was uncontested evidence that Mr. Tipton "whipped" J.B. on several occasions, without Mr. Breaux's knowledge or permission. The trial court also noted school officials contacted Mr. Breaux and law enforcement in February 2017, when the Tiptons attempted to remove J.B. from his school. During this incident, J.B. expressed concern for his safety in leaving with Mr. Tipton, and a police report was filed as a result. Mr. Tipton does not dispute this incident occurred.

We find that the actions of Mr. Tipton, in threatening Mrs. Tipton with weapons, whipping J.B., and attempting to remove J.B. from school, which resulted in a police report, constitute domestic abuse within the meaning of the statute. The evidence before this Court does not support Mr. Tipton's contentions. Out of concern for the minor child's safety, the trial court granted a protective order. We find no abuse of discretion in the trial court's issuance of a protective order.

Conclusion

We find no abuse of discretion in the trial court's determination that Mr. Breaux presented sufficient proof to obtain the protective order for J.B. The trial court's findings are supported by the evidence and the law. Accordingly, for the reasons set forth above, we affirm the trial court's issuance of the protective order.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; RELIEF DENIED; JUDGMENT AFFIRMED

      In this opinion, the initials of the minor child are used to protect and maintain the privacy of the minor child involved, as is set forth in Rule 5-2 of the Uniform Rules of Court for the Courts of Appeal.

      Under the Domestic Abuse Assistance Act, La. R.S. § 46:2132, stepparents and stepchildren are included in the definition of family member.