text:
    STATE of Louisiana v. Furnell SEVERIN, Jr.
    NO. 2018-KH-1658
    Supreme Court of Louisiana.
    May 28, 2019
    Denied. Applicant has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing. See State ex rel. Severin v. State, 18-0041 (La. 9/14/18), 252 So.3d 466.


source: Caselaw Access Project

author: GUIDRY, J., would grant.

license: Public Domain

text:
    STATE of Louisiana v. Terrick BATISTE
    NO. 2019-KK-0438
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.
   GUIDRY, J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Armond DUHON
    NO. 2019-K-0124
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    Abby Gail GARCIA v. CITY OF NATCHITOCHES, et al.
    NO. 2019-C-0516
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    STATE of Louisiana v. Robert DEES
    NO. 2019-KK-0553
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    Dennis GIBSON, Individually and on Behalf of All Others Similarly Situated v. NATIONAL HEALTHCARE OF LEESVILLE, INC., d/b/a Byrd Regional Hospital
    NO. 2019-C-0555
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    STATE of Louisiana v. Marlin L. MAYFIELD a/k/a Marlin Mayfield
    NO. 2019-K-0046
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


author: Welch, J.

text:
    STATE of Louisiana v. Demarcos GROSS
    2018 KA 1014
    Court of Appeal of Louisiana, First Circuit.
    JUDGMENT RENDERED: FEBRUARY 25, 2019
    Hillar C. Moore, III, District Attorney, Monisa L. Thompson, Mark D. Pethke, Assistant District Attorneys, Baton Rouge, Louisiana, Attorneys for Appellant, State of Louisiana
    Laura A. Signorelli, C. James Rothkamm, Jr., Baton Rouge, Louisiana, Attorneys for Appellee, Defendant-Demarcos Gross
    Before: Welch, Chutz, and Lanier, JJ.
   Welch, J.

The grand jury of East Baton Rouge Parish indicted the defendant, Demarcos Gross, with second degree murder, a violation of La. R.S. 14:30.1. The defendant pled not guilty. The defendant filed a motion to quash, on the grounds of improper venue, contending that no act or element of the alleged second degree murder occurred in East Baton Rouge Parish. Following a contradictory hearing, the trial court granted the defendant's motion to quash. The State of Louisiana now appeals the trial court's ruling. For the following reasons, we affirm the trial court's granting of the defendant's motion to quash.

BACKGROUND

Because there is not yet testimony regarding the underlying events at this point in the litigation, these facts are taken from various Baton Rouge Police Department ("BRPD") reports included in the record on appeal. After being dispatched to a report of a suspicious vehicle, BRPD officers discovered the body of Clifton Walker, III, at approximately 9:56 a.m. on November 1, 2012, in the trunk of his 2010 white Dodge Challenger, which had been parked behind a barber and salon business located at 4585 Evangeline Street in East Baton Rouge Parish. Emergency Medical Services ("EMS") pronounced Walker dead on the scene, and BRPD officers noted that Walker had suffered injuries to his upper torso and back. The officers noted significant front-end damage to Walker's vehicle and viewed blood on the front and passenger-side wheel wells, on the side panels of the vehicle, and in the vehicle's interior. The investigation revealed that Walker was possibly run over with his own vehicle. The officers also noted that there was fire damage to the interior of Walker's vehicle and discovered paper materials on the ground near the gas tank, which were consistent with attempts to ignite the vehicle on fire. The officers also noted that Walker's cell phone had been removed from his pocket.

Forensic examination of Walker's body indicated extreme blunt trauma to his upper torso and head, specifically "[m]ultiple blunt force injuries consistent with roll over by a vehicle, including: ... [m]ultiple cutaneous surfaces of body[,] ... [c]rushing crainocerebral [sic ] and facial injuries[, and] ... [c]rushing injuries of torso, with displacement of major organs and depression of flail chest formation of thorax." The forensic pathologist noted that while those wounds would have been fatal, the trauma to Walker's head and neck areas would have been the "most fatal" of his injuries.

During their investigation of Walker's death, BRPD detectives spoke to a neighboring resident of the business located at 4585 Evangeline Street-where Walker's vehicle and body were found-who noticed a car parked suspiciously close to the business at approximately 2:30 a.m. on the morning of November 1, 2012. The witness initially thought the vehicle was a police car. After she left her residence to get gas and returned home, she was concerned to see the car was still parked behind the business. The witness viewed a young male standing near the trunk of the vehicle, pacing back and forth. Wary of the man's intentions, the witness summoned her son-in-law to come out from inside her home. They both observed the man pacing near the vehicle and saw that the interior was now on fire. The witness's son-in-law observed a second male standing on the opposite side of the business, apparently acting as a lookout for the first man. Both men fled on foot after the fire started inside the vehicle. The witnesses called 911 to report the vehicle fire, but said that no one responded to the call.

At approximately 7:00 p.m. on November 1, 2012, Oscar Parker, Jr., located in Baker, Louisiana, contacted BRPD detectives in reference to property that had belonged to Walker. Parker told police he was approached by the defendant asking if he knew how to "wipe" a cell phone. Parker stated that he did, and the defendant offered to sell him an iPhone. Parker purchased the iPhone from the defendant, activated it, and discovered that the iPhone had belonged to Walker, who Parker learned had recently been killed. Parker initially sought to return the iPhone to the defendant, but unable to locate him, Parker gave the iPhone to the defendant's grandmother, Joyce Jackson. When BRPD detectives contacted Jackson, she was very cooperative and returned the iPhone to the detectives. Jackson stated that the defendant had returned home with an iPhone that he said he later sold to Parker. Jackson also gave the detectives the clothes the defendant was wearing upon his return home earlier in the day.

BRPD detectives also spoke with the defendant's uncle, Darryl Sheppard. Sheppard told the detectives that he played video games with the defendant until about 7 p.m. on the night of October 31, 2012. Sheppard noted that the defendant left his house, returned briefly at about 10:00 p.m., left his house again, and did not return until about 4:00 a.m. on November 1, 2012. The defendant told his uncle he had visited an unidentified female's residence located nearby. Sheppard described the defendant's demeanor as "strange and unfocused" and indicated that the defendant was very concerned about how he smelled, so Sheppard gave the defendant some cologne. Sheppard also observed the defendant with an iPhone with a cracked screen that he had never seen the defendant with before. Sheppard also told the BRPD detectives that the defendant had been concerned with getting money to repair his own vehicle and obtain insurance, and had been eagerly awaiting his tax return. However, later in the day on November 1, 2012, the defendant returned to the home with a fixed and insured vehicle.

Though the defendant was questioned several times by police, it was not until his fourth interview over two years later that he revealed he was involved in Walker's killing. According to the defendant, he, another individual named "Chris," and Walker were in Walker's vehicle headed to an address in Slaughter, Louisiana, which is located in East Feliciana Parish. Once they left that address, the defendant stated that "Chris" struck Walker in the head with a hammer. Walker jumped out of the vehicle, and the defendant claimed "Chris" got into the driver's seat and ran over Walker with his own vehicle. After "Chris" struck Walker in the head a few more times with the hammer, the defendant said he and "Chris" put Walker into the trunk. Defendant said he thought Walker was already dead because he was "bleeding a lot." Defendant brought police to the location "Chris" allegedly ran over Walker, and detectives found pieces of a vehicle matching Walker's 2010 white Dodge Challenger in the brush on the side of the road, together with dirt matching some found on the vehicle's underside. Defendant also brought detectives to the Comite River Bridge on Port Hudson-Pride Road where the defendant asserted "Chris" threw the hammer into the river. The location where the defendant says Walker was run over, 1513 Scott Barr Road, is alleged to be about 100 yards into East Feliciana Parish.

LAW AND DISCUSSION

In its sole assignment of error, the State contends the trial court erred in granting the defendant's motion to quash on the grounds of improper venue. The State argues that the trial court improperly found that Walker's murder occurred in East Feliciana Parish because neither the coroner's report nor any testimony suggests a precise location or time of death. In support of this argument, the State also highlights that the defendant took several actions related to the murder that took place in East Baton Rouge Parish, such as selling the victim's iPhone, setting the victim's car on fire, and riding with the victim in the victim's car.

In response, the defendant argues that the State provided no evidence that any part of the actual act of second degree murder occurred within East Baton Rouge Parish. Instead, the defendant urges the entire "transaction" of Walker being run over with his own vehicle took place at 1513 Scott Bar Road, which is located in East Feliciana Parish. The defendant contends that the car parts allegedly found at 1513 Scott Bar Road are the only evidence indicating where the actual murder took place.

Louisiana Code of Criminal Procedure article 611 governs the jurisdiction and venue of criminal trials. Article 611 provides, in pertinent part:

A. All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.
B. If the offender is charged with the crime of first or second degree murder and it cannot be determined where the offense or the elements of the offense occurred, the offense is deemed to have been committed in the parish where the body of the victim was found.

Where a body is found, and it is unknown where the actual killing took place, proper venue is in the parish where the body of the victim was discovered. See State v. Surratt, 2005-1406 (La. App. 3 Cir. 6/7/06), 932 So.2d 736, 750-51, writs denied, 2006-2100, 2006-2102 (La. 6/1/07), 957 So.2d 165.

Venue is not an essential element of the offense; rather, it is a jurisdictional matter. See La. C.Cr.P. arts. 611(A) and 615. Objections to venue must be raised by a motion to quash to be ruled on by the trial court in advance of the trial. La. C.Cr.P. art. 615 ; State v. Roblow, 623 So.2d 51, 55 (La. App. 1 Cir. 1993). At the hearing, the burden is on the State to prove venue by a preponderance of the evidence. Id. Former La. R.S. 15:13 provided that venue was proper where a "substantial element" of the offense was committed, which required that a "material element" take place in that parish. In adopting the "act or element" test contained in the last sentence of La. C.Cr.P. art. 611(A), the Louisiana Legislature rejected the "substantial element" test used in previous legislation. Roblow, 623 So.2d at 55. However, La. C.Cr.P. art. 611 does not simply refer to any act related to the offense; it refers to "acts constituting an offense" or the "elements of an offense." The place where the effect of the criminal conduct occurs is an important consideration in determining whether the charged criminal acts have substantial contacts with the venue chosen for prosecution. See State v. Hayes, 2001-3193 (La. 1/28/03), 837 So.2d 1195, 1199 (per curiam ).

Critically, venue is a factual question and, on appeal, review is limited to whether the State submitted some evidence of proper venue. State v. Skipper, 387 So.2d 592, 594 (La. 1980). As such, "review of the issue on appeal is not concerned with weighing the sufficiency of the evidence" presented by the State. State v. Cupit, 508 So.2d 996, 1001 (La. App. 2 Cir.), writ denied, 514 So.2d 1174 (La. 1987). Finally, a trial court's ruling on a motion to quash is discretionary, and should not be reversed absent a clear abuse of discretion. State v. Love, 2000-3347 (La. 5/23/03), 847 So.2d 1198, 1206, 1208.

Though it does so with less clarity on appeal, the State argued at the contradictory hearing on the defendant's motion to quash that the continuing nature of the events leading to the ultimate death of Walker and his subsequent discovery in the trunk of his car an uncertain amount of time later renders any parish passed through in the vehicle to be proper venue. In support, the State cites Roblow, 623 So.2d 51, and State ex rel. Puderer v. State, 2015-1359 (La. 10/17/16), 202 So.3d 978 (per curiam ). Both of those cases are distinguishable from the instant appeal, however, because the evidence in those cases clearly established that acts or elements constituting the charged offenses definitively began in one parish and continued until the crimes were completed in another parish. Moreover, the defendant is correct when arguing that the discrete transaction of the second degree murder of Walker possibly could have happened over a much shorter time frame and could have been completed in East Feliciana Parish before the defendant and "Chris" returned to East Baton Rouge Parish. Consequently, La. C.Cr.P. art. 612 is not applicable in the instant case where the State is unable to show by a preponderance of the evidence that any elements of the offense occurred in the vehicle while traveling in East Baton Rouge Parish.

We cannot say the trial court erred when finding the preponderance of evidence presented by both the State and the defendant showed that the murder occurred in East Feliciana Parish. It is uncontested that Walker was struck by his vehicle far enough inside East Feliciana Parish as to not warrant application of La. C.Cr.P. art. 614. Similarly, there is no indication the murder was an ongoing event taking place in the victim's vehicle over several parishes, thus, La. C.Cr.P. art. 612 is inapplicable. Instead, venue was proper in East Baton Rouge Parish when the charges were initially filed against defendant and, at that time, there was no indication as to where the victim's murder took place. Where "it cannot be determined where the offense or the elements of the offense occurred," venue is proper where the body is found. La. C.Cr.P. art. 611(B). However, given the evidentiary admissions at the motion to quash hearing, once the trial court determined that a preponderance of the evidence factually showed the offense of second degree murder more likely than not occurred in East Feliciana Parish, the situs of venue was statutorily removed from East Baton Rouge Parish under La. C.Cr.P. art. 611(B) and transferred to East Feliciana Parish under La. C.Cr.P. art. 611(A).

Based on the investigating officer's discussions with the forensic pathologist, the "massive trauma to the head and neck areas" of Walker was the "most fatal" of his injuries. Moreover, damaged car parts from the victim's vehicle were found in the location at which the defendant brought detectives to illustrate his version of events transpiring in East Feliciana Parish. Given that venue is a question of fact, and the fact-finder's determination is afforded great discretion, the State fails to show a clear abuse of that discretion in the trial court's granting of the defendant's motion to quash. Accordingly, we affirm the trial court's granting of the defendant's motion to quash.

MOTION TO QUASH AFFIRMED.

      Though the State references these prior interviews in its brief on appeal-including one in which the defendant allegedly admitted to striking Walker in the head with a bottle-there is nothing in the record on appeal confirming prior interviews.

      We apply the version of La. C.Cr.P. art. 611 in effect at the time of the offense. Article 611 has since been amended-most recently through 2018 La. Acts 125, § 1, with an effective date of August 1, 2018. None of the modifications are relevant to the instant appeal.

      Contrary to the defendant's assertion, the State is not raising a new objection on appeal, but is apparently attempting to clarify arguments it had already made below. See State v. Butler, 2012-2359 (La. 5/17/13), 117 So.3d 87, 89 (per curiam ), cert. denied. 572 U.S. 1064, 134 S.Ct. 1879, 188 L.Ed.2d 918 (2014) (a new basis for an objection may not be urged for the first time on appeal).

      The State reasoned that the defendant's act of driving the victim around without obtaining medical attention, and subsequently setting the car on fire, constituted a "continued act" in the criminal transaction taking place in East Baton Rouge Parish. See La. C.Cr.P. arts. 611, comments (c) and (d), and 612.

      In Roblow, the defendant was indicted by the East Baton Rouge Parish grand jury with two counts of aggravated kidnapping, two counts of aggravated rape, and one count of armed robbery. Roblow, 623 So.2d at 53. The defendant kidnapped two victims in East Baton Rouge Parish, forced the victims to drive him to Bossier Parish where he raped them, forced the victims to stop and use a credit card to buy gas along the way, and then forced the victims to drive him to Shreveport where he made them stop the vehicle, stole money from them, and drove away. Id. at 53-54. Prior to trial, the defendant filed a motion to quash the aggravated rape counts and the armed robbery count, arguing that venue for those crimes was improper in East Baton Rouge Parish because none of the elements of those crimes occurred in East Baton Rouge Parish. Id. at 55. The trial court quashed the aggravated rape counts, but denied the motion as to the armed robbery count. The appellate court affirmed the trial court's ruling as to the armed robbery count, holding that the evidence established that the armed robbery crime began in East Baton Rouge Parish and continued until the crime was completed in the other parish-the elements of "use of force or intimidation" and "while armed with a dangerous weapon" began in East Baton Rouge Parish and continued until the crime was completed in another parish. Id. at 55. As to the aggravated rape counts, the appellate court reversed the trial court's ruling, finding that the evidence established that an act or element of the aggravated rapes occurred in East Baton Rouge Parish-the elements of "threats" and being "armed with a dangerous weapon"-were present from the outset in East Baton Rouge Parish and were relevant when the victims later were "prevented from resisting" the rapes in Bossier Parish. Thus, venue was proper in East Baton Rouge Parish. Id. at 56.
      In Puderer, the defendant was charged with two counts of second degree kidnapping and two counts of forcible rape, to which he pled guilty and was sentenced on each count to twenty years at hard labor. The defendant did not appeal, but later filed a counseled and a pro se application for post-conviction relief. Puderer, 202 So.3d at 980. Therein, the defendant claimed the State had no evidence to prove that the second degree kidnapping (count 3) occurred in Orleans Parish; however, the supreme court found that the record showed that the victim of that count was alleged to have been taken from the French Quarter, which is located in Orleans Parish. Id. at 981. The defendant also claimed that the trial court lacked subject matter jurisdiction over the forcible rape (count 4), arguing that the victim could not identify the exact location where she was raped. The supreme court found that the evidence showed that the elements of forcible rape-"threats" and/or "without the lawful consent" of the victim-were present from the outset of the kidnapping in Orleans Parish and relevant when the victim was later prevented from resisting the rape. Thus, the crime of forcible rape occurred in Orleans Parish. Id. at 983.

      Louisiana Code of Criminal Procedure article 612 provides that "[i]f an offense is committed on a ... private vehicle while in transit in this state and the exact place of the offense ... cannot be established, the offense is deemed to have been committed in any parish through or over which the ... vehicle passed, and in which the crime could have been committed."

      Louisiana Code of Criminal Procedure article 614 provides that "[a]n offense committed on the boundary line of two parishes or within one hundred feet thereof is deemed to have been committed in either parish."


author: CHUTZ, J.

text:
    Maureen Rodi HOSKINS v. STATE of Louisiana, THROUGH the DIVISION OF ADMINISTRATION, OFFICE OF COMMUNITY DEVELOPMENT
    2018 CA 1089
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: FEBRUARY 25, 2019
    Loretta O. Hoskins, New Orleans, Louisiana, Counsel for Plaintiff-Appellee Maureen Rodi Hoskins
    Michael S. Heier, Ryan M. Seidemann, Baton Rouge, Louisiana, Counsel for Defendant-Appellant State of Louisiana, Through the Division of Administration, Office of Community Development
    BEFORE: WELCH, CHUTZ AND LANIER, JJ.
   CHUTZ, J.

Defendant seeks review in this appeal of a district court judgment ordering it to pay plaintiff $ 100,000.00 for breach of contract and $ 9,600.00 for mental anguish. We affirm the award for breach of contract, but reverse the award for mental anguish.

PROCEDURAL AND FACTUAL BACKGROUND

In August 2005, the New Orleans home of Harry D. Hoskins, III and his wife, Maureen R. Hoskins was severely damaged by Hurricane Katrina. The damage was so severe that the home had to be demolished. The Hoskins decided to rebuild their home at the same location, but in such a manner that it would be able to withstand future hurricanes and flooding. To aid with rebuilding costs, the Hoskins applied for a pilot reconstruction grant from the Hazard Mitigation Grant Program (HMGP) sometime in 2009.

The HMGP was a cost reimbursement program that was intended to "[s]erve as a supplemental grant for eligible Road Home participants to implement measures that will permanently reduce or eliminate future damages and losses from natural hazards through their elevation or pilot reconstruction grant." The grants were funded by the Federal Emergency Management Agency (FEMA), but the State of Louisiana administered the HMGP through the Division of Administration, Office of Community Development (OCD). During 2009, OCD's Standard Operating Procedures manual provided that eligible homeowners could be reimbursed up to $ 100,000.00, "based on actual costs incurred," to either "elevate or reconstruct their damaged homes" to meet certain elevation standards. In exchange for a HMGP grant, homeowners agreed to build a home with certain mitigation features, to maintain flood insurance in perpetuity, and to notify any subsequent transferees of the home of the requirement to maintain flood insurance. The amount of a grant was calculated by deducting from the homeowner's total project costs (using actual costs for eligible expenses) any duplication of benefits the homeowner had already received from FEMA or Road Home programs, flood insurance, hazard insurance, or any other sources.

The Hoskins provided OCD with various documentation and building permits in support of their grant application. Sometime in the middle of December 2009, they received a phone call from OCD notifying them they had been awarded a $ 100,000.00 HMGP grant and would need to complete certain paperwork in order to receive the grant. Accordingly, on December 22, 2009, the Hoskins went to OCD's office in New Orleans and signed a Voluntary Participation Agreement, a "Declaration of Covenants Running With The Land," and other documents. Additionally, on December 23, 2009, they signed an Advance Disbursement Agreement and Affidavit and an Advance Disbursement Request Application, and on December 24, 2009, a form authorizing the state to make electronic deposits to the Hoskins' bank account. Both the covenant agreement and the advance disbursement agreement/affidavit were in authentic form. All of the documents were prepared by OCD. Moreover, the covenant agreement was also signed by an OCD employee.

After the documents were executed, an OCD employee informed the Hoskins that once their bank routing number was received, the grant funds would be disbursed to their bank account within ten days. Before any funds were disbursed, OCD changed its method of calculating HMGP grants by using unit cost guidance (UCG) instead of actual costs in calculating HMGP grants. The change was precipitated by a communication OCD received from FEMA requiring that UCG be used instead of actual costs in determining grant awards. Up until that point, OCD had used a homeowner's actual costs for purposes of calculating HMGP grants, and it had awarded and paid a number of grants on that basis. As noted previously, the procedure of using actual costs in calculating grants was even set forth in OCD's 2009 standard operating procedures manual

By calculating the Hoskins' entitlement to a HMGP grant using UCG instead of actual costs, their total project costs were substantially reduced. In fact, when UCG was used instead of actual costs, the Hoskins were not eligible to receive a HMGP grant once the benefits they had already received from other sources were deducted from their total project costs

At one point, OCD indicated it was willing to release the grant funds to the Hoskins "contingent upon FEMA's concurrence in doing so." OCD took this position on the basis that it had communicated to the Hoskins regarding the grant prior to the time that FEMA communicated to OCD that it should use UCG rather than actual costs in calculating HMGP grants. The record contains no indication that FEMA ever concurred in such action. In any event, OCD never disbursed any grant funds to the Hoskins.

Harry Hoskins died on June 4, 2013, leaving his entire estate to his surviving spouse, Maureen. On December 23, 2014, Maureen filed suit against the State of Louisiana, through the Division of Administration, OCD seeking $ 100,000.00 for breach of contract, plus all other resulting damages. At the conclusion of trial, the trial court ruled in favor of Maureen, stating:

The State has a charge to keep. It's made a promise. It is responsible for that commitment. [The] totality of the circumstances I've witnessed today, I find fault in [the] activity of the State to the neglect of the petitioner. I believe the State has breached its obligation and will render judgment accordingly.

On April 3, 2018, the trial court signed a judgment awarding Maureen $ 100,000.00 for breach of contract and $ 9,600.00 for mental anguish. The State now appeals, raising two assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

OCD contends the trial court legally erred in finding a contract existed requiring it to pay $ 100,000.00 to Maureen since she failed to establish any of the essential elements of a binding contract. According to OCD, the documents presented by plaintiff in support of her contractual claim merely constituted an application for a HMGP grant, which the Hoskins had no guarantee of receiving. OCD argues that, at best, the documents established the existence of an aleatory contract, which under La. C.C. art. 1912, is one where the performance of either parties' obligation is dependent upon the occurrence of an uncertain event. OCD asserts the uncertain event in this case was a positive outcome to the Hoskins' grant application, which never occurred. Specifically, OCD maintains the evidence was insufficient to prove the Hoskins met FEMA's requirements for receiving a HMGP grant or complied with the conditions necessary to receive such a grant. Therefore, OCD contends it fulfilled the only obligation it owed to the Hoskins, which was to review the documentation they submitted to determine whether they were eligible to receive a HMGP grant under the strict guidelines established by FEMA.

The requirements for a valid contract are: (1) capacity; (2) consent; (3) a lawful cause; and (4) a valid object. See La. C.C. arts. 1918, 1927, 1966, 1971 ; Granger v. Christus Health Central Louisiana , 12-1892 (La. 6/28/13), 144 So.3d 736, 760-61. The burden of proof in an action for breach of contract is on the party claiming rights under the contract. La. C.C. art. 1831 ; Hornbeck Offshore Operators, LLC v. Cross Group, Inc. , 16-0174 (La. App. 1st Cir. 10/31/16), 207 So.3d 1141, 1146, writ denied, 16-2095 (La. 1/9/17), 214 So.3d 872. The existence of the contract and its terms must be proven by a preponderance of the evidence, either direct or circumstantial. Hornbeck Offshore Operators, LLC , 207 So.3d at 1146 ; Bond v. Allemand , 632 So.2d 326, 329 (La. App. 1st Cir. 1993), writ denied, 94-0718 (La. 4/29/94), 637 So.2d 468.

Whether a contract exists is a question of fact, and the trial court's determination of this issue will not be disturbed unless manifestly erroneous or clearly wrong. In evaluating the evidence needed to establish the existence or non-existence of a contract, the trier-of-fact is allowed to make credibility determinations. Read v. Willwoods Community , 14-1475 (La. 3/17/15), 165 So.3d 883, 888. Under the manifest error standard, if the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier-of-fact, it would have weighed the evidence differently. Amitech U.S.A., Ltd. v. Nottingham Construction Company , 09-2048 (La. App. 1st Cir. 10/29/10), 57 So.3d 1043, 1058, writs denied, 11-0866, 11-0953 (La. 6/17/11), 63 So.3d 1036 & 1043.

In the instant case, the trial court found a contract existed between the parties obligating OCD to pay Maureen $ 100,000.00. Based on our review, we find no manifest error in these factual findings. The record, including both the testimony and exhibits presented regarding the elements necessary for the formation of a valid contract, reasonably supports the trial court's findings.

The first element required for a contract is capacity. Granger , 144 So.3d at 760. All persons have capacity to contract, except unemancipated minors, interdicts, and persons deprived of reason at the time of contracting. La. C.C. art. 1918. Moreover, the capacity to contract is presumed, and exceptions to the presumption of capacity must be convincingly established. Impson for Impson v. Succession of Impson , 17-1133 (La. App. 1st Cir. 2/21/10) (unpublished), 2018 WL 1751638, writ denied, 18-0452 (La. 5/11/18), 242 So.3d 567. In this case, no evidence was presented rebutting the presumption of capacity.

The second essential element of a contract is consent. Granger , 144 So.3d at 760-61. A contract is formed by the consent of the parties established through an offer and acceptance. La. C.C. art. 1927. "Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent." La. C.C. art. 1927.

The trial court stated in its oral reasons for judgment that OCD "made a promise" and "has a charge to keep." These words reflect the trial court's obvious factual finding that all parties herein consented to an agreement that the Hoskins would receive a HMGP grant. The record supports this conclusion.

In particular, the covenant agreement, which was executed in authentic form and signed by both the Hoskins and an OCD representative on December 22, 2009, is indicative of a consensual agreement between the parties that a HMGP grant had been offered to and accepted by the Hoskins. The covenant agreement specifically states that the "Owner" (identified the Hoskins) "has been awarded a Hazard Mitigation Grant ... from the United States of America under the Department of Homeland Security Federal Emergency Management Agency ("FEMA ") Hazard Mitigation Program." Section 4 of the covenant agreement further provides, "As a recipient of Federally-funded hazard mitigation assistance under the Hazard Mitigation Program ... the Property Owner accepts the following conditions which shall encumber the property in perpetuity." The document then lists several conditions, including that the owners maintain flood insurance on the property in perpetuity and that they notify any subsequent transferees of the home of the requirement to maintain flood insurance. Finally, the covenant agreement explicitly states that the Hoskins are entering into the covenant agreement "in consideration of receipt of all HMGP Grant proceeds in order to mitigate future damages from hurricanes and similar natural disasters ." Moreover, this document was prepared by OCD, including the text stating that the Hoskins had been awarded a HMGP grant.

The additional documents prepared by OCD and signed by the Hoskins in close proximity to the covenant agreement are another circumstance indicating the parties' consent to the agreement that the Hoskins would receive a HMGP grant. In particular, the Hoskins signed an "Advance Disbursement AGREEMENT AND AFFIDAVIT" on December 23, 2009. That document states in its first paragraph that, "Harry D. Hoskins and Maureen R. Hoskins ... hereby agree to the following conditions and terms of this Grant Agreement ." (Emphasis added.) Additionally, Section II of the advance disbursement agreement/affidavit states, "[t]he Owner has been awarded a Hazard Mitigation Grant ... under the ... [HMGP Program]." Although only the Hoskins signed the advance disbursement agreement/affidavit, OCD prepared the document and furnished its text. OCD also furnished the Hoskins with an "Electronic Funds Transfer Enrollment Form," which Harry Hoskins signed on December 24, 2009, authorizing the state to make direct deposits into the Hoskins' bank account.

The next essential element of a contract is cause. Granger , 144 So.3d at 760-61. Under La. C.C. art. 1967, cause is defined as "the reason why a party obligates himself." An examination of the covenant agreement, as well as the advance disbursement agreement/affidavit, plainly reveals the cause of the agreement between the Hoskins and OCD. The covenant agreement reflects that the reason for its execution was for the Hoskins to receive a HMGP grant "in order to mitigate future damages from hurricanes and similar natural disasters ." (Emphasis added.) Likewise, the advance disbursement agreement/affidavit states that "[t]he purpose of this HMGP Grant is to mitigate losses from future damage resulting from hurricanes and similar natural disasters." Thus, the record clearly establishes a lawful cause for the agreement, which was to mitigate future damages from hurricane and natural disasters.

A valid object is the final element required for a contract. Granger , 144 So.3d at 760-61. The principal object of the agreement between the parties herein was clearly established by Maureen's testimony concerning the efforts she and Harry made for the purpose of obtaining a HMGP grant, as well as the various documents that were prepared by OCD and executed by the Hoskins. The valid object of the parties' agreement was for the Hoskins to receive a HMGP grant, thereby allowing them to undertake mitigation measures in building their new home to avoid future damages from natural disasters.

Accordingly, considering the entirety of the record, we find that the evidence presented by Maureen and accepted by the trial court was sufficient to support the trial court's finding that a contract existed between the parties. Further, we reject OCD's argument that the trial court erred in not deferring to its agency decision regarding this matter because it was the entity best positioned for interpreting and implementing the grant program. The dispositive issue in this matter was whether a valid contract existed between the Hoskins and OCD. The existence or non-existence of a contract was a question of fact for the trial court's determination rather than a matter within OCD's discretion. See Read , 165 So.3d at 888.

Additionally, OCD contends in general that Maureen failed to prove the Hoskins complied with the terms and conditions outlined in the documents they signed so as to entitle them to a HMGP grant. Maureen testified specifically at trial that she and her husband "kept up [their] part of the bargain" with OCD. However, OCD dismisses this testimony as being "entirely self-serving."

The trial court obviously accepted Maureen testimony that she and her husband fulfilled their obligations under the contract. Moreover, the record contains no evidence contradicting Maureen testimony. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference be given to the trier-of-fact's findings. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). The manifest error-clearly wrong standard of review is applied not only due to the trial court's better capacity to evaluate live witnesses, as compared with the appellate court's access to only a cold record, but also upon the proper allocation of trial and appellate functions between the respective courts. Therefore, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Henderson v. Nissan Motor Corporation , 03-606 (La. 2/6/04), 869 So.2d 62, 69. Based on our review, we cannot say the trial court was manifestly erroneous or clearly wrong in accepting Maureen's testimony on this issue.

We also find no merit in OCD's alternative argument that, at best, any contract between the parties was aleatory in nature, dependent upon an uncertain event - a positive outcome to the Hoskins' grant application - that OCD maintains never happened. Thus, OCD asserts it owed no obligation to the Hoskins under the aleatory contract. Contrary to OCD's arguments, the record indicates there was a positive outcome to the Hoskins' grant application. This positive outcome is reflected in the fact that both the covenant agreement and the advance disbursement agreement/affidavit indicate the Hoskins had been awarded a HMGP grant. The fact that someone from OCD telephoned the Hoskins to notify them they had been awarded a HMGP grant is further evidence of the positive outcome to their grant application.

Finally, OCD argues that neither the documents offered in support of Maureen's claim nor any other evidence established the Hoskins' entitlement to a grant in the maximum amount of $ 100,000.00. OCD contends it had discretion in the amount awarded, and the record contained insufficient evidence for the trial court to base the value of any grant. We disagree.

Although parol evidence is inadmissible to vary the terms of a written contract, when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, parol evidence is admissible to clarify the ambiguity and to show the intention of the parties. McCarroll v. McCarroll , 96-2700 (La. 10/21/97), 701 So.2d 1280, 1286 ; Martin Exploration Company v. Amoco Production Company , 93-0349 (La. App. 1st Cir. 5/20/94), 637 So.2d 1202, 1205, writ denied, 94-2003 (La. 11/4/94), 644 So.2d 1048. As OCD points out, the documents relied upon by Maureen do not establish the amount of the grant awarded to the Hoskins. The failure of the documents to state the grant amount creates an uncertainty on this point. Accordingly, parol evidence was admissible to clarify the intention of the parties regarding the amount awarded to the Hoskins. See McCarroll , 701 So.2d at 1286 ; Martin Exploration Company , 637 So.2d at 1205.

In the instant case, Maureen testified an OCD employee notified the Hoskins by telephone in the middle of December 2009 that they had been awarded a HMGP grant in the amount of $ 100,000.00. She further testified that it was only after receiving this communication that she and her husband executed the covenant agreement, the advance disbursement agreement/affidavit, and the other documents they signed. The trial court apparently credited Maureen's testimony regarding what the Hoskins were told concerning the amount of the grant they were awarded. When factual findings are based on the credibility of witnesses, the factfinder's decision to credit a witness's testimony must be given great deference by the appellate court. Amitech U.S.A., Ltd. , 57 So.3d at 1058. In view of this standard of review, we cannot say the court was manifestly erroneous in finding the intent of the parties was for the Hoskins to receive the maximum grant amount of $ 100,000.00.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, OCD argues Maureen did not carry her burden of proving entitlement to mental anguish damages. OCD contends Maureen experienced only normal annoyance, worry, and inconvenience as a result of not receiving the HMGP grant, noting there was no evidence of her being treated for mental anguish as a direct result of its actions. OCD further argues that because the Hoskins had already incurred the financial obligations of building their new home before even applying for the HMGP grant, they were in no worse position when they failed to receive grant funds than they were before applying for the grant.

Under Louisiana contract law, damages for nonpecuniary loss such as emotional distress arising from a breach of contract are recoverable if the contract was intended to gratify a nonpecuniary interest, i.e. , the contract is about something other than money, and the obligor knew, or should have known, that his failure to perform would cause that kind of loss. La. C.C. art. 1998 ; Matherne v. Barnum , 11-0827 (La. App. 1st Cir. 3/19/12), 94 So.3d 782, 791, writ denied, 12-0865 (La. 6/1/12), 90 So.3d 442 ; Veal v. Wells Fargo Bank, N.A. , (E.D. La. 2016), 2016 WL 6024534 at *6. Whether the gratification of a non-pecuniary interest is the principal object of a contract is a question of fact that should not be set aside absent manifest error. Matherne , 94 So.3d at 791 ; Miller v. Thompson , 542 So.2d 96, 98 (La. App. 1st Cir.), writ denied, 544 So.2d 407 (La. 1989).

The trial court did not explicitly find that the object of the contract between the Hoskins and OCD was nonpecuniary, nor did it give any reasons justifying its award for mental anguish. To the extent the trial court may have concluded the gratification of a non-pecuniary interest was the principal object of the contract between the Hoskins and OCD, that conclusion was manifestly erroneous and unsupported by the record. As previously stated, the principal object of the contract between the parties was for the Hoskins to receive a HMGP grant to allow them to undertake certain mitigation measures in building their new home. This object was clearly pecuniary in nature and was not for the gratification of any significant non-pecuniary or intellectual interest.

In support of the trial court's mental anguish award, Maureen cites several cases where mental anguish damages were awarded in situations involving contracts for construction of homes and their appurtenances. In those cases, which she asserts are similar to the present one, the courts determined that the contracts were also meant to gratify a nonpecuniary interest. Thus, Maureen contends the trial court properly concluded that the contract between the parties gratified a nonpecuniary interest since she and her husband were rebuilding what had been their long-time family home where they had raised their six children.

These contentions are meritless. The courts in Floyd v. Wells Fargo Home Mortgage Company , 848 F.Supp.2d 635, 645 (E.D. La. 2012) and Veal , 2016 WL 6024534 at *6, found that a mortgage or loan contract does not by its nature satisfy a nonpecuniary interest. Similarly, we find that the interest served by the contract between the Hoskins and OCD was strictly pecuniary in nature and was not intended to gratify any nonpecuniary interest. Accordingly, the trial court erred in awarding Maureen damages for mental anguish, and that award is reversed. See La. C.C. art. 1998.

CONCLUSION

For the reasons assigned, the portion of the trial court judgment awarding plaintiff, Maureen R. Hoskins, $ 9,600.00 for mental anguish damages is reversed. The trial court judgment is affirmed in all other respects. The costs of this appeal, totaling $ 4,916.50, are to be divided equally between plaintiff, Maureen R. Hoskins, and defendant, the State of Louisiana, Division of Administration, Office of Community Development.

REVERSED IN PART; AND AFFIRMED IN PART.

      In a pilot reconstruction project, as opposed to an elevation project, the existing structure was demolished and a new code-compliance structure was constructed in its place.

      UCG were guidelines FEMA established as to what it considered to be reasonable costs for pilot reconstruction projects.

      The delineated terms and conditions included requirements that the Hoskins provide OCD with certain documents and permits and complete the mitigation project within certain time limits.

      While the trial court's judgment does not expressly state whether the mental anguish award was for Harry or Maureen's mental anguish, the court's oral reasons indicate it was the latter. Specifically, the award was necessarily for Maureen's mental anguish since Harry died in June 2013, approximately three and a half years after the contract was breached in December 2009, and the trial court stated it was awarding damages of $ 1,200.00 per year for eight years (a total of $ 9,600.00).

      The record does not clearly establish the exact date when construction began on the Hoskins' new home.

      Louisiana Civil Code article 1998 provides:
      Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
      Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.


author: HIGGINBOTHAM, J.

text:
    Samuel MARKOVICH and Diamond Properties Northshore, L.L.C. v. Donald J. VILLERE, Individually and in His Official Capacity as Mayor of the City of Mandeville; and Christopher Brown, Individually and in His Official Capacity as Building Official for the Department of Planning and Development, City of Mandeville
    2017 CA 1739
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 28, 2019
    Robert S. Reich, Lawrence R. Plunkett, Jr., Metairie, Louisiana, Counsel for Plaintiffs/Appellants, Samuel Markovich and Diamond Properties Northshore, L.L.C.
    Keith M. Detweiler, Gerald J. Nielson, Metairie, Louisiana, Counsel for Defendants/Appellees, Donald J. Villere, Individually and in His Official Capacity as Mayor of the City of Mandeville; and Christopher Brown, Individually and in His Official Capacity as Building Official for the Department of Planning and Development, City of Mandeville
    BEFORE: WHIPPLE, C.J., McCLENDON, HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

Plaintiffs, Samuel Markovich and Diamond Properties Northshore, L.L.C., seek review of a trial court judgment granting summary judgment in favor of the defendants and dismissing all of plaintiffs' claims against the defendants with prejudice.

FACTS AND PROCEDURAL HISTORY

Samuel Markovich is a commercial developer and landlord whose companies, including Diamond Properties Northshore, L.L.C., own properties in the City of Mandeville. Following Mr. Markovich's acquittal of alleged violations of Mandeville's Comprehensive Land Use Regulations Ordinances, Mr. Markovich and Diamond Properties filed the underlying suit against Christopher Brown, Code Enforcement Officer for Mandeville's Department of Planning and Development, and Donald Villere, the Mandeville mayor. Plaintiffs alleged that both defendants engaged in a series of unwarranted and malicious prosecutions against Mr. Markovich without cause. In addition, they alleged that Mr. Brown "negligently and/or maliciously published false, defamatory statements about plaintiffs to third parties" and that he tortiously interfered with Diamond Properties' contractual relationships.

In November 2010, Mr. Brown went to 3301 Highway 190 in Mandeville in response to a complaint about an unscreened dumpster and excessive trash on the property. Mr. Brown attested that a review of the tax rolls indicated that the property was owned by Mr. Markovich and/or Diamond Properties.

As a result of Mr. Brown's investigation, on September 22, 2011, the City of Mandeville, through its Planning Director, Louisette Kidd, issued a Warning Notice of Violation to Mr. Markovich and Diamond Properties to notify them that the property located at 3301 Highway 190 in Mandeville was in violation of Mandeville's city ordinances due to excessive trash and having an unscreened dumpster at the rear of the building. The notice indicated that a formal citation would issue within seventy-two hours of the notice unless the violation was corrected or the City's office was contacted and the question of the violation was satisfactorily resolved. Apparently, not receiving a satisfactory response, on October 3, 2011, Mr. Brown contacted Mr. Markovich via e-mail and informed him that the dumpster violation needed to be corrected. Mr. Markovich advised Mr. Brown that the dumpsters were not owned by Diamond Properties and he did not own the property at 3301 Hwy 190.

On October 21, 2011, Mr. Brown executed an Affidavit in the Mayor's Court for the City of Mandeville attesting that Mr. Markovich d/b/a Diamond Properties violated certain city ordinances related to the proper screening of trash and garbage cans. The affidavit prayed that Mr. Markovich be apprehended and held to answer for the charge. After Mr. Markovich failed to appear to retrieve his summons, a warrant was issued for Mr. Markovich's arrest.

Additionally, on October 21, 2011, the City issued a notice of a city ordinance violation to a tenant at 725 North Causeway Boulevard in Mandeville for work being performed on the exterior of a building at that location without a permit being obtained to do so. Mr. Brown's affidavit states that he went to the property at issue, where it appeared to him that there had been work performed on the exterior of the building, and no one had applied for and/or received a permit to do the work observed. It was later determined that the property was owned by Mr. Markovich. Mr. Markovich informed Mr. Brown that no exterior work was being done on the property.

On December 14, 2011, Mr. Brown executed an Affidavit in the Mayor's Court for the City of Mandeville attesting that on October 21, 2011, Acadian Properties II, L.L.C. c/o Samuel Markovich, Director, willfully violated city ordinances by "perform[ing] work requiring permits without obtaining necessary permits as required." Mr. Brown prayed that Acadian Properties II, L.L.C. c/o Samuel Markovich, Director, be summoned and held to answer for the charge.

Also, on December 14, 2011, the Mandeville Police Department issued Mr. Markovich a summons for failure to obtain a required permit for work done at 725 North Causeway Boulevard, as well as a summons regarding failure to properly screen the dumpsters at 3301 Highway 190.

On the same day, December 14, 2011, the City issued another notice to Samuel Markovich and/or Diamond Properties for violations at 3301 Highway 190 regarding certain ordinances, including the failure to properly screen the dumpsters at that location.

Mr. Markovich was summoned for both violations to appear in the Mandeville Mayor's Court for arraignment on February 13, 2012, but he did not appear. Thereafter, he was charged with contempt for failure to appear. The hearing was reset for March 12, 2012, but Mr. Markovich failed to appear. As a result, the court charged Mr. Markovich with contempt for failure to appear.

On March 16, 2012, the court issued a letter to Mr. Markovich stating that if he "d[id] not request a court date or make payment of $ 390.00 within ten (10) days from the date of this letter, a warrant [would] be issued for your arrest."

On October 23, 2012, Mr. Markovich was attending the Zoning and Planning Commission Meeting. Mayor Villere, when he saw Mr. Markovich at the meeting, had Ms. Kidd contact the Mandeville Police Department. At the meeting, Mr. Markovich was arrested and handcuffed in front of the members of the commission and those attending the meeting by the Mandeville Police Department for his contempt/failure to appear.

On June 10, 2014, the city prosecutor nolle prossed the charges against Mr. Markovich because he determined that there was insufficient evidence in the file to convict. Specifically, he said "with that information in the file...there's no way I could get a conviction out of that." He was then asked by the department head and the mayor why he nolle prossed the charges against Mr. Markovich and when he explained that there was insufficient evidence, he was told that they wanted to go forward with the case, and that Ms. Kidd would get him the information he needed to bring the charges. After Ms. Kidd provided the city prosecutor with additional information, the prosecutor reinstituted the charges against Mr. Markovich.

On October 15, 2014, Mr. Markovich stood trial in the mayor's court for the two re-instituted municipal charges and for four counts of contempt of court/failure to appear charges in the Mayor's Court for the City of Mandeville. After hearing the testimony of the witnesses and considering the evidence, the magistrate found Mr. Markovich guilty of one count of contempt of court for failure to appear and guilty of the municipal code violation regarding the failure to obtain permits. The magistrate acquitted Mr. Markovich on the remaining contempt charges and the charge related to screening of trash and dumpsters. Mr. Markovich applied his case bond to the $ 465.00 fine and was refunded the remaining balance of $ 925.00.

On November 13, 2014, Mr. Markovich filed a Motion for Appeal to appeal his mayor's court convictions to the 22nd Judicial District Court for the Parish of St. Tammany. Following a trial de novo, the 22nd Judicial District acquitted Mr. Markovich of all charges.

In the underlying petition filed on April 2, 2015, the plaintiffs allege that both the mayor and Mr. Brown maliciously prosecuted Mr. Markovich. Additionally, the plaintiffs allege that Mr. Brown defamed plaintiffs and tortiously interfered with plaintiffs' business relationships.

Two years after the suit was instituted, Mr. Brown and Mayor Villere filed a motion for summary judgment seeking dismissal of all claims against them. Plaintiffs opposed the motion for summary judgment.

Following argument, the trial court found that defendants were entitled to judgment as a matter of law. Thereafter, the trial court signed a judgment on July 11, 2017, dismissing all of the plaintiffs' claims against the defendants with prejudice.

Plaintiffs have appealed, assigning the following as error:

1) The trial court erred as a matter of law in finding that neither Villere nor Brown maliciously prosecuted Markovich for code or permit violations.
2) The trial court erred as a matter of law in finding that Brown made no defamatory statements concerning plaintiffs/appellants.
3) The trial court erred as a matter of law in finding that Brown did not interfere with Markovich's business relationships.

DISCUSSION

SUMMARY JUDGMENT STANDARD

Summary judgment is favored and "is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends." La. Code Civ. P. art. 966(A)(2). In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. In re Succession of Beard , 2013-1717 (La. App. 1st Cir. 6/6/14), 147 So.3d 753, 759-60.

The burden of proof is on the mover. If the mover will not bear the burden of proof at trial, however, the mover's burden does not require him to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. Thereafter, the burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)(1).

For purposes of summary judgment, because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Gaspard v. Graves, 2005-1042 (La. App. 1st Cir. 3/29/06), 934 So.2d 158, 160, writs denied, 2006-0882 and 2006-0958 (La. 6/16/06), 929 So.2d 1286 and 929 So.2d 1289. Summary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge, and malice. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751.

MALICIOUS PROSECUTION

The tort of malicious prosecution has been recognized from the early jurisprudence of this state, and while the cause of action in favor of one "whose liberty has been interfered with in an unwarranted manner" derives from the fault-reparation principles of La. Civ. Code art. 2315, our courts have imported certain restrictions and guidelines from the common law in defining the contours of the tort. Lemoine v. Wolfe, 2014-1546 (La. 3/17/15), 168 So.3d 362, 367. The limitations on the tort imposed by these restrictions reflect a careful balance between two societal interests: the right of all persons to resort to the courts for redress of wrongs and to be protected when acting in good faith on reasonable grounds in commencing either a civil or criminal proceeding, and the right of an individual to seek redress for the malicious prosecution and unwarranted employment of the judicial process against him. Id.

To prevail in an action for malicious prosecution, a plaintiff must prove: (1) the commencement or continuance of an original criminal or civil proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards resulting to plaintiff. Jeansonne v. Bonano, 2017-0828 (La. App. 1st Cir. 1/23/18), 241 So.3d 1027, 1030.

The trial court granted summary judgment on the grounds that plaintiffs could not prove the fourth element-the absence of probable cause for the proceeding. The crucial determination in regard to the absence of probable cause is whether the defendant had an honest and reasonable belief in the guilt of the plaintiff. Reese v. City of Baton Rouge, 93-1957 (La. App. 1st Cir. 10/7/94), 644 So.2d 674, 676-677. Verification may be required where the source of the information seems unworthy, or where further information about a serious charge would be readily available. Miller v. East Baton Rouge Parish Sheriff's Dept., 511 So.2d 446, 453 (La. 1987). Malice may be inferred from the lack of probable cause or inferred from a finding that the defendant acted in reckless disregard of the other person's rights. Miller, 511 So.2d at 453.

Application of the above law requires that the issues of whether probable cause and malice existed be determined by the trier of fact unless only one conclusion may reasonably be drawn from the evidence. See La. Code Civ. P. art. 966. The likelihood a party will prevail on the merits does not constitute a basis for rendition of summary judgment. Smith v. State, through Department of Administration, 96-0432 (La. App. 1st Cir. 5/9/97), 694 So.2d 1184, 1188, writ denied, 97-1493 (La. 11/14/97), 703 So.2d 1288.

Plaintiffs maintain that the evidence supports their claims of malicious prosecution against Mr. Brown and Mayor Villere such that this issue should be decided by a jury. Plaintiffs aver that the evidence establishes that Mayor Villere took an intense interest in Mr. Markovich throughout these proceedings, that Mr. Markovich was accused of violating the ordinance requiring certain dumpsters to be screened for property he did not own and that even after being informed of such, both Mr. Brown and Mayor Villere continued to press the charges. Additionally, plaintiffs allege that while the original citation for a violation at 725 North Causeway Boulevard arose from failure to obtain a permit for exterior work, Mr. Brown changed the charge to reflect a failure to obtain a permit for electrical work and provided an undated photograph after the charges were initially brought. Plaintiffs aver that while the city prosecutor nolle prossed the case, Mr. Brown and Mayor Villere continued to pursue claims against Mr. Markovich until they obtained a conviction on two charges in the mayor's court.

The deposition of the city prosecutor, offered in opposition to the motion for summary judgment, contains the following colloquy:

Q. Well, didn't you speak with the mayor after you nolle prossed the cases?
A. Only that I nolle prossed the cases, because the department heads called me first and asked me why did you nolle pros the cases. And I specifically told them why I nolle prossed the cases. And only in passing. I never had a meeting, per se, with the mayor, no.
Q. Okay. What discussion did you have with the mayor about the nolle prossing of the cases?
A. That they were nolle prossed. He said, "Well, why were they nolle prossed?" I said, "At the time that we knew we were going to trial and I" - the way it's set up, you know, we have on any given day on a trial day there may be twenty cases set for trial. On the cases that we think are going to trial I take those cases and I study those cases. What I found on those cases were what I considered defective designations of property descriptions; and that would correlate to differences in ownership, if, in fact, those designations were incorrect. I felt, as the prosecutor ... that time, with that information in the file that would be -- there's no way I could get a conviction out of that. So I felt the prudent thing to do was to nolle pros it. That's my job. That's the decision I made.
Q. And then the mayor asked you why did you nolle --
A. No.
Q. -- pros?
A. No. The department head asked me why.
* * *
... And I said, "Look at your records. Your records are not correct." Then I was given the explanation that the reason that it was like that is because they use the tax roles [sic.] for designation of property descriptions in violations. I said, "Well, that's not good enough for me as far as prosecution goes. I need definitive -- definitive ownerships. I need definitive property descriptions." And they said, "Well okay, we'll get that."

Once the prosecutor was supplied the additional information, he prosecuted Mr. Markovich for the ordinance violations and the contempt of court charges. After hearing the testimony of the witnesses and considering the evidence, the magistrate found Mr. Markovich guilty of one count of contempt of court for failure to appear in court and guilty of the municipal code violation of failure to obtain permits. However, the district court acquitted Mr. Markovich on all charges. In his deposition, Mr. Brown acknowledged that during his tenure as a building official with the city of Mandeville, he did not recall ever issuing a citation for a dumpster violation. Mr. Brown continued to pursue Mr. Markovich regarding the dumpster violation despite being informed that he did not own the property. Even after the city prosecutor made the decision to nolle pross the charges, the city continued to pursue Mr. Markovich for fairly minimal violations, one of which was on property that they were aware he did not own. Additionally, Mr. Markovich's summons to the mayor's court noted by the trial date "per mayor" which the city prosecutor agreed was unusual and acknowledged that he had never seen the Mayor personally involved in setting trial dates.

Considering the foregoing, we find at a minimum that plaintiffs have produced factual support sufficient to establish a genuine issue of material fact regarding whether Mr. Brown and Mr. Villere had an honest and reasonable belief that there was probable cause to arrest Mr. Markovich and whether they acted with malice in instituting and pursuing the claims against Mr. Markovich. As previously noted, the issues of whether probable cause and malice existed is to be determined by the trier of fact unless only one conclusion may reasonably be drawn from the evidence. Therefore, the jurisprudence prohibits summary judgment on the issue of malicious prosecution as the evidence presented on the motion for summary judgment does not preclude the determination that probable cause did not exists for this proceeding, nor does it preclude the determination that malice was present.

DEFAMATION

Plaintiffs also allege that Mr. Brown defamed them by improperly expressing his opinion about Mr. Markovich to two new tenants of Diamond Properties, Mary Kelly and Ron Gladney. The plaintiffs assert that the trial court erred in granting summary judgment on the defamation claims.

Four elements are necessary to establish a defamation cause of action: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Costello v. Hardy, 2003-1146 (La. 1/21/04), 864 So.2d 129, 139. The fault requirement is often set forth in the jurisprudence as malice, actual or implied. Id. Thus, in order to prevail on a defamation claim, a plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words that caused plaintiff damages. Id. at 139-40.

In Costello , the Louisiana Supreme Court explained:

Defamatory words are, by definition, words which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule. Words which convey an element of personal disgrace, dishonesty, or disrepute are defamatory. The question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. The question is answered by determining whether a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense. To be actionable, the words must be communicated or "published" to someone other than the plaintiff. (Internal citations omitted.)

Id. at 140. Words that expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one's personal or professional reputation, without considering extrinsic facts or circumstances, are considered defamatory per se. Id. When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Id.

When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, the elements of falsity, malice (or fault) and injury. Id. Malice (or fault), for purposes of the tort of defamation, is a lack of reasonable belief in the truth of the statement giving rise to the defamation. Id. at 143.

With regard to Diamond Properties' tenant, Mr. Gladney, plaintiffs contend that Mr. Brown sent Mr. Gladney a defamatory e-mail. The e-mail was in response to a prior telephone conversation between Mr. Brown and Mr. Gladney a few weeks before, wherein Mr. Brown conveyed that the property Mr. Gladney sought to lease was in violation of several city municipal code violations. The e-mail specifically noted the issues that needed to be resolved to bring the property into compliance with the city's regulations, including concerns related to parking lot maintenance, landscaping requirements, dumpster screening, loading ramp, bollard removal, and periodic trash removal/litter abatement. Mr. Brown courtesy copied Mr. Markovich on the e-mail. Plaintiffs aver that these alleged violations could subject the landowner to criminal charges such that the statements are defamatory per se.

The principle asserted by plaintiffs is overly broad. Imputation of criminal behavior is defamatory per se where the allegation imputes a serious criminal offense or involves one's moral turpitude. The statements here, even if they could ultimately result in criminal prosecution, do not rise to that level. Rather, they involve only technical violations of land use regulations. See, e.g., Prosser and Keeton, The Law of Torts, § 112 Defamation (5th ed. 1984) ("With the extension of criminal punishment to many minor offenses, it was obviously necessary to make some distinction as to the character of the crime, since a charge of a traffic violation, for example, would not exclude a person from society, and today would do little, if any, harm to his [or her] reputation at all."); see also Elder, Defamation: A Lawyer's Guide, § 1:16 Slanderous Imputation of a Crime (July 2018 Update) ("[T]he courts have reached an explicit consensus that a slanderous imputation of crime is actionable per se only if it 'involves a major social disgrace.' ") see further, Smolla, 2 Law of Defamation, § 7:12 Four common-law slander per se categories-Imputation of criminal conduct-In general (May 2018 Update) ("Courts do, at times, enforce seriously that a crime be 'infamous' or 'serious' in order to qualify as defamation per se.").

Further, nothing suggests that providing a lessee a list of purported city ordinance violations in order to help the lessee open for business is defamatory or that Mr. Brown sent the list of purported violations with a malicious intent. In his affidavit, Mr. Brown explained that the e-mail was sent to provide Mr. Gladney information so he could bring the property that was leased by his store, Home Goods, into compliance with the city's municipal code. Although it was later determined that the violations had been grandfathered in because there had been no major change to the use of the building, Mr. Brown attested that at the time he sent the e-mail, he had no reason to believe that any of the potential code violations listed were grandfathered in and did not have to be brought into compliance. Also, the evidence offered in support of summary judgment reflects that Mr. Gladney's store applied for and received a building permit and a certificate of occupancy from the City of Mandeville. Finally, despite the e-mail, Mr. Gladney leased the property at issue from Mr. Markovich.

With regard to Diamond Properties' other new tenant, Ms. Kelly, Mr. Brown told her that Mr. Markovich had "some issues outstanding with him with other properties." Ms. Kelly also indicated that Mr. Brown stated that Mr. Markovich was not the "kind of person" someone would want to rent from.

Even assuming that the statements, when taken together, are defamatory, Mr. Markovich has failed to come forward with evidence to show that he can meet his burden of proof at trial as to the fourth element of a defamation claim-i.e. , that the statements made to Ms. Kelley injured him. Despite Mr. Brown's statements, the record establishes that Ms. Kelly subsequently opened her business, Accurate Auto & Tire, and continued leasing the property from Mr. Markovich for the two-year term of the lease and then on a month-to-month basis thereafter.

We recognize that the injury resulting from a defamatory statement may include nonpecuniary or general damages such as injury to reputation, personal humiliation, embarrassment and mental anguish even when no special damage such as loss of income is claimed. Costello, 864 So.2d at 141. Regardless of the type of injury asserted, however, a plaintiff must present competent evidence of the injuries suffered and must also demonstrate that the defamatory statements were a substantial factor in causing the harm. Id. Plaintiffs have failed to present any evidence to show that they will be able to meet their burden of proof at trial that they suffered any type of injury from these statements. Accordingly, we conclude that the trial court did not err in granting summary judgment in favor of Mr. Brown on the defamation claims. Plaintiffs' second assignment of error is without merit.

TORTIOUS INTERFERENCE WITH BUSINESS

Louisiana courts have recognized a cause of action for tortious interference with business relations. See Bogues v. Louisiana Energy Consultants, Inc., 46,434 (La. App. 2d Cir. 8/10/11), 71 So.3d 1128, 1134. In Bogues , the court explained:

The cause of action for tortious interference with business derives from [La. Civ. Code] art. 2315. Tortious interference is based on the principle that the right to influence others not to enter into business relationships with others is not absolute. Louisiana law protects the businessman from "malicious and wanton interference," though it permits interferences designed to protect legitimate interests of the actor. A plaintiff bringing a claim for tortious interference with business must ultimately show "by a preponderance of the evidence that the defendant improperly influenced others not to deal with the plaintiff." Significantly, it is not enough to allege that a defendant's actions affected plaintiff's business interests; the plaintiff must allege that the defendant actually prevented the plaintiff from dealing with a third party. [Internal Citations Omitted.]

Id. at 1134-35.

On appeal, we note that plaintiffs have not shown that they will be able to meet their burden of proof at trial to show that Mr. Brown tortiously interfered with any business relationships. Specifically, as noted above, there is no evidence to indicate that any representations by Mr. Brown affected the business relationship between Mr. Markovich and Ms. Kelly or Mr. Markovich and Mr. Gladney. Accordingly, we find no error by the trial court granting the motion for summary judgment in favor of Mr. Brown with regard to plaintiffs' tortious interference with business claims. Plaintiffs' third assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we reverse the July 11, 2017 trial court judgment insofar as it dismissed plaintiffs' claims for malicious prosecution. We affirm the portion of the trial court judgment which granted the defendants' motion for summary judgment regarding plaintiffs' defamation and tortious interference with contract claims. Costs of this appeal are to be divided between plaintiffs, Samuel Markovich and Diamond Properties Northshore, L.L.C. and defendants, Christopher Brown, and Donald Villere.

REVERSED IN PART AND AFFIRMED IN PART.

McClendon, J. dissents in part and assigns reasons

Theriot, J. dissents in part for the reasons assigned by J. McClendon.

McCLENDON, J., dissenting in part.

I disagree with the majority's conclusion that the trial court erred in granting summary judgment on the malicious prosecution claim. Actions for malicious prosecution have never been favored, and, in order to sustain them, a clear case must be established, where the forms of justice have been perverted to the gratification of private malice and the willful oppression of the innocent. McClanahan v. McClanahan , 11-284 (La.App. 5 Cir. 12/28/11), 82 So.3d 530, 534, (citing Johnson v. Pearce, 313 So.2d 812, 816 (La. 1975) ). Plaintiffs failed to show that they would be able to meet this burden at trial.

As noted by the majority, although the city prosecutor initially nolle prossed the charges, he prosecuted Mr. Markovich for the charges after being supplied with the additional information he requested. In his affidavit, Mayor Villere confirmed that he "had no role in determining whether to go forward with the two citations issued to Markovich" and "[a]t no time was [he] consulted by the [c]ity prosecutor on whether to prosecute Markovich." Additionally, a magistrate ultimately convicted Mr. Markovich of two of the six charges, including one of the ordinance violations.

The record also establishes that Mr. Markovich failed to appear in court a number of times when summoned to address these purported violations. Neither Mr. Brown nor Mayor Villere were responsible for the arrest warrants issued due to Mr. Markovich's failure to appear. Additionally, Mr. Markovich does not assert that there was a lack of probable cause for the contempt charges.

I recognize that the district court held a new trial and Mr. Markovich was acquitted on all charges. Mr. Markovich asserts that this confirms a lack of probable cause for the charges. However, there is nothing in the record to indicate the basis of the district court's acquittal. Moreover, it is not sufficient on the part of the plaintiff to show that he was acquitted of the charge; he must prove that there was no reasonable ground for it. Grant v. Deuel, 3 Rob. 17, 20 (La. 1842). While the acquittal could arguably meet the third element of a malicious prosecution claim, i.e., the bona fide termination in favor of the plaintiff, plaintiffs have not shown that they can meet their burden of proof at trial to show that there was a lack of probable cause to institute the proceeding.

Considering the foregoing, I find no error in the trial court's conclusion that "[a]lthough plaintiffs have produced evidence that defendants were involved in the events leading to Mr. Markovich's arrest and prosecution, the evidence does not ... contradict ... that there was probable cause provoking Mr. Markovich's arrest and the institution of the proceedings in City Court." Accordingly, I dissent to the extent that majority concludes that genuine issues remain with regard to the malicious prosecution claim.

      According to Mr. Brown, the City of Mandeville uses the tax rolls to verify property addresses and property owners for citations it might issue for code violations.

      Mr. Brown hand-delivered the notice on October 24, 2011 to Michelle Kelly, who is one of Mr. Markovich's tenants and owner of Accurate Auto & Tire.

      According to the defendants, on November 12, 2014, the City of Mandeville also filed a Motion for De Novo Appeal to the 22nd Judicial District Court, which was eventually denied.

      We note that Mr. Markovich attested that he "suffered humiliation, embarrassment, and a loss of reputation" when he was arrested at the planning and zoning meeting in front of all the attendees. However, the arrest does not qualify as a defamatory action insofar as it is not a false and defamatory statement concerning another.


author: CRAIN, J.

text:
    STATE of Louisiana v. Toronzo THOMPKINS
    NO. 2018 KA 1032
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 27, 2019
    Kristine Russell, District Attorney, Joseph S. Soignet, Assistant District Attorney, Thibodaux, Louisiana, Attorneys for Plaintiff/Appellee, State of Louisiana
    Gwendolyn K. Brown, Baton Rouge, Louisiana, Attorney for Defendant/Appellant, Toronzo Thompkins
    BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

The defendant, Toronzo Thompkins, was convicted of second degree murder and negligent homicide. For second degree murder, he was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, and for negligent homicide, he was sentenced to five years at hard labor, with the sentences ordered to run concurrently. The defendant appeals, challenging the trial court's denial of post-trial motions. We affirm.

FACTS AND PROCEDURAL HISTORY

On September 22, 2013, Nikki Landry and Henry Lefort were found in Landry's apartment, both dead from multiple gunshot wounds. At that time, the defendant was incarcerated waiting for trial to begin the next day on a drug-related offense. Landry, a confidential informant for the Lafourche Parish Drug Task Force, was to testify for the state at the defendant's trial. Landry's identity had been kept confidential until earlier that month when the trial court ordered it disclosed. After being convicted of the drug-related offense, the defendant bragged to the Drug Task Force supervisor that the supreme court would throw his case out because the state had no witness.

Following the police investigation of the double homicide, the defendant's son, Traveyon Blackledge, was arrested, and later convicted, on two counts of second degree murder. See State v. Blackledge , 17-1130, 2018 WL 913745 (La. App. 1 Cir. 2/16/18), writ denied, 18-0433 (La. 10/29/18), 254 So.3d 1208. Although he was incarcerated at the time of the murders, the defendant was also a suspect because the confidential informant was killed the day before his drug trial was to begin. Telephone calls the defendant made in the days preceding the murders established the defendant sought to have Landry killed to prevent her from testifying against him at his drug trial. The recorded calls were played for the jury at the defendant's murder trial. The state argued the defendant used coded language in the recordings to order Blackledge to kill Landry, and that Lefort was killed at Landry's apartment simply because he was at the wrong place at the wrong time. The defendant was convicted as a principal in the second degree murder of Nikki Landry and the negligent killing of Harry Lefort.

DISCUSSION

In this appeal, the defendant solely challenges the trial court's denial of his post-trial motions for new trial and disclosure of a juror's identity. In the motions, the defendant argued that during trial he encountered a juror in the hallway while law enforcement officers were escorting him to the bathroom. The defendant asserted the juror could see and hear the officers guarding him and ordering persons to clear the hallway. The defendant claimed he was handcuffed, his legs may have been shackled under his clothing, and the officers referred to him as the "prisoner" or "inmate" in front of the juror. The defendant argued for a new trial because his "right to be brought into court with the appearance, dignity[,] and self-respect of a free and innocent man [was] violated before a member of the jury standing in judgment prior to jury deliberation and verdict." In a companion motion, the defendant sought the name and address of the juror he encountered so he could subpoena her to appear and testify about the manner and degree the encounter affected her verdict.

At the hearing on the motions, the state argued the jurors' identities were not hidden from the defendant at trial, and the juror he encountered in the hallway could have been identified if an objection had been timely made. The trial court denied the motion to disclose the juror's identity, noting the trial involved the defendant's jailhouse telephone calls, which made it apparent to the jury the defendant was incarcerated. The trial court emphasized there was no contemporaneous objection about the hallway encounter, which prevented the trial court from addressing the issue, including possibly using an alternate juror. The trial court also noted no juror had come forward to raise the issue.

Against the advice of counsel, the defendant testified in support of the motion for new trial. He described his version of the juror encounter and said he told his attorney about the incident when he returned to his seat. According to the defendant, that attorney advised he would "make the argument." The defendant said he told his second attorney about the incident after realizing the first attorney was not raising the issue. The defendant said he knew he was not in a position to object himself and feared he would "miss [his] argument." The defendant testified the second attorney (who represented the defendant at the hearing on the motion for new trial) said he would make the objection but did not.

Defense counsel argued a new trial should be granted because the evidence in no way placed the defendant at the murder scene. The trial strategy was to let the jury know the defendant was incarcerated, making incarceration an alibi. Defense counsel also argued the jailhouse recordings did not include any admissions of guilt, and there was no evidence of coded inculpatory language.

The trial court denied the motion for new trial, adopting its reasoning for not disclosing the juror's identity. The trial court referenced the defendant's testimony that his attorneys knew of the hallway encounter, but did not object. The trial court further noted it was an odd tactical decision to disclose the defendant's incarceration to the jury as proof it was physically impossible for the defendant to shoot the victims, then complain about an officer clearing the hallway as the defendant returned to the courtroom.

On appeal, the defendant argues the trial court erred in denying the motion for new trial because of his encounter with the juror in the hallway.

Louisiana Code of Criminal Procedure article 841 pertinently provides, "An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence." The contemporaneous objection rule provides the trial court notice and the opportunity to cure an alleged irregularity or error, and prevents a party from gambling for a favorable outcome then appealing when the error could have been addressed by an objection. State v. Lanclos, 07-0082 (La. 4/8/08), 980 So.2d 643, 648. The failure to make a contemporaneous objection prior to verdict waives the alleged error or irregularity and precludes the defendant from raising it on appeal. See State ex rel. Miller v. Henderson , 329 So.2d 707, 712 (La. 1976) (setting forth different legal standards depending on whether the objection is made at trial or in application for post-conviction relief for reviewing issues related to handcuffing and shackling a defendant); State v. York, 13-1529, 2014 WL 1203207, p.8 (La. App. 1 Cir. 3/24/14), writ denied, 14-1047 (La. 4/17/15), 168 So.3d 392.

The defendant's testimony established his attorneys knew of the juror encounter but did not object, choosing to wait until after the verdict to raise the issue as the basis for a new trial. The untimely objection in the motion for new trial failed to resurrect the issue waived by lack of a contemporaneous objection. See La. Code Crim. Pro. art. 841 ; State v. Fink, 255 La. 385, 231 So.2d 360, 365 (1970) ; State v. Washington, 225 La. 1021, 74 So.2d 200, 202-03 (1954) ; State v. Pineda, 18-0512, 2018 WL 6718574, p.3 (La. App. 1 Cir. 12/21/18) ; State v. Hutsell, 17-0112 (La. App. 4 Cir. 4/18/18), 241 So.3d 542, 556-57. The trial court correctly denied the motion for new trial urged on that basis. For the same reasons, the trial court correctly denied the motion to disclose the identity of the juror.

CONVICTIONS AND SENTENCES AFFIRMED.

      This court affirmed the defendant's conviction for the drug-related offense, distribution of cocaine, his adjudication as a third-felony habitual offender, and his life sentence. See State v. Thompkins, 14-0137, 2014 WL 4667593 (La. App. 1 Cir. 9/19/14) (rejecting the argument that the video of Landry purchasing drugs from the defendant should have been excluded from evidence because it was hearsay and violated the Confrontation Clause of the Sixth Amendment, and affirming the conviction, but vacating the sentence and remanding for resentencing); and see State v. Thompkins, 15-0117, 2015 WL 5516080 (La. App. 1 Cir. 9/18/15) (after remand, affirming the defendant's adjudication as a third-felony habitual offender and enhanced sentence), writ denied, 14-2460 (La. 10/9/15), 178 So.3d 997.

      The motion sought the names and addresses of all jurors comprising the jury; however, defense counsel later clarified that he sought only the name and address of the single juror.

      The trial court further found no merit to the argument that the evidence did not support the defendant's conviction and denied his motion for post-conviction judgment of acquittal.

      If an alleged error is so significant that it violates a fundamental right, then, to preserve the requirements of due process, the error is reviewable on appeal even absent a contemporaneous objection. See La. Code Crim. Pro. art. 920(2) ; State v. Arvie, 505 So.2d 44, 47 (La. 1987) ; State v. Howard, 18-0317 (La. App. 1 Cir. 9/21/18), 258 So.3d 66, 84 n.8 ; see also State v. Foret, 479 So.2d 526, 527-28 (La. App. 1 Cir. 1985). To meet the exception to the contemporaneous objection requirement, the error must cast substantial doubt on the reliability of the fact-finding process. Howard, 258 So.3d at 84 n.8. That standard is not met here.