Opinion
NUMBER 2013 CA 1840
05-06-2014
JAUVE' COLLINS v. TONY CLAYTON, CHIEF FELONY PROSECUTOR
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Eighteenth Judicial District Court
In and for the Parish of West Baton Rouge, Louisiana
Docket Number 40,594
Honorable J. Robin William Dupont, Judge Presiding
Jauve' Collins
Angola, LA
In Proper Person
Elizabeth Engolio
Plaquemine, LA
Counsel for Defendant/Appellee
Tony Clayton
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WHIPPLE, C.J.
Plaintiff, Jauve' Collins, an inmate in the custody of the Louisiana Department of Public Safety and Corrections confined to the Louisiana State Penitentiary at Angola, Louisiana, appeals a judgment sustaining defendant's peremptory exception raising the objection of prescription and dismissing his petition for damages. For the following reasons, we amend the judgment to dismiss Collins' claim on a different basis than the trial court and, as amended, affirm.
On February 13, 2013, Collins filed a petition for damages, naming as defendant Tony Clayton, in his purported capacity as "Chief Felony Prosecutor." Collins alleged that on or about September 29, 2009, Clayton defamed him by communicating and testifying that Collins would not honor a five-year plea deal (in a matter involving Collins's co-defendants in a criminal case), but wanted a fifteen-year sentence instead. Collins alleged that he did not discover this allegedly false statement until January 15, 2013. In support, Collins attached a newspaper article from the Baton Rouge Advocate, dated September 30, 2009, that was printed from the internet on January 15, 2013.
In response to Collins's petition, Clayton filed a peremptory exception raising the objection of prescription, contending that Collins's attempt to extend the prescriptive period to the date that he claimed he learned of the contents of the newspaper article is "unfounded [and] self-servingly suspect." Following a hearing, the trial court granted Clayton's exception of prescription and dismissed Collins's suit.
JUDGMENT ON APPEAL
A judgment reflecting the trial court's ruling and dismissing the suit was signed on September 25, 2013. From this judgment, Collins appeals.
We note that there were actually two judgments signed by the trial court herein. The original judgment granting the exception of prescription was signed on September 25, 2013, but incorrectly listed the date of the hearing on the exception as July 22, 2013. Notice of judgment was mailed to the parties on September 30, 2013. Thereafter, pursuant to Clayton's Motion to Amend Judgment, which was filed on October 17, 2013, the trial court signed an amended judgment on the date the motion was filed, October 17, 2013, which was substantively the same as the prior September 25, 2013 judgment, in that it contained the same language granting the exception of prescription, but corrected the hearing date to reflect that the hearing was actually held on July 16, 2013.
Generally, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation. LSA-C.C.P. art. 1951. Thus, a judgment may be amended by the court where the amendment takes nothing from or adds nothing to the original judgment. Frisard v. Autin, 98-2637 (La. App. 1st Cir. 12/28/99), 747 So. 2d 813, 818, writ denied, 2000-0126 (La. 3/17/00), 756 So. 2d 1145. Moreover, the correction of a date has been held to be the correction of an obvious clerical error that is not a substantive change to the judgment. See Lewis v. First State Bank & Trust Co., 413 So. 2d 671, 672 (La. App. 1st Cir. 1982). Nonetheless, LSA-C.C.P. art. 1951 provides the trial court power to correct judgment errors only before an appeal has been taken. See LSA-C.C.P. art. 1951, Official Revision Comments—1960, Comment (c).
In the instant case, and further complicating matters, Collins filed his motion for appeal on July 22, 2013, after the hearing in this matter, but prior to the signing of either the original or amended judgment on the exception at issue, and the trial court granted the appeal on July 29, 2013, also before either judgment was signed. Louisiana Code of Civil Procedure article 1911 provides in part that, except as otherwise provided by law, every final judgment shall be signed by the judge and that no appeal may be taken from a final judgment until this requirement has been fulfilled. Thus, an appeal granted before the signing of a final judgment is subject to dismissal until the final judgment is signed. However, once the final judgment has been signed, any previously existing defect is cured. Bergeron v. Argonaut Great Central Insurance Company, 2010-0842 (La. App. 1st Cir. 3/25/11), 64 So. 3d 255, 261. Accordingly, while Collins prematurely filed his motion for appeal on July 22, 2013, which was likewise prematurely granted by the trial court on July 29, 2013, this defect was cured upon the signing of the original September 25, 2013 judgment.
One further procedural difficulty herein is that after filing his motion for appeal and after the trial court signing the order of appeal (but also before any judgment was signed herein), Collins also filed a pleading entitled "Motion to Amend Judgment and/or Vacate and Set Aside Judgment" on the basis that defense counsel made misstatements at the hearing on the exception of prescription. Given that the substance of a final judgment generally may be altered only by a timely motion for new trial, a timely appeal, or an action in nullity, Spring v. Edwards, 2009 CU 0873 (La. App. 1st Cir. 12/7/09), 2009 WL 5213870 (unpublished), and considering the procedural posture of this suit when this pleading was filed, this pleading, regardless of its title, is essentially a motion for new trial. However, a party waives any right that he might otherwise have had to a new trial by seeking an order of appeal, which divests the trial court of jurisdiction. Breithaupt v. Houston General Insurance Company, 398 So. 2d 608, 612-613 (La. App. 3rd Cir. 1981); Cowen v. Cowen, 375 So. 2d 118, 120 (La. App. 3rd Cir. 1979). Thus, Collins's filing of a motion for appeal, which had in fact been granted (albeit prematurely), could be viewed as a waiver of his right to thereafter seek further review in the trial court. Alternatively, because the signing of the original judgment on September 25, 2013, had the effect of curing any defects in the premature motion and order of appeal, upon perfection of the appeal, Collins's "Motion to Amend Judgment and/or Vacate and Set Aside Judgment" was mooted. At the very least, this additional procedural defect, and possible impediment to the perfection of the prematurely requested and granted appeal, was certainly cured upon the denial of the motion on September 26, 2013, the day after the trial court signed the original judgment granting the exception of prescription and dismissing Collins's suit.
Although not applicable under the facts of the instant case, the jurisprudence has recognized in some instances an additional ground for amendment of a judgment by consent of the parties. See Villaume v. Villaume, 363 So. 2d 448, 451 (La. 1978); LaBove v. Theriot, 597 So. 2d 1007, 1010 (La. 1992).
Accordingly, upon the signing of the September 25, 2013 judgment (and, certainly, upon the September 26, 2013 denial of Collins's "Motion to Amend Judgment and/or Vacate and Set Aside Judgment" and the subsequent passage of the time delays for applying for a new trial without the timely filing of same by any other party), the instant appeal was perfected, and the trial court was divested of jurisdiction. Thus, when Clayton filed his Motion to Amend Judgment on October 17, 2013, the trial court had already been divested of jurisdiction. See generally Donley v. Hudson's Salvage LLC, 2013 CA 1499 (La. App. 1st Cir. 3/21/14) (unpublished), 2014 WL 1165871, and LSA-C.C.P. art. 2088.
Additionally, we note that LSA-C.C.P. art. 1951 was amended by Louisiana Acts 2013, No. 78, to require a hearing before a final judgment may be amended, unless the parties consent to the amendment or no opposition is filed after notice. In the instant case, an amended judgment was signed on the same day the motion to amend the judgment was filed, October 17, 2013. Thus, it is not clear whether a hearing was held or the parties consented to the amendment.
For these reasons, we conclude that the October 17, 2013 amended judgment, while seeking only to correct a clerical error, was nonetheless a nullity. However, this matter is properly before us on appeal of the September 25, 2013 judgment, and this court is empowered to correct the clerical error in the September 25, 2013 judgment under the authority provided by LSA-C.C.P. art. 2164. See Donley, 2014 WL 1165871 at 2. Nonetheless, because we are affirming the dismissal of Collins's suit on a different basis, any error as to the date the hearing on prescription was held becomes irrelevant.
DISCUSSION
On appeal, Collins contends that that the district court erred in granting the peremptory exception of prescription. We agree.
Claims for defamation are delictual in nature and are subject to LSA-C.C. art. 3492's one-year prescriptive period. However, this court has recognized that knowledge of the damage-causing publication by the plaintiff is required for the commencement of the one-year prescriptive period. Clark v. Wilcox, 2004-2254 (La. App. 1st Cir. 12/22/05), 928 So. 2d 104, 112, writ denied, 2006-0185 (La. 6/2/06), 929 So.2d 1252.
Collins alleges in his petition that he was unaware of the statements made on or about September 29, 2009, until he learned of them on January 15, 2013. Moreover, at the hearing on the exception, Collins explained that he did not discover the statements until later because he was in Angola at the time the statements were made. Clayton did not offer any evidence to rebut Collins's allegations that he was unaware of the alleged defamatory statements until January 15, 2013. Instead, Clayton countered that as a delictual action sounding in tort and subject to a one-year prescriptive period, the date Collins learned of the publication was irrelevant. The trial court agreed and dismissed on the basis of prescription because suit was filed more than one year after the alleged defamatory statements were made. In doing so on this basis, the trial court erred.
Nonetheless, after reviewing the allegation in Collins's petition, we find that Collins has failed to state a cause of action and that his suit should have been dismissed accordingly. As an appellate court, this court has the authority to raise an exception of no cause of action on its own motion, and, accordingly, we do so herein. LSA-C.C.P. art. 927(B); Ferrington v. Louisiana Bd. of Parole, 2003-2093 (La. App. 1st Cir. 6/25/04), 886 So. 2d 455, 458, writ denied, 2004-2555 (La. 6/24/05), 904 So.2d 741.
The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations presented. Generally, no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. Therefore, the court reviews the petition and accepts the well-pleaded allegations of fact as true, and the issue at trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to any relief sought. Ferrington, 886 So. 2d at 458-459.
Even accepting the allegations of Collins's petition as true, it is clear that he has not stated a cause of action for defamation. A cause of action for defamation arises out of LSA-C.C. art. 2315. Defamation involves the invasion of a person's interest in his or her reputation and good name. To maintain a cause of action for defamation, a plaintiff must prove: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. If any one of these required elements is lacking, plaintiff's cause of action fails. Sova v. Cove Homeowner's Assn'n, Inc., 2011-2220 (La. App. 1st Cir. 9/7/12), 102 So. 3d 863, 873. "Defamatory words" are defined as 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 the person to contempt or ridicule. Words that convey an element of personal disgrace, dishonesty, or disrepute are defamatory. Moreover, 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. Starr v. Boudreaux, 2007-0652 (La. App. 1st Cir. 12/21/07), 978 So. 2d 384, 389.
Collins's petition states only that Clayton will not be able to prove that Collins told him, before he went to trial, that he would not honor a "five-years deal" with his two alleged co-defendants, but wanted a fifteen-year sentence instead. In the copy of the newspaper article attached to the petition, and upon which Collins bases his claim that he was defamed, Collins highlighted the following statement:
Tony Clayton-prosecutor from the 18th JDC assigned to take over the case-testified Tuesday he told Dunn, Davis [the co-defendants] and their attorneys before Collins went to trial that he would not honor the five-year deal but wanted a 15-year sentence instead. [Emphasis added]
After reading the article as a whole, and in context as we must, Collins clearly has misinterpreted this statement. The statement was made in reference to a hearing on whether a plea deal involving Collins's two alleged co-defendants was enforceable. Thus, the "he" in the statement who rejected a plea bargain for the co-defendants is referring to Clayton, not Collins. Specifically, the statements referred to Clayton's decision to "take off the table" a plea agreement previously offered to Collins's co-defendants and took place as a result of a hearing on whether the co-defendants could force the (new) prosecutor to uphold a prior plea bargain purportedly offered to Collins's co-defendants in a criminal case. Collins has misinterpreted this statement to read that it refers to Collins telling Clayton that he would not honor the "five-year deal." However, the statement clearly is referring to Clayton's unwillingness to accept a "five-year deal" with the two co-defendants. Accordingly, we conclude that even accepting the allegations of Collins's pleadings as true, he has failed to state a cause of action. Even taking as true that Clayton made such a statement, the alleged statement which forms the basis of Collins's defamation claim is not defamatory as it neither concerns him nor harms his reputation.
While a plaintiff generally should be allowed to amend his demand if the grounds of the objection of no cause of action can be removed by amendment, we conclude that no amendment could possibly cure the deficiency in Collins's claim. LSA-C.C.P. art. 934. Accordingly, we agree with the trial court that Collins's suit should be dismissed with prejudice.
CONCLUSION
For the above and foregoing reasons, the September 25, 2013 judgment of the trial court, dismissing Collins's petition with prejudice, is hereby amended to provide that Collins' petition is dismissed with prejudice on the basis that he has failed to state a cause of action. As amended, the September 25, 2013 judgment is hereby affirmed. Costs of this appeal are assessed against plaintiff/appellant Jauve' Collins.
JUDGMENT OF DISMISSAL AMENDED AND, AS AMENDED, AFFIRMED.