Opinion
No. 2010 CA 0829.
December 22, 2010.
APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TANGIPAHOA, LOUISIANA DOCKET NUMBER 2008-0001013 HONORABLE ROBERT H. MORRISON, III, JUDGE PRESIDING.
James Sutterfield, New Orleans, LA, Counsel for Plaintiff/Appellee, First United Methodist Church of Hammond, Louisiana.
Richard Traina, Hammond, LA, Counsel for Defendant/Appellant, Denise Horton.
BEFORE: WHIPPLE, McDONALD, AND McCLENDON, JJ.
Defendant/plaintiff-in-reconvention, Denise Horton, appeals the judgment of the trial court, dismissing with prejudice her reconventional demand for damages for wrongful issuance of a temporary restraining order. Also before us is a motion to dismiss the appeal, filed by plaintiff/defendant-in-reconvention, First United Methodist Church of Hammond, Louisiana ("First United Methodist"). For the following reasons, we deny the motion to dismiss the appeal, but affirm the judgment of the trial court on appeal.
FACTS AND PROCEDURAL HISTORY
In early March 2008, Horton was being counseled by Reverend Joseph Donakey, the pastor of First United Methodist. Reverend Donakey was attempting to help Horton "work through" some stressful events in her life. However, Horton's conduct and behavior became increasingly alarming and seemingly obsessive toward Reverend Donakey, culminating in the events of March 5, 2008, which led to this litigation. On that particular day, Horton arrived at the church office several hours before her scheduled appointment with Reverend Donakey and positioned herself in front of Reverend Donakey's office door. When Reverend Donakey later arrived at the church office, Horton followed him into his office, closed the door, and threatened to harm "someone" if anyone attempted to enter or leave the office. Over the ensuing hours, Horton remained in Reverend Donakey's office, engaging in bizarre behavior and making threatening statements, such that Reverend Donakey was convinced that any attempt to leave his office would incite Horton and result in harm to someone. Eventually, the police and paramedics were summoned, and Horton was removed from the church office and taken by ambulance to North Oaks Medical Center.
Thereafter, on April 1, 2008, First United Methodist filed a petition for injunctive relief, naming Horton as defendant. Through its petition, First United Methodist sought a temporary restraining order (TRO) and requested that after a hearing, an injunction issue, based on allegations that Horton, who was at the time being held in the psychiatric facility at East Jefferson General Hospital, had engaged in threatening behavior and had the present capacity, if released, to cause great bodily harm or death to employees and/or members of First United Methodist.
Horton was in fact released from the psychiatric ward of East Jefferson on April 4, 2008, several days before the court issued a TRO herein.
The trial court issued a TRO on April 9, 2008, enjoining Horton from harassing, intimidating, or interfering with any member or employee of First United Methodist and further restraining her from entering any property owned or controlled by First United Methodist or its members and employees, without their permission. The trial court further ordered Horton to show cause on May 27, 2008, why an injunction should not issue. Thereafter, on April 10, 2008, Horton filed an answer and reconventional demand, contending that the TRO was wrongfully issued and seeking damages and attorney's fees for the wrongful issuance of the TRO.
On May 27, 2008, the scheduled date for the hearing on the request for preliminary injunctive relief, the matter was continued until June 30, 2008. Notably, the record contains no evidence that the previously issued TRO was ever reissued or extended. Instead, the hearing on the request for injunctive relief was again continued until July 21, 2008, and on that date, the parties agreed to the issuance of a preliminary injunction, reserving Horton's rights to proceed to trial on her reconventional demand for damages and attorney's fees based on the alleged wrongful issuance of the TRO.
Accordingly, the trial court issued a preliminary injunction, dated July 30, 2008, prohibiting Horton from entering any property owned or controlled by First United Methodist and from contacting any employee, officer, or member of the church about church operations and business or involving the allegations giving rise to this suit. However, the injunction did not prevent Horton from making any ordinary communications with persons who may be members or officers of the church on any issues not related to church operations or factors complained of in this suit or with the permission of the person contacted.
At the hearing on the request for a preliminary injunction the court initially questioned the parties about a "continuation of a temporary restraining order until the trial on the merits." However, the court then stated "if we grant a preliminary injunction today, by consent, certainly without prejudice to any damage claims just to maintain the status quo and we pick a trial date, it just seems more efficient to me." Moreover, the order actually issued by the trial court was a preliminary injunction, not a TRO. Indeed, the previously issued TRO could not have been extended or "continued" in that it had expired as a matter of law upon the expiration of 10 days, when no request to extend it was made. See LSA-C.C.P. art. 3604(A) (providing that the duration of a TRO is not to exceed 10 days and that the TRO, at any time prior to its expiration, may be extended by the court for one or more periods not exceeding 10 days each).
Thereafter, on November 30, 2009, First United Methodist filed a motion to dismiss its claim for a permanent injunction against Horton. In its motion, First United Methodist contended that since the March 5, 2008 episode that precipitated this action, Horton had continued to receive treatment recommended by her physicians. First United Methodist further contended that based on observations of Horton at depositions and after speaking with her treating physicians, its pursuit of a permanent injunction against Horton was no longer necessary in that Horton did not appear to present a threat to any of the individuals protected by the preliminary injunction. Additionally, First United Methodist moved to dissolve the preliminary injunction previously issued against Horton. Prior to trial of this matter, the trial court dismissed First United Methodist's claim for a permanent injunction and further dissolved the preliminary injunction previously issued against her.
Accordingly, when this matter proceeded to trial on December 15, 2009, the only remaining claim before the court was Horton's reconventional demand for damages and attorney's fees for wrongful issuance of the TRO. Following a bench trial on the merits of Horton's reconventional demand, the trial court rendered judgment, dismissing Horton's claims against First United Methodist. In written reasons for judgment, the trial court rejected Horton's contentions that the TRO was procedurally defective and further rejected her contention that there was no lawful basis for issuing a TRO. The court further noted that, even if it had determined that the TRO was wrongfully issued, it had discretion in assessing damages and attorney's fees, and it would not have made any such award given the facts and circumstances of this case.
From the judgment dismissing her reconventional demand, Horton appeals, contending that the trial court erred: (1) by issuing the TRO on the basis of First United Methodist's petition where the petition was verified by an individual who was not present at the church on March 5, 2008; (2) by issuing the TRO without endorsing on it the date and hour of its issuance; (3) by issuing the TRO and the preliminary injunction without requiring the posting of security; and (4) by issuing the TRO without notice and hearing and without stating why it was issued without notice and a hearing. As noted above, First United Methodist filed in this court a motion to dismiss Horton's appeal for lack of jurisdiction on the basis of LSA-C.C.P. art. 3612. Accordingly, we will first address the motion to dismiss the appeal.
MOTION TO DISMISS APPEAL
In its motion to dismiss Horton's appeal, First United Methodist contends that this court lacks jurisdiction to entertain the appeal pursuant to LSA-C.C.P. art. 3612(A). Paragraph A of LSA-C.C.P. art. 3612 provides that "[t]here shall be no appeal from an order relating to a temporary restraining order." In contending that this court lacks jurisdiction to review the trial court's judgment dismissing Horton's reconventional demand for damages, First United Methodist notes that in her four assignments of error, Horton sets forth arguments as to why the TRO was wrongfully issued. Thus, First United Methodist contends that "there is nothing before this [court] that it has jurisdiction to hear on appeal."
In Kinchen v. Kinchen, 256 La. 28, 235 So. 2d 81 (1970), the Louisiana Supreme Court discussed the applicability of LSA-C.C.P. art. 3612 to an order dissolving a TRO as opposed to its applicability to a money judgment for wrongful issuance of the TRO. In Kinchen, the trial court rendered a judgment dissolving a previously issued TRO, denying the request for a preliminary injunction, and awarding damages and attorney's fees for the wrongful issuance of the TRO, and the plaintiff appealed the judgment. Kinchen, 256 La. at 31, 235 So. 2d at 82. In addressing an issue as to the timeliness of the appeal, the Court specifically noted that pursuant to LSA-C.C.P. art. 3612, the plaintiff could not appeal from that portion of the trial court's judgment dissolving the TRO. Kinchen, 256 La. at 34, 235 So. 2d at 83.
However, the Court further noted that the other issue raised by the plaintiff on appeal was the propriety of the trial court's award of a money judgment for wrongful issuance of the TRO. The Court held that a money judgment for the wrongful issuance of a TRO, even when coupled with an interlocutory order in a preliminary injunction proceeding, is a final judgment to which LSA-C.C.P. art. 3612 makes no reference. The Supreme Court then concluded that the provisions of LSA-C.C.P. art. 3612, prohibiting an appeal from "an order relating to a [TRO]," were not applicable to final judgments for damages and attorney's fees for wrongful issuance of a TRO. Kinchen, 256 La. at 35, 235 So. 2d at 84; See also Ducote v. Couvillon, 401 So. 2d 621, 622 (La. App. 3rd Cir. 1981), and Carson v. Thomas, 342 So. 2d 1219, 1221 (La. App. 2nd Cir. 1977) (holding that a decree granting a money judgment for the wrongful issuance of a restraining order is a final judgment and is appealable).
The Court further noted that LSA-C.C.P. art. 3612 controls interlocutory orders rendered on injunctive issues, whereas the only appealable issue therein was from a final money judgment on the defendants' claim for damages for wrongful issuance of the TRO. Kinchen, 256 La. at 35-36, 235 So. 2d at 84.
Similarly, in Davis v. Raymond Petroleum, Inc., 396 So. 2d 600 (La. App. 3rd Cir. 1981), the Third Circuit rejected the argument that LSAC.C.P. art. 3612 governed an appeal from a judgment denying damages and attorney's fees for wrongful issuance of a TRO. In Davis, the trial court rendered judgment, declaring that the TRO previously issued therein had been wrongfully issued, but nonetheless denying the defendants' claims for damages and attorney's fees for wrongful issuance of the TRO, and the defendants appealed. The plaintiff then filed a motion to dismiss the appeal, contending that the judgment of the trial court was an "order relating to a temporary restraining order" and, thus, was non-appealable pursuant to the provisions of LSA-C.C.P. art. 3612. Davis, 396 So. 2d at 601-602.
In denying the plaintiff's motion to dismiss the appeal, the Third Circuit rejected the plaintiff's contention that the judgment denying damages and attorney's fees for wrongful issuance of the TRO was an "order relating to" a TRO which could not be appealed under the provisions of LSA-C.C.P. art. 3612. The appellate court noted that the only relief requested in the petition therein was a TRO and an injunction and that when the matter was ultimately tried in the trial court, the plaintiff withdrew his request for an injunction. Thus, under the particular circumstances of that case, as in the case before us, the only issue before the trial court was the defendants' demand for damages and attorney's fees. Davis, 396 So. 2d at 602. Accordingly, the court concluded that the judgment ultimately rendered by the trial court, which dismissed the defendants' demands for damages and attorney's fees, was a final judgment pursuant to LSA-C.C.P. art. 1841 in that it "determined the merits of the controversy between the plaintiff and defendants." The court therefore reasoned that because the judgment was a final, appealable judgment pursuant to LSA-C.C.P. art. 1841, the provisions of LSA-C.C.P. art. 3612 were not applicable. Davis, 396 So. 2d at 602.
Applying the reasoning and precepts of Kinchen and Davis, we note that in the instant case, the April 9, 2008 TRO expired as a matter of law after ten days, when no timely request was made for its extension. See LSA-C.C.P. art. 3604(A) and Davis, 396 So. 2d at 601. Moreover, upon the request of First United Methodist prior to the trial in this matter, the preliminary injunction was dissolved and First United Methodist's request for a permanent injunction was dismissed. Thus, the matter proceeded to trial on Horton's reconventional demand for damages only, and the judgment rendered by the trial court dismissing her reconventional demand determined in full the merits of the controversy between the parties. See LSA-C.C.P. art. 1841 and Davis, 396 So. 2d at 602.
Because the trial court's judgment on appeal herein was a final judgment dismissing Horton's reconventional demand for damages and attorney's fees, it is not governed by the provisions of LSA-C.C.P. art. 3612 and is, in fact, an appealable judgment. See Kinchen, 256 La. at 35-36, 235 So. 2d at 84, and Davis, 396 So. 2d at 602. For these reasons, the motion to dismiss Horton's appeal is denied.
DISMISSAL OF HORTON'S RECONVENTIONAL DEMAND
We now turn to Horton's appeal of the trial court's judgment dismissing her reconventional demand for damages and attorney's fees for alleged wrongful issuance of the TRO. As stated above, Horton has raised four assignments of error, challenging the trial court's ruling. Through these assignments of error, Horton avers that the trial court should have determined that the TRO was in fact wrongfully issued because: (1) the petition requesting the TRO was verified by an individual who was not present at the church on March 5, 2008; (2) the TRO was not endorsed with the date and hour of its issuance; (3) the TRO was issued without requiring the posting of security; and (4) the TRO was issued without notice and a hearing and without stating why it was issued without notice and a hearing.
Although Horton also avers in assignment of error number 3 that the preliminary injunction was issued without requiring the posting of security, Horton never sought damages for wrongful issuance of the preliminary injunction through any pleadings below. Indeed, as set forth above, Horton consented to the issuance of the preliminary injunction.
With regard to Horton's argument that the TRO was wrongfully issued because the individual who verified the petition did not witness the occurrences at the church on March 5, 2008, we note, as did the trial court in its written reasons, that LSA-C.C.P. art. 3603(B) provides that the verification "may be made by the plaintiff, or by his counsel, or by his agent." (Emphasis added). In the instant case, the party seeking injunctive relief was First United Methodist, which is not a natural person. Thus, the church could only act through its agent as clearly authorized by LSA-C.C.P. art. 3603(B). Moreover, the petition for injunctive relief filed by First United Methodist was verified by Mark Montz, who was a member of First United Methodist's Board of Trustees and who testified that to the best of his knowledge and belief, the allegations contained in the petition were correct and true.
We find Horton's reliance on the 1914 case of Smith v. Frohlich, 135 La. 733, 66 So. 163, 164 (1914), to be misplaced. In Smith, the Louisiana Supreme Court held that an affidavit made in conjunction with a request for an injunction was "practically no affidavit" when "made by a person apparently not connected with the suit." Smith, 135 La. at 735, 66 So. at 164. While the Court in Smith did not explain what it meant by "not connected with the suit," we cannot conclude that the trial court erred in its reliance on the verification of Montz, a member of the Board of Trustees of the plaintiff church. Accordingly, we find no merit to this argument.
With regard to Horton's remaining arguments as to the procedural correctness of the TRO, we note that the record does not bear out that these issues were specifically presented to the trial court for its consideration. Issues not submitted to the trial court for decision will generally not be considered by the appellate court on appeal. Vallo v. Gayle Oil Company, Inc., 94-1238 (La. 11/30/94), 646 So. 2d 859, 863 (La. 11/30/94); Salassi v. State, Department of Public Safety and Corrections, Administrative Hearing Section, 96-0321 (La. App. 1st Cir. 11/15/96), 684 So. 2d 1014, 1018. Thus, these issues are not properly before us. Nonetheless, even if these issues were raised below, we find no merit to Horton's remaining procedural complaints.
While in her answer and reconventional demand, Horton generally averred that the TRO was issued without compliance to LSAC.C.P. arts. 3603(A) and 3604(A), the record does not contain any specific allegations made in the trial court as to any alleged irregularities other than with regard to Horton's contention that a verification of the petition by Montz was inadequate and a contention that the underlying facts did not warrant a TRO. The transcript of the trial contains no argument by counsel for Horton as to any other alleged irregularities. Moreover, the record demonstrates that only those issues specifically raised by Horton were addressed by the trial court in dismissing Horton's reconventional demand.
Furthermore, and perhaps more importantly, we note that, in denying Horton's claim for damages and attorney's fees, the trial court made the alternative finding that even if the TRO were wrongfully issued, it would not award Horton any damages or attorney's fees under the specific facts of this case, and Horton has not appealed this finding by the trial court.
Pursuant to LSA-C.C.P. art. 3608, a trial court may award damages for the wrongful issuance of a TRO. Thus, the trial court's decision to award damages or not to award damages for a wrongfully issued TRO is discretionary, and that decision will not be reversed on appeal absent an abuse of the trial court's discretion. LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, Inc., 2006-0489 (La. App. 4th Cir. 4/16/08), 983 So. 2d 217, 229. Thus, even if we were to find that the TRO was wrongfully issued, Horton clearly would not be entitled to damages, given the trial court's determination that damages should not be awarded and Horton's failure on appeal to assign error to that finding. Moreover, even if Horton had assigned error to the trial court's decision not to award damages herein, we would find no abuse of discretion herein considering the record before us and the trial court's well-written and detailed reasons for judgment, which we attach hereto as "Appendix A" and make a part hereof.
We have omitted a portion of the trial court's reasons, which omitted portion is denoted by asterisks.
Accordingly, we find no merit to the contentions actually raised by Horton in her assignments of error.
CONCLUSION
For the above and foregoing reasons, the motion to dismiss Horton's appeal, filed by First United Methodist Church of Hammond, Louisiana, is denied. However, the December 26, 2009 judgment of the trial court, dismissing Horton's reconventional demand for damages, is affirmed. Costs of this appeal are assessed against defendant, Denise Horton.
MOTION TO DISMISS APPEAL DENIED; JUDGMENT AFFIRMED. Appendix A REASONS FOR JUDGMENT FACTUAL BACKGROUND
This action commenced as a petition for injunctive relief filed by First United Methodist Church of Hammond, Louisiana ("the Church") seeking a temporary restraining order against a member, Denise Horton, to prevent Ms. Horton from ". . . harassing, intimidating, or interfering with any member or employee of First United Methodist Church of Hammond, Louisiana, and further restraining and enjoining her from any property owned and/or controlled by First United Methodist Church of Hammond, Louisiana, and/or any employee or member thereof." Ms. Horton filed an answer and reconventional demand, in which she contended that the TRO was wrongfully issued and that the wrongful issuance had damaged her and caused her to incur attorney's fees. A short period before the commencement of the trial, the Church dismissed the main demand for the injunction, stating that the Church now felt that Ms. Horton no longer posed a danger to the Church, its staff, or its members. Therefore, the subject of the trial was limited to the claims asserted by Ms. Horton in the reconventional demand against the Church.
Some time shortly prior to March 5, Denise Horton began to exhibit signs of great stress, and erratic behavior. A number of events in her life had contributed to that stress. She had lost both parents in close proximity to each other, had become involved in litigation with her sister over their estates, had her home greatly damaged when a hot water heater ruptured in her attic, and had become become embroiled in disputes over its repair with her contractor and insurance company.
A few days prior to March 5, 2008, she had lunch with a friend and fellow church member, Nancy Williams. They discussed Ms. Horton's problems, and Ms. Williams became concerned. She stated:
And I was worried that she was having some kind of an acute emotional crisis . . . she was sobbing, saying that she had lost all hope, and just really repeating those type of things, and the situation was just too much for her to bear any more.
Ms. Williams questioned Ms. Horton as to whether she had any counselor or other professional to discuss these matters with, and upon learning that she did not, Ms. Williams suggested that she might counsel with their pastor, Reverend Joseph Donakey, about these issues. Ms. Horton agreed, and further allowed Ms. Williams to contact their pastor to set up an appointment. Ms. Williams conveyed the request to Rev. Donakey, and told him that it was done in Ms. Horton's presence and with her assent. She further told him that Ms. Horton appeared "unusually upset and distraught". Rev. Donakey set up an appointment that same afternoon, and they went outside the church, took a walk, and had a conversation that both seemed to feel had been productive.
A subsequent appointment was set for March 3, 2008, at 3:30 P.M. Rev. Donakey had a staff meeting scheduled earlier in the afternoon. Ms. Horton arrived much earlier in the afternoon, and became agitated when she could not see Rev. Donakey immediately, and burst into the room where the staff meeting was going on, expressed her displeasure at his not seeing her, and left.
On March 4, Ms. Horton called the church, asking to speak with Rev. Donakey. When a staff person, Eve Serbert, advised Ms. Horton that Rev. Donakey was tied up in a meeting, Ms. Horton responded that this was a "911 call" and asked if he would respond to her if she had a gun in her mouth.
Ms. Horton sent a number of e-mails to Rev. Donakey in the early hours of March 5. A review of these e-mails (FUMc ex. 11, 12, and 13) reveals their nonsensical nature, and certainly gives the impression that Ms. Horton was experiencing significant mental problems. Rev. Donakey ultimately responded by e-mail timed at 4:55 A.M. that he would set an appointment at the Church that afternoon at 3:30.
Notwithstanding the time set for the appointment, Ms. Horton arrived at the Church later that morning. When she was advised that Rev. Donakey was out of the office, Ms. Horton persisted in knocking on his office door, and, receiving no response, sat down on the floor with her back to his office door. Debi Petrolia, a Church secretary, statued that Ms. Horton seemed "urgent", "upset" and "not normal". Eve Serbert said that Ms. Horton was laughing to herself and seemed erratic, and that the office workers became frightened.
At some point around 11:00, Rev. Donakey arrived, and Ms. Horton insisted upon going directly into his office and closing the door. They remained inside the office for some 2-1/2 hours. At times, Ms. Horton could be heard speaking loudly from within. The staff tried on several occasions to buzz Rev. Donakey on his intercom, and got no response. A male staff member at one point forced the door opened, Ms. Horton leaning against it to prevent it's opening. After seeing Rev. Donakey seated in front of his desk, and making some type of eye contact that reassured him that Rev. Donakey was all right, he, went back outside.
Ms. Petrolia and Ms. Serbert reported hearing several statements made by Ms. Horton to the effect that "if someone comes in here they will get hurt", "over my dead body you're not leaving", and "gun in the ditch will kill my Methodist preacher".
Rev. Donakey testified as to a number of incidents which occurred in the office during that time. He stated that Ms. Horton stated at one point that if anyone tried to leave the office, they would be "hurt" and later that they would "die", that she sang nonsensical songs, grabbed him on the shirt collar several times and shook him, and made some statement to the effect that if his daughter was covered in gasoline and playing with matches, would he rescue her. She also said, unprovoked, "you know I will never hurt your daughter".
Rev. Donakey further stated that when they had initially entered the office, he had ushered Ms. Horton to one of the chairs in front of his desk and he sat down in the adjoining guest chair. He said that she placed some sort of bag down on the floor in front of her chair by his desk, and that he later became alarmed that she might have a gun in this bag. He stated that he knew she owned firearms, and had a real concern about doing anything which might further aggravate the situation, including walking around his desk to buzz the outside office on his phone.
Ms. Horton herself stated that it was "safe to say that there were things she did not recall about the meeting". She mentally estimated the total time that she and Rev. Donakey were in the office as being very much shorter than it actually was. She admitted to singing songs, asking Rev. Donakey to sit with her on the floor, and writing on colored paper some "silly things that were coming into my head".
Ultimately, the staff called 911, and Acadian Ambulance and Hammond Police Department personnel were dispatched to the Church. At that point, after some resistance, Ms. Horton was placed on a gurney and transported to the North Oaks Hospital emergency room. Police and ambulance workers who responded noted that Ms. Horton was sitting on the floor and babbling a number of things, including "dead Methodist in the ditch." The ambulance operator testified that her behavior was bizarre and that she had made statements to the effect that she wanted to kill her "priest" and set the church on fire.
After an evaluation at North Oaks, Ms. Horton was transported to the Cypress Psychiatric Hospital in Baton Rouge. She was kept overnight, and then released. There is little explanation in the evidence presented as to what transpired at Cypress.
The next day, Ms. Horton testified that she took a taxi from Cypress to a house she was renting in Albany, Louisiana. She then realized that she did not have her key, and that she was playing in her yard with her dogs, when a Livingston Parish Sheriff's deputy arrived. She said at that time she was "dozing" on her back porch, and would not talk to him. After he "went on for several hours" she agreed to get back in an ambulance to go back to North Oaks.
Deputy Brandon Ashford testified that he had been dispatched to do a "welfare check" on Ms. Horton, stemming from a call that she was wandering around her property. He stated that when he arrived, she was sitting on her back porch and talking nonsensically. He summoned Acadian Ambulance, and after initially refusing, Ms. Horton ultimately agreed to be transported back to North Oaks. Deputy Ashford did relate that no statements were made in his presence about suicide or harm to other persons.
On this occasion, Ms. Horton was seen in the North Oaks emergency room by Dr. Gary M. Mall. Dr. Mall testified that Ms. Horton seemed disoriented, and at some point, became "disruptive" to the point that she was administered some sedative. He obtained a history, which may have to some degree overstated what events had previously occurred, but his first hand impressions, coupled with this history, caused him to issue a Physician's Emergency Certificate, to hold Ms. Horton involuntarily, and she was then transported to the psychiatric wing at East Jefferson General Hospital.
From East Jefferson, Dr. Jonathan Rynning supplied Ms. Horton's primary treatment and observation. After this observation, and based on the history he had been provided, Dr. Rynning stated:
I was unwilling to let her out of the hospital. I didn't think it was safe for her to leave the hospital without being medicated, and without some kind of treatment plan; and that's why I filed for the judicial commitment.
Dr. Candace Cutrone, the Assistant Coroner in Jefferson Parish assigned to psychatric matters interviewed Ms. Horton on March 7, relative to the commitment, and reviewed her records. Based on these steps, Dr. Cutrone felt that Ms. Horton met the criteria for commitment based on "grave disability" and differentiated that finding from a finding of being suicidal or homicidal in that:
. . . grave disability means that there is a degree of dangerous (sic) to self or others, but generally based on impaired judgment, or, you know, inability to function logically, so I didn't — I didn't appreciate any intent of harm . . ." (emphasis supplied)
Ms. Horton ultimately spent close to four weeks at East Jefferson. She was largely non-compliant with treatment, partially due to her belief, as a recovering alcoholic and regular AA participant that she should not take any medications, and partly, apparently, because she felt there was no justification for her being involuntarily hospitalized in the first place.
Nevertheless, during her stay, treatment notes included observations that she was "distraught and agitated . . . hearing her preacher's voice . . . felt that the (preacher's) daughter was in danger, and could tell that something was wrong with the daughter just by looking at her . . ."
In addition, at one point during her stay, Nancy Williams went to visit Ms. Horton. At a previous time, while eating lunch together, the two of them had seen the actor, Ted Danson, in the restaurant where they were dining. He had begun to leave, forgetting his hat. Ms. Horton had caught his attention, to alert him to this fact. The two had joked that they "had lunch" with Danson.
In an apparent effort to lighten the mood, Ms. Williams reminded Ms. Horton of this event. Ms. Horton responded that Danson had been ". . . hired to put all this in motion . . ." meaning to conspire to have her hospitalized.
While he treated or observed Ms. Horton, Dr. Rynning described her as being in a "heightened state of emotionality" which he described as:
Well, your adrenaline system is pumped up; your heart's racing; you know, your fight or flight reflex is there; and you know, it's just, you're edgy; anxious; most people don't become psychotic in that condition.
Ultimately, a hearing was scheduled to determine whether Ms. Horton's confinement was to be extended. By that time, her attorney had engaged an independent psychiatrist to examiner her, and a compromise was worked out which led to her release. Dr. Rynning stated that, at the time of her discharge, he still diagnosed Ms. Horton as "psychotic-not otherwise specified" but that she was in better condition than on her admission. He was willing to go along with the release provided that she maintain a treatment program with her own doctor, and refrain from any access to firearms for six months or until her doctor determined that she presented no danger to others.
The psychiatrist called upon by Ms. Horton's attorney was Dr. Robert Blanche, a board certified psychiatrist. Dr. Blanche testified that he examined Ms. Horton on March 18 in conjunction with a pending hearing to determine if her involuntary hospitalization should be extended under the Physician's Emergency Certificate.
Dr. Blanche interviewed Ms. Horton, and reviewed her records. He stated that, at the time she was admitted to East Jefferson, it was his opinion that she was psychotic. He went on to state that by the time he consulted with her approximately two weeks later, that there was no longer any evidence of psychosis and that her mental subject examination was essentially normal. His conclusion was that:
. . . Ms. Horton was not a danger to self or others and whatever happened to her or the condition that she was in, rather, that the hospitalization had resolved and it was my opinion that she did not require confinement voluntarily in a psychiatric institution. I did recommend that — an aftercare plan which included a partial hospital treatment. I recommended to the court that I would continue her care on a day partial hospitalization program.
Dr. Blanche described the "day hospitalization program" as consisting of a 5 day per week program from 8:30 A.M. until 1:30 P.M., with group therapy sessions, weekly meetings with the doctor, and management of medications (Dr. Blanche did induce Ms. Horton to accept medications for depression and for sleep). He stated that such a program typically lasted from one to three months, or more if indicated.
Ms. Horton remained in this program for a period of approximately 4-6 weeks, and then was moved to an outpatient program, which consisted of sessions with the doctor, at first on a weekly basis, and gradually phasing down to monthly or quarterly conferences, as well as twice weekly sessions with a social worker gradually decreasing to once a week and then as needed. Dr. Blanche stated: "She may come in more often than that, but at this point, I consider her, you know, to be in maintenance and not in need of any kind of intensive treatment."
Dr. Blanche also stated that he thought Ms. Horton's relationship with her church was very important to her, and that being banned had contributed to the anxiety she had experienced. However, he also testified that while he did not feel that Ms. Horton's psychosis would have posed an actual danger or threat of harm to others, he did realize that her behavior at the time would be "disconcerting" or "frightening" to other people with whom she came in contact.
In the meantime, while Ms. Horton's treatment was taking place, the Church was left grappling with the situation, and an appropriate response. Rev. Donakey was obviously pretty shaken by the events. He also stated his concerns as to the safety of his family, given some of Ms. Horton's statements. Further, the Church operated a day care facility on the same grounds, and had a wedding upcoming for the following weekend, and he was concerned that she might return.
Brad Core was one of the officers with the Hammond Police Department who had responded to the March 5 incident, and removed Ms. Horton from Rev. Donakey's office. He returned to the Church the following day, and discussed the situation with Rev. Donakey, who had apparently learned that Ms. Horton had been released from the Cypress hospital. In this discussion, Officer Core made the statement that his contact with Ms. Horton had ". . . sent chills down my spine . . . I had never confronted a situation like that . . ." He told Rev. Donakey that he felt Ms. Horton had some sort of obsession with him, and suggested that the Church might engage Hammond Police officers as security for the school and the wedding, which was done for a short period. Significantly, he also suggested to Rev. Donakey that the Church obtain some type of restraining order against Ms. Horton's return, which Officer Core stated would give a police officer an immediate basis to remove her should she return, instead of going through some type of warrant process.
At some point during this conversation, a church member named Montecino approached the two in tears. She had apparently volunteered to take Ms. Horton's vehicle back to her house and check on her property, and she had found a large number of guns spread out on the floor of a room. She stated that she would not be involved any longer.
Also, at some later point, Rev. Donakey was asked to give testimony of the prior events in connection with the contemplated hearing on the issue of whether Ms. Horton was to be released from involuntary hospitalization, and so was aware that her release was a possibility.
LITIGATION HISTORY
Against the backdrop of all of these events, discussions were held at the Church as to what action, if any, the Church should take. There was apparently some reluctance to take legal steps to attempt to bar a church member from attendance, but it was ultimately determined that legal steps would be taken. Rev. Donakey had testified that the student massacre at Virginia Tech University had gone through his mind a number of times, as to the fact that there was in that incident, some forewarning of the potential for harm, but that no one had acted on this warning. Ultimately, the Church agreed to seek the temporary restraining order, and Mark Montz signed an affidavit as an agent in support of its issuance, and this pleading was filed April 1, 2008.
The Church's then attorney must have been aware of Ms. Horton's representation by counsel, and supplied the proposed pleading to counsel, who faxed objections to its wording to the Court. Thereafter, the Court modified the wording of the proposed order by inserting the words "without their consent" following the prohibition against contact with church members or employees, before signing the temporary restraining order. .
A hearing was conducted on the rule for preliminary injunction, and on exceptions Ms. Horton had filed (which related to the standing of the Church to seek injunctions against contact with individual Church members). In accordance with limited evidence received at that hearing, and based on the discussions and representations made to the Court at that time, including the representation that Ms. Horton had no intention of returning to the Church and therefore no objection to the issuance of a preliminary injunction (provided it was limited in scope to the Church and its employees directly, and provided that it was issued with reservation of her rights to continue to assert her damage claim for wrongful issuance of the temporary restraining order).
CONTENTIONS OF THE PARTIES
As stated above, at some point fairly shortly before the scheduled trial date in this action, the Church voluntarily dismissed all claims for injunctive relief. In so doing, the Church stated that it now agreed that Ms. Horton did not pose a risk of harm to the Church or its staff. Accordingly, the sole issue to be adjudged in this matter is whether Ms. Horton is entitled to any damages under her reconventional demand, and, if so, the amount of such damages.
In conjunction with this issue, Ms. Horton presented her own testimony as to her anguish at being barred from the Church. She further presented testimony of Dr. Scott, who had examined her, apparently for the purpose of giving testimony in this case. Dr. Scott seemed to feel that Rev. Donakey had mishandled the matter initially, and that the situation was exacerbated by "inflammatory" comments made by persons such as Officer Core. While he had not read Dr. Rynning's deposition or review the East Jefferson records, he concurred with the diagnosis that Ms. Horton was psychotic when the initial episode occurred and that she did need the initial hospitalization. He stated, however, that as she worked toward release from the involuntary hospitalization and was eventually discharged, the restraining order amounted to a loss of her main support group, and in a sense, "pulling the rug out from under her". This analysis was also put forward by Terry W. Kontos, the social worker/ counselor with whom Ms. Horton treated under the direction of Dr. Blanche. Finally, Bill Eberhardt, a friend and former fellow Church member, and a member of Ms. Horton's AA group testified as to problems she encountered with being ostracized after this incident. Mr. Eberhardt apparently resigned his membership over the issue, although he testified that he had never spoken with any of the Church staff about the events that took place March 5, but had gotten his information from what he had heard after the lawsuit was filed, and that he never heard a lot of people at the Church actually discuss the incident.
While possible evidence as to mitigation of damages, or possibly objectionable as settlement discussions, nonetheless some correspondence between Ms. Horton and Rev. Donakey prior to the initial court hearing was entered into evidence without objection. (FUMc #s 15, 16, 17) This correspondence commences with Ms. Horton's request to be maintained on the membership rolls and treated as a "homebound" parishioner, being provided visitation and tapes of sermons, for example, Rev. Donakey's response basically applauding such a solution and encouraging some out of court means of settling the matter, in concert with Ms. Horton's counselor, and Ms. Horton's reply to that letter, demanding dismissal of the lawsuit and payment of her attorney's fees as a basis for any reconciliation. By the time of the ultimate trial itself, Ms. Horton had amassed an astounding amount of litigation and legal expenses in this matter totaling almost $80,000.00!
At trial, Rev. Donakey expressed his regret that the whole matter had dragged on through litigation. He testified that early on, the Church was trying to balance its concern as to the welfare of one of its congregation as against the concerns of safety to its membership and staff. He stated that from the time of Ms. Horton's release from East Jefferson, he had expressed to the Church's former attorney his desire that, upon some type of verification from Ms. Horton's treatment provider that she did not pose any danger to others, that the restraining order be dropped such that some healing could perhaps take place. Rev. Donakey seemed to sum up his feelings with disgust for the legal process and regulations such as HPPA in thwarting any chance for an amicable resolution.
Perhaps some further understanding can be gleaned from the deposition testimony of Terry Kontos, Ms. Horton's counselor. As stated above, Ms. Kontos related the hurt Ms. Horton had felt, almost as betrayal or abandonment, by the actions of her Church. Ms. Kontos had discussed these feelings with Ms. Horton, including alternative solutions of attempting to work through the problems on an internal basis, as opposed to direct confrontation, such as litigation, which she recognized as one means of therapeutically getting a problem "off your chest". As to the latter, she stated:
. . . and the other is that they need to tell their story. They want to tell their story of what happened for themselves and for others. And, you know, we go over the fact that you can do that, and if it's therapeutically healing for you, okay, as long as you understand on any given Saturday, any football team can win. So it's not a given that you will get justice as they see it.
And Denise has felt very strongly that she needed to stand up and tell her story about the harm that it had done to her in her understanding, and these are my words, "that a church should be a place of empathy and compassion and support, and especially when the parishioner is down and in a difficult place." And she truly didn't understand why that response wasn't there. And, you know, her feeling about the lawsuit is, and I believe Denise is a highly principled person, this is right and this is wrong, and she has learned to stand up for herself so that she can feel good about that. It's been costly, but I don't know, knowing Denise the way I think I do, I don't know that she could have done anything else and be okay with herself. And that's the bottom line. You got to be okay with yourself.
RULING
Ms. Horton in her reconventional demand argues two bases on which she contends that the temporary restraining order should not have issued. The first is that it was legally defective from a procedural standpoint. Ordinarily, an affidavit or verification that a legal pleading which has been filed is true is required to be made by a person who has first hand knowledge of the events described in the verification affidavit.
In this case, the verification affidavit was signed by Mark Montz. Mr. Montz was not personally present at the Church on March 5, 2008. Thus any information he had as to the facts upon which the request for the temporary restraining order was made were not firsthand information. However, Code of Civil Procedure Article 3603 provides that an affidavit may be made by a party's agent. In this case, the original plaintiff was the Church, not an individual. Based upon the uncontradicted evidence, the Church elected to take this step, and Mr. Montz, a trustee, acted as the agent in signing the affidavit. This contention is therefore without merit.
The other contention made by Ms. Horton is that the temporary restraining order was wrongfully granted because there was an inadequate basis for ordering that she not return to the Church or to contact Church staff without their permission. This supposition appears to the Court to be based on some feeling that, regardless of the events that transpired, the Church should have realized that Ms. Horton did not actually pose a real danger to the staff or members of the congregation. This Court simply cannot ascribe such a duty to the Church, given the series of events which admittedly transpired in the office on March 5, and the aftermath including Ms. Horton's hospitalization. Even her own doctor's state that she was psychotic at that time, and that it was appropriate that she be hospitalized.
Ms. Horton admits that she does not recall some of the events or statements that took place during her breakdown in the office. In the absence of any contradiction, the Court must presume the statements threatening death or bodily harm were actually made. Considering these statements, the Court cannot conclude that the Church acted improvidently in seeking the restraining order, and, in fact, might have concluded that it would have been improvident not to have sought this protection, especially when it was suggested as a security measure by a police officer giving assistance to the Church. The Virginia Tech analogy mentioned by Rev. Donakey in his testimony seems to certainly be appropriate. Consequently, this Court cannot hold that the Church had no legal basis to seek the temporary restraining order, nor that its issuance was legally wrongful.
The Court further notes that it would be given wide latitude in assessing damages or attorney's fees, even if the issuance of the temporary restraining order had been determined to be wrongful. Under the facts and circumstances of this case, no such award would have been made. Therefore, judgment will be rendered on the reconventional demand, dismissing Ms. Horton's claims at her costs.
In closing, this Court would make several final observations. This ruling in no way implies that the Court believes that Ms. Horton actually had any intention of harming anyone physically. Her condition on March 5, 2008, was driven by forces which had risen above her level of control. Mercifully, no one, including Ms. Horton, was hurt as a consequence. Thankfully, it appears that she now successfully deals with those burdens and stresses which helped create the situation which arose that day.
Further, this Court is certainly sympathetic with Ms. Horton's feelings, and was moved by the evidence of the effect of exclusion from her congregation had upon her at a time when she needed solace and support. It is to her credit that she seems to have overcome these issues as well, and moved on with her life.
By the same token, the Court can only imagine the devastating effect all of this had upon the Church, its Pastor, congregation and staff. It was obviously difficult for a Church to take such an action. This ruling only holds that the action was not unjustified, given the circumstances presented.
It is regrettable that all of this controversy could not have been put aside, and resulted in, as first noted in this opinion, this sad litigation. Hopefully, both sides will heal and move on.
Amite, Louisiana, this 26th day of December, 2009.