Opinion
2023 CA 0730
02-01-2024
CHRISTOPHER AARON MASON v. MICHAEL THOMPSON
Scott P. Gaspard Baton Rouge, Louisiana Counsel for Defendant/Appellant Michael Thompson Jarrett P. Ambeau Baton Rouge, Louisiana Counsel for Plaintiff/Appellee Christopher Aaron Mason
NOT DESIGNATED FOR PUBLICATION
Appealed from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana Case No. 135,749 The Honorable Jason Verdigets, Judge Presiding
Scott P. Gaspard
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
Michael Thompson
Jarrett P. Ambeau
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellee
Christopher Aaron Mason
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
THERIOT, J.
In this case, the defendant has appealed from a trial court judgment granting an order of protection in favor of the plaintiff, and the plaintiff has filed an answer to the appeal. For the reasons that follow, we affirm the trial court judgment, grant the answer to the appeal in part, and deny the answer to the appeal in part.
FACTS AND PROCEDURAL HISTORY
On December 7, 2022, Christopher Mason filed a "Petition for Protection from Abuse" against his former brother-in-law, Michael Thompson, on behalf of himself and his three minor children. Mason alleged, among other things, that Thompson has stalked and harassed him and his children since Mason's divorce from Thompson's sister. The trial court issued a temporary restraining order based on a finding that the allegations of the petition constituted an immediate and present danger of stalking and set the matter for a hearing.
On February 7, 2023, Thompson filed a "Motion in Limine to Limit or Exclude Evidence." Thompson's motion alleged that on December 21, 2022, Thompson sent Mason discovery requests, including interrogatories, requests for admissions, and requests for production of documents, and Mason failed to respond timely to the discovery requests. The requests for admissions included, among other things, a request for Mason to admit that the allegations set forth in his petition for a protective order were false. As a result of Mason's failure to respond timely, Thompson urged that the requests for admissions were deemed admitted by operation of law, and he asked the trial court to disallow any attempts by Mason to offer evidence as to any facts conclusively established as a result of his failure to respond to the admissions. Mason opposed the motion in limine, noting that he responded to all discovery requests on February 16, 2023, and moved to withdraw the admissions.
A hearing officer considered Thompson's motion in limine on March 7, 2023, and issued a recommendation that the petition for protective order be dismissed because the fact that the allegations of the petition were false was conclusively established by Mason's failure to respond to Thompson's requests for admissions. Mason objected to the hearing officer's recommendation that the petition for protective order be dismissed, and Thompson also objected to the recommendation because it failed to recommend that he be awarded attorney fees and costs. Following the parties' objections, the matter was set for contradictory hearing in the trial court.
A contradictory hearing was held on April 3, 2023. At the beginning of the hearing, the trial court noted for the record that it had denied Thompson's motion in limine after discussion with counsel and instructed counsel to make an objection for the record if there was an objection to the trial court's denial of the motion in limine. No objection was made, and the trial court proceeded to the merits of the matter.
At the conclusion of the hearing on April 3, 2023, the trial court issued a "Uniform Abuse Prevention Order," effective through October 3, 2023, ordering Thompson to stay away from and not contact, abuse, harass, stalk, follow, track, monitor, or threaten Mason or his minor children. The protective order issued by the trial court also indicated (by initials and check marks) that Thompson was ordered to pay "all court costs, payable to__no later than __/ __/__(date)" and "attorney fees, payable to__in amt. of $__no later than__/ __/__(date)." However, the trial court failed to fill in any of the blanks with names, amounts, or dates.
Thompson appealed, arguing that the trial court erred in denying his motion in limine, issuing the protective order, and ordering him to pay attorney fees and costs. Mason filed an answer to the appeal, seeking a modification of the trial court judgment in order to make the protective order permanent and an award of attorney fees and costs for defense of a frivolous appeal.
DISCUSSION
The "Protection from Stalking Act," La. R.S. 46:2171, et seq., was enacted to provide a civil remedy for stalking victims against perpetrators, offering immediate and easily accessible protection. Raymond v. Lasserre, 2022-0793, p. 5 (La.App. 1 Cir. 3/6/23), 368 So.3d 82, 87, writ denied, 2023-00893 (La. 10/31/23). For purposes of the Protection from Stalking Act, "stalking" means any act that would constitute the crime of stalking under La. R.S. 14:40.2 or cyberstalking under La. R.S. 14:40.3. La, R.S. 46:2172.
The purpose of the Protection from Stalking Act is set forth in La. R.S. 46:217), which provides:
The legislature hereby finds and declares that there is a present and growing need to develop innovative strategies and services which will reduce and treat the trauma of stranger and acquaintance stalking. The nature of stalking allegations are sometimes not easily substantiated to meet the prosecution's burden of proving the case beyond a reasonable doubt, and victims of stalking are left without protection. Orders of protection are a proven deterrent that can protect victims of stalking from further victimization; however, many victims are forced to pursue civil orders of protection through ordinary process, often unrepresented, rather than through a shortened, summary proceeding. Additionally, victims of stalking are not always aware of the vast resources available to assist them in recovering from the trauma associated with being a victim of stalking. It is the intent of the legislature to provide a civil remedy for victims of stalking that will afford the victim immediate and easily accessible protection.
Despite the Act's reference to criminal stalking statutes, petitions for protection from stalking are not criminal proceedings; the sole relevance of the criminal stalking statutes in the context of a petition filed under the Act is to provide the definition of stalking. Raymond, 2022-0793 at p. 5, 368 So.3d at 87.
Louisiana Revised Statutes 14:40.2(A) defines stalking as the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking includes but is not limited to the intentional and repeated uninvited presence of the perpetrator at another person's home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal, written, or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted.
Pursuant to La. R.S. 46:2173, a victim of stalking by a perpetrator who is a stranger to or acquaintance of the victim shall be eligible to receive all services, benefits, and other forms of assistance provided by Chapter 28 of Title 46, which is the "Protection from Family Violence Act" and includes specific statutes on "Domestic Abuse Assistance," provided the services, benefits, and other forms of assistance are applicable based on the status of the relationship between the victim and perpetrator.
Pursuant to the Domestic Abuse Assistance statutes, La. R.S. 46:2131, et seq., upon good cause shown in an ex parte proceeding, the court may enter a temporary restraining order as it deems necessary to protect a person from an immediate and present danger of abuse. La. R.S. 46:2135(A). If a temporary restraining order is granted without notice, the matter shall be set within twenty-one days for a rule to show cause why a protective order should not be issued, at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(B). Proof is sufficient to constitute a preponderance of the evidence when the entirety of the evidence, both direct and circumstantial, shows that the fact sought to be proved is more probable than not. Head v. Robichaux, 2018-0366, pp. 3-4 (La.App. 1 Cir. 11/2/18), 265 So.3d 813, 816.
Louisiana law mandates that trial courts use a uniform form for the issuance of any protective or restraining order, called the "Uniform Abuse Prevention Order." La. R.S. 46:2136.2(C).
A trial court's decision to issue or deny a protective order is reversible only upon a showing of an abuse of discretion. Head, 2018-0366 at p. 4, 265 So.3d at 817. Additionally, since the trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, its credibility determinations will not be disturbed on appeal absent manifest error. Id.
On appeal, Thompson argues that the trial court erred by denying his motion in limine and not deeming the requests for admission served on Mason admitted and conclusively established as facts for purposes of the litigation.
A party may serve upon any other party a written request for the admission of the truth of any relevant matters of fact. La. C.C.P. art. 1466. Generally, the matter is deemed admitted if the party to whom the request is directed does not respond within 30 days after service of the request. La. C.C.P. art. 1467(A). Any matter deemed admitted pursuant to La. C.C.P. art. 1467 is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. La. C.C.P. art. 1468. As acknowledged by this Court in Hall v. Our Lady of the Lake R.M.C., 2006-1425, p. 7 (La.App. 1 Cir. 6/20/07), 968 So.2d 179, 183-184, article 1467 is not a trap set for the litigant; it provides many options for the party upon whom the request is served. For example, if the party cannot answer within the statutorily provided thirty-day time frame, the court may allow additional time to respond. See La. C.C.P. art. 1467(A). The court may permit withdrawal of an admission when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal of the admission will prejudice him in maintaining his action or defense on the merits. La. C.C.P. art. 1468; Hall, 2006-1425 at p. 6, 968 So.2d at 183. Additionally, Louisiana courts have allowed late-filed denials to requests for admissions to constitute requests for withdrawal of those admissions, even if the responses were extremely late and were not presented to the court by a motion to withdraw or amend the admissions. It is within the trial court's discretion to determine whether to allow the withdrawal of the admission. Hall, 2006-1425 atp. 6-7,968 So.3d at 183; Apache Corp, v. Talen's Marine & Fuel, LLC, 2017-0714, pp. 5-6 (La.App. 1 Cir. 2/7/18), 242 So.3d 619, 622-23.
In this case, the requests for admissions and other discovery requests were delivered to Mason on December 22, 2022. When Mason did not respond to the requests within thirty days, Thompson filed a motion in limine on February 7, 2023. Mason served his responses to Thompson's discovery requests by email on February 16,2023, and moved for withdrawal of the admissions on February 28, 2023. At the April 3,2023 contradictory hearing, the trial court explained to the parties that it was denying Thompson's motion in limine because it did not believe that the type of discovery and motion practice employed by Thompson was appropriate considering the urgent nature of proceedings for a protective order. Given the circumstances of this matter, and considering the fact that Thompson did not object to this ruling when given the opportunity to do so, the trial court did not abuse its discretion in denying Thompson's motion in limine.
Next, Thompson argues that the trial court erred in issuing the protective order because there was insufficient evidence of stalking.
Although the protective order at issue expired before submission of this matter for consideration on appeal, this assignment of error is not moot because the protective order also ordered Thompson to pay costs and attorney fees.
At a hearing on a protective order, the petitioner must prove the allegations by a preponderance of the evidence. Raymond, 2022-0793 at p. 7, 368 So.3d at 88. Proof is sufficient to constitute a preponderance of the evidence, for the purposes of a protective order, when the entirety of the evidence, both direct and circumstantial, shows that the fact sought to be proved is more probable than not. Id.
A trial court's decision to issue or deny a protective order is reversible only upon a showing of an abuse of discretion. Raymond, 2022-0793 at p. 7, 368 So.3d at 88. Additionally, since the trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, when conflicting testimony exists, this court cannot disturb the trial court's reasonable credibility evaluations and reasonable factual inferences absent manifest error. Id.; Compton v. Chatman, 2021-0706, p. 6 (La.App. 1 Cir. 2/25/22), 341 So.3d 581, 586, writ denied, 2022-00527 (La. 5/3/22), 337 So.3d 154.
As previously discussed, stalking is the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. La. R.S. 14:40.2(A). In issuing the protective order, the trial court clearly made a credibility call, choosing to believe Mason's testimony that there had been multiple incidents where Thompson randomly appeared at places where Mason and his children were present, and that Thompson either watched them from his car or, on one occasion, approached them, and that Mason was alarmed by his behavior. Based on the evidence presented, and the credibility call made by the trial court, we cannot say that the trial court abused its discretion in issuing the protective order.
Thompson's next argument is that the trial court abused its discretion in ordering him to pay court costs and attorney fees. Louisiana Revised Statutes 46:2136.1 requires that the perpetrator of abuse be ordered to pay all court costs, attorney fees, costs of enforcement and modification proceedings, costs of appeal, evaluation fees, and expert witness fees incurred in maintaining or defending any proceeding concerning domestic abuse assistance, including all costs of medical and psychological care for the abused adult, or for any of the children, necessitated by the domestic violence, unless it is determined that the petition for abuse was frivolous. See Rogers v. Rogers, 2019-0143, pp. 3-5 (La.App. 1 Cir. 9/27/19), 287 So.3d 749, 751-52. Since we have found no error in the trial court's issuance of the protective order, the trial court likewise did not err in ordering Thompson to pay court costs and attorney fees.
As noted above, Mason answered the appeal, asking that this Court modify or amend the trial court judgment (1) to make the protective order permanent; (2) to provide that the amount of costs and attorney fees awarded for the trial court proceeding shall be determined at the conclusion of this appeal on remand to the trial court; and (3) to award Mason damages, attorney fees, and costs incurred in the defense of Thompson's frivolous appeal, "in an amount to be determined at the conclusion of this appeal on remand to the trial court."
Although the duration of a final protective order may be extended in the trial court's discretion after a contradictory hearing in accordance with La. R.S. 46:2136(F)(1), given the fact that the protective order at issue in this matter has expired, Mason's request that this court modify the duration of the protective order to make it permanent is moot.
Mason also requested the trial court judgment be modified to state that costs and attorney fees incurred in the trial court proceedings will be set by the trial court on remand following appeal. Pursuant to the 2021 amendments to La. C.C.P. art. 2088, the trial court retains jurisdiction while an appeal is pending to set and tax costs, expert witness fees, and attorney fees. See La. C.C.P. art. 2088(A)(10) and Comments 2021, comment (a); Raymond, 2022-0793 at p. 13, 368 So.3d at 93. Accordingly, this issue remains within the jurisdiction of the trial court and we need not address it on appeal.
Finally, Mason requested that this court award damages, costs, and attorney fees incurred in defense of the appeal, in amounts to be determined by the trial court on remand. Louisiana Revised Statutes 46:2136.1 provides that the perpetrator shall pay all attorney fees and costs of appeal incurred, unless there is a finding that the petition was frivolous. As we have affirmed the issuance of the protective order, there has obviously been no finding that Mason's petition for a protective order was frivolous. Therefore, Thompson is ordered to pay $2,500.00 in attorney fees for work done on this appeal, as well as all costs of this appeal.
DECREE
For the reasons set forth herein, the trial court judgment granting an order of protection in favor of Christopher Mason is affirmed. The answer to the appeal is granted to the extent that it requests an award of costs and attorney fees incurred on appeal, and is otherwise denied. Christopher Mason is awarded $2,500.00 in attorney fees. Costs of this appeal are assessed to defendant-appellant, Michael Thompson.
AFFIRMED; ANSWER TO APPEAL GRANTED IN PART AND DENIED IN PART.
GREENE, J., dissenting.
I respectfully dissent.
Louisiana Revised Statutes 46:2172 provides that "[a]s used in this Chapter, 'stalking' means any act that would constitute the crime of stalking under R.S. 14:40.2 or cyberstalking under R.S. 14:40.3." Louisiana Revised Statutes 14:40.2(C)(2) requires a "[p]attern of conduct" defined as a "series of acts over a period of time, however short, evidencing an intent to inflict a continuity of emotional stress upon the person." On December 4, 2022, Mr. Thompson appeared at a public park in Prairieville where Mr. Mason was with his children. Other than that date, on which Mr. Mason was issued a summons for simple battery for pushing Mr. Thompson, no specific dates were given for any other incidents. Mr. Mason alleged that Mr. Thompson was parked in a restaurant parking lot when he and his kids were there a few months earlier, and that Mr. Thompson showed up at the same public park a few other times, but no dates or other detailed information were given for these incidents. I find it very relevant that Mr. Mason is involved in a very contentious divorce with Mr. Thompson's sister. I also find it very relevant that Paragraph 21 of the Order of Protection signed by the trial court on March 8, 2023 prohibited Mr. Thompson from being at his sister's house when the children are in her custody. In short, I do not believe there was sufficient evidence for the trial court to grant a protective order.